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SENATE COMMUNITY AFFAIRS COMMITTEE
INQUIRY INTO THE WELFARE REFORM AND REINSTATEMENT OF RACIAL DISCRIMINATION ACT BILL 2009 AND OTHER BILLS

OPENING STATEMENT

Mr Mick Gooda
Aboriginal and Torres Strait Islander Social Justice Commissioner

Mr Graeme Innes AM
Disability Discrimination Commissioner and
Race Discrimination Commissioner

Australian Human Rights Commission

Commissioner Gooda – Introductory Remarks

  1. Madame Chair, Deputy Chair and Senators. Thank you for the opportunity for the Commission to provide further evidence relating to our submission to this inquiry.
  2. As the Aboriginal and Torres Strait Islander Social Justice Commissioner and the Race Discrimination Commissioners we have the respective responsibilities to: review the impact of laws and policies on Indigenous peoples and monitor the enjoyment and exercise of human rights for Indigenous Australians; and ensure that all Australians are treated equally under the Racial Discrimination Act 1975 (Cth) (RDA).
  3. The Commission has welcomed the Government’s intention to reinstate the RDA and to redesign identified NTER measures so that they are consistent with the RDA.
  4. Our submission identifies aspects of the Bills that we consider achieves this purpose as well as those that still have a discriminatory effect, or that may not be compliant with Australia’s human rights obligations. A summary of the measures that we commend is at paragraph 7 of the submission.
  5. Overall, the Government’s Bills make some positive improvements to the current measures and if implemented will improve the situation for Indigenous peoples in prescribed communities in the Northern Territory. However, it is the Commission’s view that the Bills do not fully address entirely the breaches of human rights that currently exist and will not ensure full consistency with the RDA.
  6. Our submission identifies specific amendments necessary to ensure that the NTER measures put in place will be non-discriminatory and fully respect human rights.
  7. As you know, I am new to the position of Social Justice Commissioner. My predecessor has provided valuable guidance on how to improve the intervention to ensure it is effective. I agree with the analysis that Mr Calma provided in his 2007 Social Justice Report. And I particularly agree with Tom’s assessment that the measures in place are not conducive to creating sustainable change in Aboriginal communities. Sustainable outcomes will only occur through working in true partnership with communities – supporting their initiatives and with ownership of both the problems and the solutions lying with the community. We still have a way to go to achieve this through the NT intervention. I will remark on some of the individual measures after Graeme has spoken about the RDA implications of the Bills.

Commissioner Innes – Remarks relating to the RDA

  1. Senators, as the Race Discrimination Commissioner I would like to highlight three aspects of our submission that refer specifically to the RDA.
  2. First, the Government’s Bills lift the suspension of the RDA in relation to the NTER legislation and actions done under it. However, the Bills still leave in place a number of discriminatory elements of the NTER regime. These are not reversed by the Bills.
  3. For example, under the Government’s Bills, the five-year leases will continue to be excluded from the protections afforded by the RDA. Retaining and protecting potentially discriminatory aspects of the NTER from challenge appears contrary to the intention of ‘reinstating’ the RDA.
  4. We note that this is another example of a situation where the RDA has been displaced by other federal laws and again in relation to Indigenous peoples.
  5. The Commission has provided recommended actions to address this. The most significant is to include a ‘notwithstanding clause’ in the bills to ensure that the RDA is effectively applied to all measures under the intervention legislation and to also remove Item 4 of Schedule 1 of the Government Welfare Reform Bill.
  6. Secondly, the Commission notes that a continued suspension of the RDA for any period of time is unacceptable. While we understand the pragmatic basis for a delay in reinstating the Act, we do not believe that the circumstances warrant such a delay. Our primary reason for this is that if the Government is confident that the measures, as redesigned by the Bill, will be non-discriminatory when they come into force, then there is no need for delay. The possibility of legal action occurring prior to redesigned measures being implemented is, in our view, not an appropriate basis for continued suspension of rights. It amounts to an abundance of caution taken at the expense of the rights of Indigenous peoples.
  7. The Commission also sees that the ‘staggered’ reinstatement of the RDA proposed in the Government’s Bills will create confusion among communities as to whether or not their rights are protected and what remedies are available to them.
  8. At a practical level what I mean by this is as follows: if passed, new income management provisions will progressively replace the existing provisions – as well as being applied to new categories of people. The RDA is not suspended in relation to these measures.
  9. For those who continue to be subject to the existing income management regime, they will not be protected until after 31 December 2010 or until they are transitioned on to the new regime sometime between July and December this year.
  10. The result is complex and arbitrary arrangements for who does have their rights protected and who doesn’t. It will undermine confidence in the Government and undermine the commitment that it has expressed for equality for all.
  11. We have already seen a significant erosion of confidence from Aboriginal communities in the NT about their rights being protected. The suspension of the RDA and the NT Anti-Discrimination Act has meant that very few complaints have been received about any violation of rights – not just those violations that occur under the intervention. The Commission believes it to be a very serious problem when laws designed to protect the most vulnerable are damaged in such a way. It is a problem with long term implications and will require concerted efforts from government to rebuild faith among Indigenous communities. The continuation of supending these Acts will further add to this damage in the meantime.
  12. As a result, the Commission recommends the Government Bills be amended to reinstate the RDA and state/ territory anti-discrimination legislation for all NTER measures no later than 1 July 2010.
  13. Third, let me say something about classifying measures as ‘special measures’. There is no such thing in international law as an exemption to racial discrimination. Special measures are very different to this and have a beneficial, not a detrimental, purpose.
  14. The redesigned measures under the Government’s Bills will not meet the requirements of a special measure where:
    • The government’s redesign consultations do not meet the standard of consultation and consent of the affected group
    • There is insufficient current and credible evidence which shows that the measure will be effective
    • There are alternative means of achieving the objective that are not as restrictive of affected persons’ human rights
    • There are inadequate mechanisms for monitoring and evaluating the measure to ensure if it is working effectively and if its objective has been met.
  15. The Commission’s submission notes some limitations of the redesign consultation processes undertaken by the Government. Specifically, we note that the consultations were not designed or intended to seek consent for measures that the Government seeks to classify as ‘special measures’.
  16. Where a special measure such as the alcohol restrictions operates to limit certain rights of part or all of an affected group, the issue of consent becomes of paramount concern. 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.

