Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Community Affairs Legislation Committee
21/02/2012

Le ROSSIGNOL, Mrs Mary, Central Australian Aboriginal Legal Aid Service

O'REILLY, Mr Mark, Central Australian Aboriginal Legal Aid Service

ROBERTSON, Ms Katie, Central Australian Aboriginal Legal Aid Service

SATYA, Miss Shanna, Central Australian Aboriginal Legal Aid Service

[08:41]

CHAIR: I welcome representatives from the Central Australian Aboriginal Legal Services to today's hearing. Thank you very much for coming. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. Should you wish to see any more information about that, talk to someone from our secretariat. Do you have anything to add about the capacities in which you appear?

Mr O'Reilly : I am the principal legal officer at CAALAS.

Ms Robertson : I am the welfare rights legal officer.

Miss Satya : I am the advocacy manager at CAALAS

Mrs Le Rossignol : I am on the committee of CAALAS.

CHAIR: I invite you to make an opening statement. Then we will go to questions.

Mrs Le Rossignol : I thank the committee for the opportunity to appear before it as a representative of the Central Australian Aboriginal Legal Aid Service, CAALAS. As you would know, CAALAS provides culturally appropriate and accessible legal services to Aboriginal people in the areas of criminal, civil, family, mental health and welfare rights law. CAALAS services approximately 90,000 square kilometres of the Northern Territory. We contributed to a submission from the Aboriginal Peak Organisations of the Northern Territory, APONT, to this inquiry. The APONT submission raised the many concerns that CAALAS with the proposed stronger future legislative package.

Today we seek to address the committee in particular about our concerns about the exclusion of the cultural practice and customary law from criminal sentencing and bail consideration, provisions relating to income management and the school enrolment and attendance measure.

Mr O'Reilly : One of the specific issues mentioned there was the issue of customary law in sentencing and bail. That is one of the issues that we touched on in our submission. Our position is that sections 3 and 8 of schedule 4 of the bill should be deleted. We strongly oppose the exclusion of cultural practice and customary law from bail and sentencing considerations. That has been referred to in other submissions, including that of the Law Council of Australia. Basically, our position is that this puts Aboriginal people into a different position for sentencing and bail purposes than any other member of the population when they come before the courts. It is a discriminatory practice that needs to be abolished. The argument that this gives better protection to Aboriginal women and children is a fallacious argument and in some instances people will be worse off because of this particular provision. Our strong position is that that section of the bill should be deleted.

Ms Robertson : I am going to talk about income management. CAALAS continues to oppose the current regime of compulsory income management in the Northern Territory but in particular the proposed expansion under the social security bill. We are highly concerned about the continuation of income management and its expansion in the absence of independent evidence that income management is working to protect women and children or to encourage socially responsible behaviour. As detailed in our submission, we have many concerns about the proposed changes to income management, including referrals able to be made based on unwritten law and the exercise of executive power.

The main concern that I will talk about today is the referral by a state or territory authority of a recipient on income management. We strongly oppose the ability for staff of a recognised state or territory authority to be able to make a decision regarding whether a welfare recipient should be subject to income management. We recommend that this provision be removed from the social security legislation amendment bill or, should it provide, we strongly recommend that an additional section be inserted into this legislation whereby the secretary has the final discretion as to whether a referral is implemented or actioned.

We understand that the legislation is drafted to enable referrals from recognised Northern Territory authorities to operate identically to those running the current child protection income management regime. This has been confirmed in our correspondence with FaHCSIA. We have grave concerns about the government seeking to extend income management referral decision-making powers to other Northern Territory government departments based on our experience to with child protection income management. Our greatest anxiety relates to the insufficient understanding among many NT authorities of how income management works, what it involves and whether it will assist a welfare recipient.

We are of the opinion that Centrelink income management staff are best placed to determine a recipient's eligibility for income management, given that it is a highly complex regime. Giving Centrelink final discretion will also afford recipients subject to a decision access to Centrelink review mechanisms, such as the authorised review officer, the Social Security Appeals Tribunal and the Administrative Appeals Tribunal.

I briefly want to mention that FaHCSIA, in response to this recommendation, responded with, 'Requiring the Commonwealth to revisit a decision would be a duplication of effort, an inefficient use of Commonwealth resources.' However, we strongly submit that Centrelink maintaining final discretion is highly appropriate and in fact necessary to ensure access to justice and appropriate review mechanisms, particularly for recipients in the Northern Territory, where there is no administrative appeals tribunal. Essentially, our argument is that it is a federally administered scheme and therefore all recipients should have access to the same appeal mechanisms.

Miss Satya : In relation to school attendance, we advocate for a culturally relevant, strength based, intensive cased management approach, with officers working with school age children and their families to address the reasons behind poor school enrolment and poor attendance. The suspension of schooling requirement payments should only be one component of that kind of approach. We are largely supportive of the introduction of conferences and school attendance plans in the legislation as an opportunity to engage with families around school attendance. But central to this will be appropriate resourcing of the social workers who are operating within that context.

We are pleased by the information from FaHCSIA that an MOU is currently being negotiated between the NT government and the federal government in relation to conferencing and school attendance plans being preferred to the enrolment and attendance notices that existed under the previous scheme. But we recommend that the legislation stipulate the preference rather than relying on MOU arrangements in different jurisdictions. We are also satisfied by FaHCSIA's assurances that decisions made by persons responsible for the operation of the school that could result in suspensions of payment or even cancellations will be subject to social security appeal mechanisms. But we think that the legislation should specifically stipulate that people have access to that route of people. We also submit that school councils in Aboriginal communities should be designated as persons responsible for the operation of the school in conjunction with the employees of the department of education in the Northern Territory. This would allow school councils to contribute to decisions around compliance with school attendance plans and conference notices. It means that cultural considerations will be given their due weight in those decisions.

