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Billings, Peter --- "The Family Responsibilities Commission: Facilitating Socially Responsible Standards of Behaviour in Cape York?" [2010] IndigLawB 1; (2010) 7(16) Indigenous Law Bulletin 3


The Family Responsibilities Commission: Facilitating Socially Responsible Standards of Behaviour in Cape York?

Peter Billings

[The trial] seeks to fundamentally reform the way communities function socially and economically; and the way governments interact with the communities through partnership arrangements, service design and delivery, and capacity-building to address individual and community dysfunctions with a focus on early intervention.[1]

The Family Responsibilities Commission (‘FRC’) is a public agency charged with helping people meet their social responsibilities and constitutes part of the Cape York Welfare Reform trial (‘the trial’). The social engineering trial, affecting around 1800 people, is presented as a partnership between local communities, Federal and Queensland Governments and the Cape York Institute for Policy and Leadership (‘the Institute’).[2] Coming at a price of $88M to the taxpayer,[3] it is one of several contemporary welfare payment reforms being trialled in selected parts of Australia. Together, these signify a dramatic shift in public policy.[4] At the inception of the Northern Territory Emergency Response (‘NTER’), these different welfare schemes were represented as an application of the principle of ‘mutual obligation’. They were aimed at addressing individuals’ irresponsible behaviour and the social decay in Indigenous communities that was affecting children’s welfare.[5] The schemes operate on the basis that state management of welfare payments can prompt behavioural change in adults. The Howard Government was the author of these changes but their application has been extended under Labor.[6]

The Genesis of Cape York Welfare Reform Trials

The origins of welfare reform for Aboriginal communities are traceable to the work of the Institute. The Institute’s Director, Noel Pearson, has been represented as among those commentators who view self-determination as a failed experiment and who advocate radical changes to public policy. This representation is understandable because of his public association with Howard’s Government,[7] his collaboration with neo-conservative economist Helen Hughes[8] and op-ed pieces in The Australian. However, Pearson’s proposal to address social dysfunction in four Cape York communities seeks to engage with cultural issues and to acknowledge historical legacies in a way that many neo-liberals do not. Notably, the importance he appears to attach to community consultation and to Aboriginal ownership of reform distinguishes him from the former Government. This distinction is reflected in the differences between income management (‘IM’) in the Northern Territory and Queensland trials.

Pearson maintains that welfare dependency has structural explanations but has become a behavioural issue. He argues that, to arrest social and economic decline, welfare benefits should be made conditional.[9] In rebuilding social norms in remote communities, his basic philosophy is that people must be helped and hassled to meet their social obligations.[10] Accordingly, in contrast to other welfare management programs, the trial incorporates supportive interventions to assist people before the imposition of IM. Furthermore, the FRC convenes locally and has Aboriginal members, thereby mediating the relationship between Government and the community and softening, if not eliminating, the impression of ‘top-down’ paternalism evident in other trials. According to the first annual report,

the manner in which Local Commissioners deal with community members and their problems and how they conduct themselves in conferences has shown communities that the Commission does not sit in judgment.[11]

The Legislative Framework

The Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth) (‘WPRA’) inserted Part 3B into the Social Security (Administration) Act 1999 (Cth) (‘SSAA’)[12] enabling the indiscriminate use of IM for welfare recipients in prescribed areas (Northern Territory) and its selective employment as a child protection measure (on trial in Western Australia).[13] Additionally, the WPRA provided the basis for the Queensland trial, which was subsequently developed via the Family Responsibilities Commission Act 2008 (Qld) (‘FRCA’).[14]

The main objects of the FRCA are to support the restoration of socially responsible standards of behaviour and local authority in four ‘welfare reform community areas’. The trial is aimed at helping people resume primary responsibility for the well-being of their community, as well as the individuals and families making up that community.[15] The Act is administered under the principle that ‘the well-being and best interests of the child are paramount.’[16] Community members, who are in receipt of defined welfare payments, are subject to the jurisdiction of the FRC.[17] The inclusion of Community Development Employment Project (‘CDEP’) participants in the trial reflects beliefs that CDEP income was a form of passive welfare and that its combination with other payments acted as a financial disincentive to seeking mainstream employment.[18] However, this has ceased to be a distinguishing feature of the trial. More recent reforms have drawn CDEP participants living in other remote communities into welfare quarantining by substituting wages for income support.[19]

