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STANDING COMMITTEE ON COMMUNITY AFFAIRS
28/04/2009
Family Assistance and Other Legislation Amendment (2008 Budget and Other Measures) Bill 2009

CHAIR —I welcome our next witnesses, from NAAJA, who are giving evidence via teleconference from the Northern Territory. We are running slightly late; I do apologise for keeping you waiting. We are in the unusual situation of having the screens on the floor, so we are actually looking down at you—there is no easy way of doing this. In the room we have Senator Gary Humphries from the ACT, Senator Sarah Hanson-Young from South Australia and Senator Katrina Bilyk from Victoria. I am from Queensland and we are expecting Senator Rachel Siewert back; she has just had to go and do a phone conference.

I know you have received information on parliamentary privilege and the protection of witnesses, and I know we have interviewed at least two of you before, and maybe all three of you, at different times, so you know how the system operates. We have your submission; thank you very much. Would any of you like to make an opening statement? Then we will go to questions.

Ms Collins —Thank you for giving us the opportunity to speak to you today. For those around the table who are not aware, NAAJA is the North Australian Aboriginal Justice Agency. We are an Aboriginal Torres Strait Islander legal service that provides legal advice and assistance in the north zone of the Northern Territory. We have offices in Catherine, Darwin and Nhulunbuy, and the focus of NAAJA’s services is on rural and remote communities. In addition, we have a substantial criminal law practice and we have a civil law practice that includes two welfare rights solicitors seconded through the National Welfare Rights Network to provide individual client assistance and capacity building in relation to income management and Centrelink.

We have two main concerns about the bill. Schedule 2 provides for appeal rights under the income management regime, and, while NAAJA supports this as a principle, this support is qualified by the fact that these appeal rights will have limited real effect in practice. In our submission we have given two examples which we are happy to discuss in more detail. NAAJA’s position is that the recommendations of the NTER Review Board with respect to the removal of compulsory, blanket income management should be implemented as a matter of urgency. We know that the government has announced that legislation to make the income management regime comply with the Racial Discrimination Act is to be introduced. We believe that any such changes should implement the NTER Review Board recommendations by introducing voluntary and trigger based income management. This would give the appeal rights under the bill real meaning and effect.

In schedule 3, the proposed reforms to the CDEP will have significant impact on remote communities. The most detrimental of these will be the transfer of a potential 6,000 people on CDEP into income support payments and under income management. We are also concerned about the effects of transition arrangements for the CDEP participants. We understand that government policy is that people who have a break from CDEP for more than two consecutive weeks, other than for approved leave, will lose their grandfathered status. We welcome the provisions for breaks of more than two weeks as approved leave, but we have a number of concerns that we would be happy to discuss with the committee in more detail. Another concern is that, after 1 July 2009, CDEP participants will come under income management. We recommend that CDEP participants be exempt from income management.

CHAIR —Thank you very much. Senator Humphries.

Senator HUMPHRIES —That last point you made about CDEP participants being exempt from income management stems, I assume, from a view on your part that the income management regime is essentially unhelpful or inappropriate and you would prefer that it not apply to as many people as possible—or have I read too much into your comment there?

Ms Pengilley —That might be putting it a little bit too strongly. What NAAJA hears is that some people see the scheme as helpful, some people are deeply upset and offended by it and find it unhelpful, and a separate group simply find it unhelpful because it is inconvenient. The reason we suggested exemptions from income management for CDEP participants be considered is so that there is some incentive for people to participate other than nothing, other than receiving a Centrelink benefit. It would give people something.

Senator HUMPHRIES —That comes back to the question of the operation of CDEP itself and how well or badly it has fared across the board. The witnesses before you today have conceded that CDEP has been effective and has supported appropriate programs in some communities, but in other places it has not been effective. The government clearly takes the view that the lack of effectiveness in some areas needs to be addressed and hence is moving effectively to phase it out. If we accept, as you have obviously postulated, that CDEP can play a valuable role, how do we structure it so that those examples where it does not work are eliminated or phased out and those where it does work are retained?

Ms Wodak —It is important that—as the committee has already discussed—it be dealt with on a case-by-case basis rather than with a blanket approach. The blanket approach has been one of the main criticisms of income management, both from a human rights perspective but also from an on-the-ground perspective—it applies to everybody irrespective of their position. So it is a question of looking at what CDEP programs in particular cases have been successful and building on those successes. We support the move to real jobs in communities. There have been a number of people who have been on CDEP for a long time and that should not have been on CDEP, who deserve to be on real jobs with superannuation and all of the other entitlements that full-time employment would have given them. But the concern is that there are not enough real jobs in communities to cover all of the people on CDEP and that there are going to be a number of people who are going to be disadvantaged under the scheme. Our concern is also that a number of important community programs might not continue. The number of community programs that existed under CDEP is an indictment on the fact that many government agencies—both Territory and federal—have used CDEP as a means by which they can subsidise, in effect, the provision of services in remote communities. The concern is: what is going to happen to those places once these CDEP changes roll out?

