Emergency Welfare Reforms

See Commonwealth, Parliamentary Debates, House of Representatives, 7 August 2007, 2, 4, 5 (Mal Brough, Minister for Indigenous Affairs).

Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth), s 123TE (hereafter Welfare Payment Reform Act 2007 (Cth)). Clearly, the national regime also applies to the Northern Territory and its welfare recipients. But when discussing the ‘Northern Territory regime’, I am concerned with the separate regime directed towards remote Indigenous communities within the Northern Territory already in operation and which is exempted from the Racial Discrimination Act 1975 (Cth): Welfare Payment Reform Act 2007 (Cth), s 4.

Although the ‘Queensland Commission’ awaits establishment by Queensland legislation (see Welfare Reform Act 2007 (Cth), s 123TC, definition of ‘Queensland Commission’), this regime targets the Indigenous communities of Hope Vale, Coen, Aurukun and Mossman Gorge: Explanatory Memorandum, Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 (Cth) at 5. This regime is also exempted from the Racial Discrimination Act 1975 (Cth): Welfare Payment Reform Act 2007 (Cth), s 4.

For a summary of the regimes see Explanatory Memorandum, Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 (Cth) at 4.

For example, see Department of Families, Housing, Community Services and Indigenous Affairs (formerly the Department of Families, Community Services and Indigenous affairs) (2007) Welfare Payments Reform – Helping Children At Risk of Neglect <http://www.facsia.gov.au/internet/facsinternet.nsf/family/welfare_children_neglect.htm> accessed 17 December 2007.

Discussed in subsequent paragraphs.

As stated by Minister Brough, ‘[t]his bill extend[s] the mutual obligation framework’: Commonwealth, Parliamentary Debates, above n 1, at 2.

As explained by Kevin Andrews, the earlier Welfare to Work reforms introduced ‘mutual obligation requirements' in a bid to ‘get the right balance between obligations and support’: Commonwealth, Parliamentary Debates, House of Representatives, 9 November 2005, at 8 (Kevin Andrews, Minister for Employment and Workplace Relations).

The portion of income quarantined is determined by reference to the circumstances attracting income management and the category of welfare payment.

See Social Security (Administration) Act 1999 (Cth) part 3B (income management regime) division 4 (income management accounts). Part 3B was inserted by Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17.

The legislation prescribes a list of items considered ‘priority needs’ which may be purchased using managed funds: Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) s 123TH. Excluded and excluded services are excluded from ‘priority needs’: Social Security (Administration) Act 1999 (Cth) s 123TI.

Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) s 123TI.

Social Security (Administration) Act 1999 (Cth) s 123TI(1)(d) and (2)(b).

Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) s 23TB.

For example, with the consent of the welfare recipient, vouchers may be issued in the name of a third party: Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) s 123YC; see also Explanatory Memorandum, Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 (Cth) at 33.

See Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) s 123YE and s 123YC. The legislation also permits welfare payments to be credited to a third party's account (likely, a merchant) with the recipient then being allowed to use the balance of that account to acquire goods or services: Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) s 123YI; Explanatory Memorandum, Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 (Cth) at 36.

Thus far, stored value cards allowing purchases at Coles, Woolworths and Kmart have been issued for affected Northern Territory communities (although not without problem): Kearney Simon , ‘Outback Welfare Cards Sold For Cash’ The Australian (Sydney) 30 November 2007.

The Hon Jenny Macklin MP (Minister for Families, Housing, Community Services and Indigenous Affairs) has made numerous determinations of ‘declared relevant Northern Territory areas'’. See, for example, Social Security (Administration) (Declared relevant Northern Territory areas – Various (No. 2)) Determination 2008 (Cth).

The school enrolment and attendance measures (expanded upon in latter paragraphs) will not be restricted to operating within a certain location, in other words, these measures will form part of what I have termed the national scheme. They will first however be implemented across the Northern Territory in 2008 before extending to all other parts of Australia in 2009 and 2010: Department of Families, Community Services and Indigenous Affairs (2007) Northern Territory Emergency Response – Fact Sheet 14: What Are the School Enrolment and School Attendance Welfare Measures? <http://www.facs.gov.au/nter/docs/factsheet_14.htm> at 18 December 2007.

Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) s 123UB. A declared area must be a ‘relevant Northern Territory area’ which term is confined to the Emergency Response communities, Aputula and Wave Hill: Social Security (Administration) Act 1999 (Cth) s 123TD. This shows that a declaration can only be made for an Indigenous community.

See the ‘Cape York income management regime’ section for details.

See the ‘National income management regime’ section.

Cape York Institute for Policy & Leadership, ‘From Hand Out to Hand Up: Cape York Welfare Reform Project Design Recommendations'’ (May 2007), 8–9.

Ibid 48.

Department of Families, Housing, Community Services and Indigenous Affairs (then the Department of Families, Community Services and Indigenous affairs) (2007) Welfare Payments Reform: Enhancing Parental Responsibility for School Enrolment and Attendance <http://www.facsia.gov.au/internet/facsinternet.nsf/family/welfare_school_enrolment.htm> at 4 November 2007.

Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) s 123UB.

Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) ss 123XA and s 123XB.

Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) ss 123XC and s 123XD.

Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) ss 123TE(7) and 123TE(9).