The FRC is an independent and impartial agency,[20] constituted by a legally qualified commissioner (a magistrate) and two local commissioners. It emphasises informality, expedition, fairness and flexibility in its operation. The local commissioners bring respect and an understanding of ‘the complexities of each case they preside over because they live in these communities and have years of experience working there.’[21]

A person comes to the FRC’s attention when a public agency ‘notifies’ it of the occurrence of particular matters. A conference may be called:

• Where a parent/carer has failed to ensure that a child is enrolled in or attending school regularly

• where a person is subject to a child safety report via the Department of Communities, Child Safety Services

• following a conviction, for an offence, in the Magistrates Court, and

• where the public housing provider believes a person has breached his or her tenancy agreement.[22]

Evidently, the operation of the scheme entails the devolution of considerable responsibility to school officials, child protection authorities, court clerks and housing providers. The trial’s effectiveness depends partly on the timely interaction between these agencies and the FRC. In keeping with the ethos of early intervention, it is notable that individuals are brought to the FRC’s attention:

• where a child has three absences from school during a term without reasonable excuse

• for low level misdemeanours that have yielded a conviction before a magistrate, and

• following allegations of harm, or risk of harm, to children.[23]

Upon notice from a relevant agency, the FRC can convene a conference, which may be conducted in the local dialect, with a view to reaching an agreement with the attendee about the appropriate course of action.[24] In the absence of a ‘family responsibility agreement’ (which encompasses either a referral to a support service or IM),[25] the Commission may take other actions. These include giving a warning, recommending or directing attendance at an appropriate support service, or ordering IM for a period of between three months and a year.[26] Typically, 60% or 75% of fortnightly payments have been quarantined[27] but only as a measure of last resort, after referrals to support services have been deemed unsuccessful. The FRC also deals with community members’ non-compliance with compulsory ‘case plans’ (community support services) and applications to amend or end agreements or orders it has made.[28] Critically, the FRC registry includes case managers who help prepare case plans and who also assist individuals with accessing community support services.

Appeals against the FRC’s orders are exercisable before the Magistrates’ Court on questions of law, with onward appeal rights before the District Court.[29] The absence of review rights before a tribunal was justified on the basis that it would undermine a key tenet of the trial, namely that the communities, through the FRC, should take responsibility for their issues.[30] Unusually, lodging an appeal does not stay the operation of an FRC decision. This departure from procedural fairness principles was justified on the basis that the FRC’s decisions were likely to be beneficial and do not entail the deprivation of individuals’ income. Additionally, staying decisions might encourage frivolous appeals by people seeking to avoid the application of decisions.[31]

Promoting Community Wellbeing?

The trial has been declared ‘groundbreaking’, a significant departure from policies of the past.[32] In fact, conditioning welfare is an extension of the principle of reciprocity evident in social security laws in Australia and abroad. Moreover, penalising parents for their child’s non-attendance at school resembles old ‘protection’ laws in South Australia.[33] Therefore, this fanfare can partly be attributed to the community endorsement and local administration of the trial.[34] As a prelude to rebuilding troubled communities, such support is critical to the trial’s legitimacy and prospects of success. Certainly, community involvement prior to commencement, as well as the use of local commissioners, has the capacity to distinguish this trial from other welfare experiments. However, the authenticity of community engagement has been questioned.[35] Not only was there no public consultation on the Bill itself, local commissioners have since invested considerable time responding to ongoing opposition to the scheme and to uncertainties about its operation.[36]

Twelve months into the experiment and the Commissioner observed that the FRC was ‘starting to see evidence emerge that it is beginning to meet the [legislative] objectives’.[37] But whether improvements in the well-being of communities is attributable to supportive interventions, the threat or actual imposition of IM, or other measures, such as alcohol management plans, warrants careful scrutiny.