Senator HUMPHRIES —Do you think getting real full-time jobs in some remote communities in your neck of the woods is really a mirage, that many of these communities cannot now and probably never will sustain jobs other than subsidised, supported jobs provided through government? If that is the case, the option of either CDEP or some kind of employment program is really a less desirable object than, for example, providing the means for younger Aboriginal people to transition to other communities—maybe larger regional centres—where real jobs are actually available.

Ms Wodak —The first thing I want to say is that we are primarily a legal service. Our comments about CDEP are made from our perspective of providing legal services in remote communities. We are not involved in training and service delivery with respect to employment. I just want to make that qualification. You just cannot speak globally about all of the different communities that we service in respect of whether or not there is capacity for real jobs that has not been fully realised. Our understanding is that the advent of the shire councils in the Northern Territory has resulted in there being an increase in real jobs that are being provided for in remote communities. Some of our lawyers come back from attending bush courts in remote communities talking about the increased numbers of their clients coming to court that are actually involved in employment, wearing uniforms and benefiting from shire councils being rolled out. There is a variety of different experiences around employment in the Northern Territory.

Ms Pengilley —A one size fits all global solution is not going to be the solution; it needs to be community by community. This is more from a personal than a professional standpoint, but I just want to make the point that real jobs will suit some people, but in remote communities there is a very different way of life. Some people speak a different language and I do not know whether imposing this real jobs model on those communities is necessarily desirable or right.

Senator HUMPHRIES —I take your point. I want to come back to the point that you were making about appeals. I think you welcomed some widening of access to appeals in your opening comments, but I forget whether it was you or the previous witnesses who said that existing appeal rights were very rarely exercised by people in remote communities, which would beg the question: are any changes here to widen access really going to make any difference? What is the reason that so few Indigenous people in remote communities access their appeal rights? Is the solution to that problem through organisations such as your own, which obviously provide advocacy for those people?

Ms Pengilley —You asked a two-part question, Senator; I have forgotten the first part.

Senator HUMPHRIES —What is the reason that so few people are accessing their appeal rights?

Ms Pengilley —There are lots of reasons. The first reason is lack of education, lack of knowledge about the appeal rights, and that is part of the work that NAAJA is trying to do—that is, educating people about the appeal rights that they have. Another reason is simply that Centrelink is a service that is delivered primarily in the English language, and in remote communities many people do not have a grasp of English sufficient to navigate the complexities of the appeals process. A third reason is that it is apparent that Indigenous people, particularly Indigenous people in the Northern Territory, have been subject to wave after wave of different legislative schemes, one after the other, and that many people are resigned. It is a constant barrage of schemes and rules and some people just give up, sadly.

Ms Wodak —It is important to put this into context: in the majority of communities that we deal with, there are a number of people within those communities who live very traditional lives where English is a second, third or fourth language. There are often low levels of literacy and the entire workings of the mainstream legal system are often very foreign to them. In our experience, prior to the welfare rights project starting both at NAAJA and CAALAS, there was a very limited opportunity for people to access welfare rights assistance in the Northern Territory. People were used to Centrelink making decisions and they just lived with whatever those decisions were. It is a long-term, slow process of trying to provide education in advocacy about the ability of people to use appeal mechanisms.

Senator HUMPHRIES —Can you tell me how many people in the past 12 months you have represented on appeals under social security laws?

Ms Pengilley —Quite a small number. We have been doing community legal education and advice, so not a great deal. Senator Humphries, in terms of income management, one reason is because there is not much to appeal. In terms of the broader areas, there is a trend of people simply expecting decisions, not feeling empowered to challenge them. So they might go to their local officer and say, ‘What’s this all about?’ And the person will say, ‘This happened because of X, Y, Z,’ and the person just goes away not feeling that there is something they can do about that.

Ms Wodak —What we have found through the case work is that very profound misunderstandings have occurred between our clients and Centrelink as to what the Centrelink requirements were, what Centrelink communications had meant to them, and those have led to very serious consequences for clients. It has led to prosecutions, it has led to debts. What we are experiencing through our case work is really the tip of the iceberg in terms of the misunderstandings and the communication difficulties that people in remote communities are experiencing with respect to welfare rights decisions. Also, there is a lot of confusion within the communities that we service about the operation of the different schemes that are currently applying to them. In the communities that we service that have—overall there is a perception that with the school enrolment and attendance measures that some people believe they have already started being breached under those measures even though they have not actually started. People did not understand about whether they were being breached under participation failures or under school attendance. The relationship of income management to all of that has been very confused. We anticipate that the two separate schemes involving CDEP participants are going to further add to that confusion. There have been really profound changes in the way that welfare is being received in remote communities in the Northern Territory in a very short space of time, and a lot of people are really struggling to catch up with that.

CHAIR —Ms Wodak, the situation you have described, has that been a recent thing caused by the recent changes? Or, in the experience of your organisation, have the kinds of confusion, trust issues and language communication issues been long-standing issues when it comes to interaction between welfare departments and the community?