Karvelas Patricia and Kearney Simon , ‘Labor Eyes Expanded NT Scheme’, The Australian (Sydney), 1 December 2007. This article suggests expansion of the NT intervention into other parts of Australia. This suggestion has subsequently been rejected by the federal government.

Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 18 (inserting para 144(ka) into the Social Security (Administration) Act 1999 (Cth)) Social Security (Administration) Act 1999 (Cth) s 144 (non-reviewable decisions) prescribes the social security decisions that may not be reviewed by the social security appeals tribunal.

Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, 10 August 2007, 16–17 (Robyn McKay).

Wilson Ashleigh , ‘We'll Consult You, PM Tells Aborigines’ The Australian (Sydney), 17 December 2007.

Commonwealth material explaining the abolition of the CDEP program in the Northern Territory expressly stated its abolition was to enable quarantining to take place, noting that ‘[m]ore than 90 per cent of existing CDEP participants in the Northern Territory live in the prescribed areas': Australian Government, ‘CDEP in the Northern Territory Emergency Response: Questions and Answers'’, <http://www.workplace.gov.au/NR/rdonlyres/31071644-F73A-46BF-82D2-59046CF5057D/0/CDEPNTQuestionsandAnswers.pdf> at 14 December 2007. To mitigate the initial drop in income for Indigenous Territorians moving from CDEP to income support, the legislation provides for payment of an NT transitional payment: See Welfare Payment Reform Act 2007 (Cth), Sch 3, Item 6 inserting Social Security Act 1991 (Cth) part 2.27 (Northern Territory CDEP transition payment). Decisions about the Northern Territory CDEP transition payment are exempt from social security appeals tribunal review: See Social Security (Administration) Act 1999 (Cth) s 144(daa).

ABC Corporation, ‘Big Potential Seen in Continuing CDEP’, ABC News, 13 December 2007.

Proving one's worth is the ‘nub’ of mutual obligation: Carney Terry , Social Security Law and Policy (2006) 87.

For a brief history of rationing in Central Australia, see Rowse Tim , White Flour, White Power: From Rations to Citizenship in Central Australia (1998) 3–9.

See Berns Sandra , ‘Regulating the ‘National Live Stock’ – An Experiment In Human Husbandry’ (2002) 4 University of Notre Dame Australia Law Review 1 at 32.

Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) s 123ZK.

Commonwealth, Parliamentary Debates, above n 1, 2–3. The Welfare Payment Reform Act 2007 (Cth) does not give effect to all the proposals. Rather, the Act provides the mechanism for income management. The decision-making processes of, and criteria for decision by, the Queensland Commission will presumably be supplied by the Queensland legislation establishing it.

Cape York Institute, above n 23, 8–9, 67–68.

Ibid 8–10.

Peake Ross , ‘Rudd Pushes COAG to Meet Promises’ Canberra Times (Canberra), 18 December 2007.

Cape York Institute, above n 23, 48.

Ibid 54–63.

Ibid 67.

For an explanation of mutual obligation see Mead Lawrence , ‘The Rise of Paternalism’ in Mead Lawrence (ed), The New Paternalism (1997). Mead is the leading proponent of this strand of neoliberalism.

Adopting the language of Pearson: Cape York Institute, above n 23 see generally ‘Restoring Social Norms by Attaching Reciprocity to Welfare Payments’ ch 3.

Explanatory Memorandum, Social Security and Other Legislation Amendment (Welfare Payment Reform) Bill 2007 (Cth) at 5.

It is proposed that the Commission ‘be chaired by a retired Magistrate … and consist of respected members of each of the four Welfare Reform communities’: Cape York Institute, above n 23, 10.

Two of the three members on each Panel would be local community members: ibid 52.

Ibid 49.

The Cape York Institute report emphasises that the Family Responsibilities Commission (the Queensland Commission) must be the decision-making body in respect of the sanction to be applied to a person that breaches his or her welfare obligations. If the FRC were merely to make recommendations to Centrelink, as opposed to providing directions to Centrelink, local Indigenous authority would not develop: ibid 50.

Ibid 64 (tenancy trigger).

Ibid 54–55 (education trigger).

Ibid 60–63 (judicial trigger).

Under the child protection and two education triggers, a state or territory child protection officer or the Secretary (Centrelink) applies income management against ‘poor parents’: Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) ss 123UC-123UE.

Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting s 123UD-123UE; see also Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) s 123UH (eligible care child). This is not the case for child protection related income management for which the only substantive criteria appears to be that a child protection officer has given the requisite notice: see Social Security (Administration) Act 1999 (Cth) s 123UC.

See Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) s 123UC.

See Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) s 123UD.

Welfare Payment Reform Act 2007 (Cth), Sch 1, Item 17 inserting Social Security (Administration) Act 1999 (Cth) s 123UE.

For example, unlike the Cape York proposal, the national scheme does not involve landlords in the supervision of welfare recipients

Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait islander Children from their Families (1997). During the Stolen Generation period, state governments employed ‘general’ child welfare laws — premised on a non-Indigenous model of child-rearing — to target ‘neglected’ or ‘uncontrollable’ children.

Such concerns have been expressed by the economist Dan Ribar based on his research into the US food stamp program: see Lane Bernard , ‘Big Welfare Sticks Cost Too Many Carrots’, The Australian (Sydney), 8 August 2007.