During 2008-09 the FRC received 1890 notifications within jurisdiction, with Magistrates Court notifications constituting the largest number (834), followed by school attendance notifications (658), child safety notifications (387) and housing tenancy notifications (11).[38] The increased levels of school attendance in Aurukun (from 37.9% in term 2, 2008, to 63.2% in term 2, 2009) and Mossman Gorge (60.9% to 81.6% over the same period) have captured the media’s attention but simply attributing this rise to the ‘stick’ of welfare quarantining is gratuitous.[39]

Such reporting fails to account for the multiplicity of factors driving change. Specifically it overlooks that IM orders can be triggered by various factors and that only a small number of people (89) were subject to IM orders in 2008-09.[40] It fails to take account of the role played by Attendance Case Managers in supporting families to get children to school. It fails to recognise teachers’ efforts in engaging students.[41] Notably, the reporting does not reflect at least one local commissioner’s views. The Commissioner for Aurukun has said that children are

now attending school in greater numbers and their parents are at home looking after them because the Tavern is closed.[42]

Additionally,

school attendance in Mossman Gorge has increased and children are getting excited and confident about school with the help of Multilit classes.[43]

The existing evidence does not yet support the conclusion that there is a causal relationship between IM and individual behaviour regarding children’s schooling. It seems that there are other factors at work.

Non-discrimination and the right to social security

The trial was exempted from the operation of Part II Racial Discrimination Act 1975 (Cth) (‘RDA’) and the Anti-Discrimination Act 1991 (Qld). Re-instatement of the RDA (and presumably the local equivalent) would not necessitate revisions to the trial in form or substance (in contrast to the NTER measure)[44] for several reasons. In brief, differential treatment does not equate to a breach of non-discrimination rights. While the scheme treats welfare recipients differently from others in Australia, and disproportionately impacts on Indigenous peoples, it is arguable that the scheme is not discriminatory because it has a reasonable or objective basis.[45] In principle, welfare management serves important objectives, including the promotion of socio-economic rights to health, education, property and social security.[46]

Arguably, these legitimate objectives are pursued by nuanced means through the FRC and, therefore, are a reasonable restriction on rights.[47] Moreover, if one takes the Institute at its word, the trial may actually warrant the description ‘special measures’.[48] The apparent process of community engagement and general community support for the initiative, combined with the case-by-case administration of the regime, is relevant in this regard. But even though the scheme may be accommodated within a non-discrimination framework, should evidence emerge that accessibility and availability of welfare benefits have been impaired by poor administration, the trial may prove inconsistent with the fundamental right to social security.[49] This is currently the case in the Northern Territory.[50]

Conclusions

In contrast to the Northern Territory trial, the Cape York scheme is nuanced, ostensibly endorsed by, and rooted in, the community. It aims to resolve problems collaboratively rather than via the imposition of solutions upon people (although this is an option). The integration of case-management in the scheme reflects overseas experience where programs combining case management, support services and sanctions have enjoyed a limited but positive impact on school attendance.[51] The publication of the FRC’s fourth quarterly report gave rise to media reports that presented a simplistic explanation of the trial’s outcomes, thereby feeding public misapprehensions.

The existing evidence does not establish a causal relationship between IM and people’s behaviour regarding children’s schooling. Indeed, whether supportive interventions, IM or alcohol management plans impact on Magistrates Court notices and Child Safety notices remains to be seen. More fundamentally, even if offending and allegations of child neglect diminish and this is correctly attributed to the trial, it is questionable whether the state can finance the extension of such a scheme to other remote communities, as some have advocated.[52] Ultimately, any extension of such a scheme must be dependent on the free, prior and informed consent of communities[53] and cogent evidence that income management causes positive behavioural change. Moreover, it requires the political will (at state and federal levels) to invest substantial finance and the careful and prompt administration of referral support services before IM is deployed.[54]

Peter Billings is a Senior Lecturer in Law at the T.C. Beirne School of Law, The University of Queensland.


[1] Explanatory Memorandum, Family Responsibilities Bill 2008 (Qld), 3.

[2] Family Responsibilities Commission <www.frcq.org.au/> at 10 November 2009. For an alternative view of partnerships see Chris Sarra, ‘Positive Not punitive the Best Approach’, The Australian (Sydney), 3 October 2009.

[3] Family Responsibilities Commission, Annual Report 2008-09 (‘Annual Report 2008-09’) 50.

[4] See, Department of Families, Housing, Community Services and Indigenous Affairs, ‘Welfare Payment Reforms’ <www.fahcsia.gov.au/sa/families/progserv/welfarereform/Pages/default.aspx> at 10 November 2009.