Ms Wodak —I would say that a lot of these issues probably existed prior to the raft of changes, but because there is so much more interaction with Centrelink now in people’s daily lives—income management requires a lot of contact with Centrelink—Centrelink, to its credit, has done a lot more remote visits to remote communities and has really understood the importance of face-to-face contact with Centrelink recipients—some of these issues are being highlighted now. They always existed, but the time frame in which there have been significant changes has really been quite extreme.

CHAIR —From what you are saying, the kinds of things you are talking about with the relationship between departments and the community have been discussed for a long time across the country, but particularly in the Northern Territory. What I am saying is: somehow the new system, which has had major changes and it has been complex, has enforced more interaction, which creates more confusion in itself. So you had a pre-existing problem, and on top of that problem there is more time taken to get through what is happening now.

Ms Wodak —I think so. I would say that I think Centrelink has learnt very valuable lessons through its experiences in remote communities. It is much more understanding now of the importance of not relying solely on written correspondence and those types of communication. But we still find significant problems. Even words that people think might be commonly understood in the broader community are not understood in Aboriginal communities. Annabel has had cases where words like ‘income’ and things like that have not been understood and they have had dramatic implications for particular clients.

Ms Pengilley —These might be people who are in the workforce and working effectively in their jobs, but this does not go to their level of English literacy. The inconvenient truth that English is not the language of the Top End has not been grappled with—it has not been faced or properly acknowledged.

CHAIR —You genuinely believe that the system has not accepted the lack of English fluency?

Ms Pengilley —Yes.

CHAIR —Okay. It is good to have it on record. We are getting very short of time. Senator Siewert.

Senator SIEWERT —I hope I am not asking you to repeat an answer; I had to leave the room to do a phone link-up for another committee. Going back to this issue around the exemptions, you comment in paragraph b) on page 4 of your submission that as a result of these changes people will have:

… no effective avenue for relief under the Bill because prima facie the current income management regime provides no basis on which a resident in declared relevant areas could seek exemption on these grounds.

My understanding of both your submission and your comments is that they are effectively the same as what National Welfare Rights Network has said—that the changes made here in fact deliver no real outcomes for Aboriginal people.

Ms Pengilley —That is exactly right. The legislation is drafted to ensure that anyone who is captured is subject to the regime in a relevant Northern Territory declared area, so there is going to be very little to actually appeal about where people are not in declared areas.

Senator SIEWERT —We have been talking quite a bit with other witnesses about the issues around CDEP and the new compliance regime under the employment reform process. Have you had a chance to look at that in much detail?

Ms Pengilley —No, we have not. Ms Bolton is actually coming up to train us this week on compliance issues, so we do not have a lot to say except that, as Helen pointed out before, the system is already incredibly complex and it looks like the new compliance regime will add more complexity. When some people do not even really understand the basis on which they are being paid, to add all these complexities on top is problematic.

Senator SIEWERT —I am hesitant to ask this as you obviously already have a huge workload, but, if after your briefing this week any other issues come up relating to CDEP, would you perhaps just quickly send us a supplementary submission?

Ms Pengilley —Certainly.

Senator SIEWERT —That would be very much appreciated.

Senator HUMPHRIES —One last question: you commented that there ought to be a 13-week tolerance of people being away from CDEP before their grandfathering arrangement is cut off, as opposed to the two-week period that the government suggested. What you say sounds reasonable—unless you take the premise, which the government obviously does, that people should be moved off CDEP over the next couple of years. If you accept that we should be moving people away from CDEP, isn’t that an argument that a longer period is just counterproductive—it simply preserves more people on a lifeboat which is going to be sunk anyway within a couple of years?

Ms Pengilley —I guess so. I suppose it is just seeking to preserve rights or benefits that people have for as long as possible. We raised some quite specific points in paragraph b) in our submission about the transition provisions, and we wondered if the committee has received any information on these questions. We cannot understand from the publicly available information how this transition scheme is going to work.

CHAIR —We will be asking the department, who are the next witnesses. Is it paragraph b) ‘further changes required’? Is that the area?

Senator SIEWERT —You are talking about the transition provisions where you ask that series of questions, aren’t you?

Ms Pengilley —Yes.

Senator SIEWERT —It is where you talk about the source of the power to make this rule and the status of this rule, isn’t it?

Ms Pengilley —Yes.

CHAIR —We will ask the department those questions.

Senator SIEWERT —We are looking at them now.

CHAIR —Yes, they are ready.

Ms Pengilley —There is that sort of FaCSIA fact sheet that is not even dated. That is the only source of the rule that I could find.

CHAIR —We will ask those questions for you.

Ms Pengilley —Thank you.

CHAIR —That is the end of our questioning time. We do appreciate your submission and the ongoing interest you have in these areas. I echo Senator Siewert’s request: if there is anything that you think we have not covered, if there is something you think that we should cover, please get back to us, particularly after you have had your briefing. Thank you very much. The departmental answers to your questions will be in the Hansard.

Ms Pengilley —Thank you.

[2.32 pm]