Commissioner Gooda – Remarks relating to individual measures

  1. To conclude, let me highlight some of the impacts of the individual measures under the Government’s Bills on Aboriginal and Torres Strait Islander peoples.
  2. First, the redesigned income management measures are an improvement because they change the income management measures from a blanket approach based on race, to measures that are more generally applicable and based on social disadvantage.
  3. The Commission supports the components of the proposed income management scheme that are compliant with the RDA and human rights standards. This includes: voluntary income management, the matched savings incentives, exemption provisions, processes for review of decisions and the continuation of the last-resort approach for targeted risk areas in relation to child protection, school enrolment, school attendance and the Queensland Family Responsibilities Commission.
  4. In contrast the Commission is concerned that the broad reach and automatic application of the ‘disengaged youth’ and ‘long-term welfare payment recipients’ categories could result in a disproportionate number of Aboriginal people being unnecessarily income-managed.
  5. This risk stems from the limited access to education, training and employment for Aboriginal people, particularly in remote communities in the Northern Territory, and the consequent high proportion of Aboriginal people accessing welfare payments for extended periods.
  6. The Commission has recommended that the categories of ‘disadvantaged youth’ and ‘long-term welfare payment recipients’ be reformulated so that inclusion is dependent on individual case assessment and that it is applied for a defined period of time and any continuation is subject to regular review.
  7. The Commission notes that income management in the NT is costing approximately $100 million per year – or roughly $5000 per participant. We see it as essential that this includes an individual assessment of needs. If it doesn’t, from my experiences and from Graeme’s in the disability sector, then it is very hard to see how it will contribute to meaningful change over a longer term cycle. What we are proposing should not be beyond the capacity of government and it should be fundamental to how all welfare services are delivered.
  8. The Commission notes from the experience of other income management schemes, that the success of an income management scheme comes from such individual support, including through linking you into additional support programs in the form of financial, literacy/budgeting skills development for welfare recipients, safe houses for women and men, and alcohol and substance abuse programs.
  9. The Commission supports the participation of Indigenous peoples in developing; implementing and monitoring alcohol management plans and ensuring all alcohol management processes are consistent with the RDA.
  10. However, the Commission would like to see all alcohol restrictions are supplemented by investment in infrastructure in the health and mental health sectors (including culturally appropriate detoxification facilities) and investment in culturally appropriate community education programs delivered by Indigenous staff.
  11. In relation to the five year leases, the Commission notes with concern that so long as compulsory five-year leases remain in place and are only applied to Indigenous communities these provisions are racially discriminatory.
  12. The Commission supports the intention of the government to enter into voluntary lease arrangements with traditional owners.
  13. Accordingly, the Commission recommends the Government Bills be amended to remove the capacity to compulsorily acquire any further five-year leases under Part 4 of the NTNER Act and commit to obtaining the free, prior and informed consent of traditional owners to enter into voluntary lease arrangements for existing compulsory lease arrangements.
  14. The Commission also views the business management areas powers in the legislation to be disproportionate and unnecessary. There are other avenues already in existence for addressing service delivery and governance issues and the fact that the powers have not yet been used is further evidence that they are not necessary. The Commission has recommended the Government’s Bills be amended to remove the business management areas powers.
  15. Finally, the submissions draws attention to the limited monitoring and evaluation measures in place to ensure that reliable evidence is available as to the effectiveness of existing and redesigned NTER measures.
  16. The Commission encourages stronger data collection structures be established to develop a proper evidence based approach for determining if the NTER measures are effective and should be continued or expanded in the future.
  17. Subject to the above recommendations for amendments the Commission supports the Government’s Bills.
  18. Thank you for the opportunity to appear before the Committee.