[5] Commonwealth, Parliamentary Debates, House of Representatives, 7 August 2007, 7 (Malcolm Brough MP Minister for Families, Community Services and Indigenous Affairs and Minister Assisting the Prime Minister for Indigenous Affairs). The application of ‘mutual obligation’ principles was a feature of the Howard Government’s neo-liberal reforms that transformed the welfare state, addressing ‘passive’ welfare, particularly among single parents and people with certain disabilities.

[6] This is evidenced via the roll-out of income management in the NT, the application of welfare conditioning as a child protection initiative in WA and the Schooling Enrolment and Attendance Measures - Social Security and Veterans’ Entitlements Legislation Amendment (Schooling Requirements) Act 2008 (Cth).

[7] Miranda Devine, ‘Pearson Sparked a Revolution that Emboldened PM to Act’, Sydney Morning Herald (Sydney) 24 June 2007. Cape York Institute, From Hand Out to Hand Up – Cape York Welfare Reform Project (2007) (‘From Hand Out to Hand Up’) was published shortly before the Intervention.

[8] Hughes’ work (including, Lands of Shame (2007)) informed the Coalition’s approach to communal land tenure evidenced in the NT Intervention and she contributed to Pearson’s model for the economic viability of remote communities contained in From Hand Out to Hand Up, above n 7.

[9] Noel Pearson, ‘Reciprocity Resurrected’, The Australian (Sydney) 12 May 2007.

[10] A view espoused by influential US scholar Lawrence Mead, see ‘Breaking Down Dependency’ (Speech delivered at the Strong Foundations: Rebuilding Social Norms in Indigenous Communities Conference, Cairns, 25-26 June 2007) <www.cyi.org.au/conference/lawrencemead.aspx> at 10 November 2009.

[11] Annual Report 2008-09, 46.

[12] SSAA s 123TA inserted by WPRA sch 1, item 17.

[13] See Jenny Macklin ‘Income Management Expanded across Perth’ (Press Release, 2 October 2009) <www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/income_management_2oct09.htm> at 30 October 2009. Schooling-related income management measures were never implemented.

[14] Enacted on 13 March 2008, the FRC commenced operation on 1 July 2008. The Social Security (Administration) – Queensland Commission (Family Responsibilities Commission) Specification 2008 (Cth) provided that the FRC satisfied the definition of the ‘Queensland Commission’ for the purposes of SSAA s 123TC(b).

[15] FRCA 2008 (Qld) s 4(1). The welfare reform community areas are Aurukun, Hope Vale, Mossman Gorge and Coen.

[16] FRCA 2008 (Qld) s 5.

[17] FRCA 2008 (Qld) pt.1 div 3 and s 48.

[18] From Hand Out to Hand Up, above, n 7,10–11.

[19] Jenny Macklin and Brendan O’Connor, ‘Strengthening Indigenous employment opportunities’ (Press release, 19 December 2008) <www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/indig_employ_19dec08.htm>.

[20] FRCA s 26 and s 31. Natural justice must be observed (s 56 conferences) s 85 (‘show cause process’ - for cases of non-compliance with case plans) and s 98 (‘application hearing’ - to amend/end FRC agreement/order).

[21] Commissioner David Glasgow cited in Padraic Murphy, ‘Welfare Reform Starts on Cape York Peninsula’, The Australian (Sydney) 12 August 2008.

[22] FRCA pt.4. Additionally, community members may voluntarily seek a referral to community services or income management (pt.10).

[23] FRCA ss 40-43.

[24] FRCA s 46.

[25] FRCA s 68. For a critique of the FRC’s methods see Nicole Watson, ‘The Family Responsibilities Commission Act 2008 (Qld) – Cause for Concern’ [2008] IndigLawB 38; (2008) 7(8) Indigenous Law Bulletin 18.

[26] FRCA s 69.

[27] Annual Report 2008-09, 41.

[28] FRCA s 10 (pt.7 provides for ‘case plans’ and pt.9 for amending or ending agreements/orders).

[29] FRCA pt.11.

[30] Explanatory Memorandum, Family Responsibilities Commission Bill 2008 (Qld), 10-11

[31] Ibid, 11.

[32] Queensland, Parliamentary Debates, Legislative Assembly, 26 February 2008, 332 (Anna Bligh, Queensland Premier).

[33] The Aborigines Act 1934-1939 (SA) s 40a(2).

[34] The community engagement process is set out in Cape York Institute, From Hand Out to Hand Up - Volume 2, Chapter 2. Public opposition to the welfare reforms surfaced in Aurukun at the time of the FRC’s first sitting (Peter Michael, ‘Backlash Threatens Family Responsibilities Commission’, Courier Mail (Brisbane) 15 August 2008. These issues may reflect constraints the CYI faced with community engagement in Aurukun (From Hand Out to Hand Up – Volume 2, 43).

[35] See John Altman and Melissa Johns, ‘Indigenous Welfare Reform in the Northern Territory and Cape York: A Comparative Analysis’ (Centre for Aboriginal Economic Policy Research, Working Paper No 44/2008) 11-12.

[36] Annual Report 2008-09, 46.

[37] Family Responsibilities Commission, Quarterly Report No. 4, (April - June 2009) available at <www.atsip.qld.gov.au/government/families-responsibilities-commission/> 2.

[38] Annual Report 2008-08, 35.

[39] Natasha Robinson and Sarah Elks, ‘Welfare Tough Love Works as Quarantining Parent Payments Cuts Indigenous Truancy’, The Australian (Sydney), 30 September 2009; and, Terry Sweetman, ‘Welfare Brake Applied through School Attendance Figures’, Sunday Mail (Brisbane) 3 October 2009.

[40] Annual Report 2008-09, 41. This figure rose to 130 by 30 September 2009 (Family Responsibilities Commission, Quarterly Report No. 5 (July – September 2009) available at <www.atsip.qld.gov.au/government/families-responsibilities-commission/> 13.

[41] Sarah Elks and Natasha Robinson, ‘Disagreement on Best Way to Cut Truancy’, The Australian (Sydney), 1 October 2009, citing Dr Chris Sarra.

[42] Annual Report 2008-09, 13.

[43] Annual Report 2008-09, 18.

[44] Commonwealth, Department of Families, Housing, Community Services and Indigenous Affairs, Future Directions for the Northern Territory Emergency Response - Discussion Paper (2009) 7-8, 10-12.

[45] Committee on Economic Social and Cultural Rights’, General Comment No.20, 42nd Session, E/C.12/GC/20 (10 June February 2009) para 13; and, I. Brownlie, Principles of Public International Law (2003) 547.

[46] Income management may help realise living conditions that promote the enjoyment of some rights in the International Covenant on Economic Social and Cultural Rights, for example, arts 9, 10, 11 and 12.

[47] See Jonathon Hunyor, “Is It Time to Re-think Special Measures Under the Racial Discrimination Act? The Case of the Northern Territory Intervention” [2009] AUJlHRights 2; (2009) 14(2) A.J.H.R 39, 64-65, where the author outlines the approach endorsed by the Australian Human Rights Commission in respect of limitations on rights.

[48] Queensland, Parliamentary Debates, above n 32, 333. The requirements for special measures are contained in art 1(4) Convention on the Elimination for Racial Discrimination, and see Gehardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 135 (Brennan J).

[49] Universal Declaration of Human Rights art 22 (everyone, as a member of society, has the right to social security) supplemented by art 25 (the right to an adequate standard of living); International Covenant on Economic Social and Cultural Rights art 9 (the right of everyone to social security) links with art 11 (right to an adequate standard of living); Convention on the Elimination of Racial Discrimination art 5(e)(iv) (non-discrimination in the enjoyment of social security); and Convention on the Rights of the Child art 26 (child’s right to benefit from social security).

[50] Respectively, Committee on Economic Social and Cultural Rights’, General Comment No.19, 39th Session, E/C.12/GC/19 (4 February 2008), para.11 (availability) and paras 23-27 (accessibility); and, Commonwealth Ombudsman, Annual Report 2007-08 (2008) 100-101.

[51] David Campbell and Joan Wright, ‘Rethinking Welfare School-Attendance Policies’ (2005) 79(1) Social Service Review 2.

[52] Nicholas Rothwell, ‘Giving it back: a revolution in the bush’, The Australian, 31 October 2009.

[53] UN Declaration on the Rights of Indigenous Peoples art 19.

[54] A South Australian Aboriginal community has called for welfare quarantining based on the FRC model, SBS, 4 February 2010 <www.sbs.com.au/podcasts/naca/world-view/episode/67367/World-View-4-February>.


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