Mr O'Reilly : CAALAS is a very busy legal practice and has always been that way. We represent thousands of Aboriginal people in Central Australia. We employ Aboriginal staff and are made up of an Aboriginal board of which Mary is one of the members. We are in a good position to see how the intervention is affecting people on the ground and to be able to comment on what should happen moving into the future.

The reality is that over the last few years our criminal, civil and family law practices have increased exponentially. We are busier than we have ever been. A lot of that can be put down to increased policing that has arisen out of the intervention. We are concerned about what our future is in terms of our ability to represent people in Central Australia and what our funding situation is going to be with the Stronger Futures bill.

The government has confirmed there is going to be ongoing funding for increased police services and the continuation of complex social security regimes such as income management. At the moment there has been no commitment to us being able to continue with some of the services we have been providing arising out of that. There is a real issue about protecting access to justice for Aboriginal Central Australians.

Senator SIEWERT: I want to go to the issue you mentioned around income management and having different regimes and staff making the decisions and therefore the different appeal provisions that are highlighted in the APO submission. It makes some valid and important points. Your argument is that there are staff who are untrained in the provisions and, secondly, they are not subject to appeal—in other words, you are going to have across all the different states and territories different appeals processes for anybody that is subject to income management; in fact, no appeals process.

Ms Robertson : There will be an appeals process. The way it currently works under child protection income management is the Department of Children and Families have an internal appeal mechanism. Essentially our argument is: for a welfare recipient in the Northern Territory, who is placed on income management by a Territory government employee, their options for appeal are to appeal internally through that department. That department establishes a phone appeal and review mechanism. Following that, their appeal options are exhausted simply because there is no Administrative Appeals Tribunal in the Northern Territory.

A welfare recipient in Victoria, however, goes through the same process with that internal review mechanism and then has the option of going to the Victorian Civil and Administrative Appeals Tribunal, which is very low-cost and easy to use. It is an access to justice issue for us but, in addition, it is a procedural fairness issue to ensure consistent decision making and consistent appeal rights.

Senator SIEWERT: The point you made about the staff not being trained—and we already know this is potentially happening in New South Wales—is you get housing departments making decisions. Is that the sort of point you are making: you have got staff in different types of agency and, whoever is given the referral powers does not have training in that particular area?

Ms Robertson : We can only speak from our experience of child protection income management. That is where we would really encourage the Commonwealth to consider how that has worked to date in terms of expanding it. In our experience we have had a case that involved a DCF worker referring someone for income management in relation to ensuring that they would be able to pay their rent, which on the surface seems like a reasonable referral; however, there is no need to place someone on income management in order to ensure their Centrelink payments pay their rent. You can easily set that up through Centrepay and, since we raised that with the DCF worker, they realised they had made a mistake and immediately withdrew that referral. We are not here to suggest that government employees will not be able to make competent decisions; we just feel that Centrelink have a dedicated income management team. They are trained in this area. It is highly complex legislation and the ultimate decisions should rest with them as to whether they implement that recommendation and referral.

Senator SIEWERT: I am going to have to jump around because we do not have a lot of time. Have you had any experience of working with clients who have interacted with the SEAM process?

Miss Satya : We have not at CAALAS. The only two trial sites in the Central Australian region that we cover are Wallace Rockhole and Hermannsburg. There have been some questions about why they were selected as trial sites. The SEAM students in both schools had higher attendance rates than non-SEAM students in 2009. When enrolment notices were issued to both schools, there was only one child who was not already involved prior to enrolment notices being issued. They had really good attendance and enrolment rates prior to SEAM, so there have not been any instances where SEAM has affected people in our region because the trial sites that were used were not particularly sites that needed additional enrolment assistance.

Senator SIEWERT: Can I ask about the alcohol management plans. You have mentioned already that your workload has gone up. One of the issues that has been brought up is the now harsher penalties around the 1,350 limit. Have you got concerns about the impact that may have in terms of people then ending up in the justice system for relatively small amounts of alcohol?

Mr O'Reilly : We have concerns about a way of dealing with alcohol issues that plays the law-and-order card and being seen to introduce tougher penalties in response to the consumption of alcohol. Our concerns are that there are a number of initiatives from the Territory government and some of them this legislative framework that have the effect of increasing the likelihood that Aboriginal people will end up in jail and for longer periods of time. That is an issue that we really should be backing away from. We should be trying to implement steps that reduce the rate of incarceration rather than ones that are likely to increase it.

Senator SIEWERT: We have had a lot of support for the new powers in the alcohol management plans. What other amendments would you suggest, therefore, could be made to address these issues you are talking about? We already have alcohol resulting in people ending up in the justice system.

Mr O'Reilly : We are aware that our colleagues in the Top End NAAJA will be addressing the alcohol issues more fully and we are in tune with them. Basically, though, our underlying philosophy is that communities need to be given some responsibility for developing their own responses to alcohol management. That is why we welcome the alcohol management plans. But it really should be something that has very real community consultation and input from the communities.

Miss Satya : We also support infringement notices being issued in relation to quantities more than 1,350 millilitres on the basis that that is a diversionary practice that allows people to be punished for doing the wrong thing by getting the notice without having to go through the court system and get caught up in that cycle, which is where we see far too many of our clients.

Senator CROSSIN: I want to really explore this customary law situation. Can you tell me again which section of the legislation that is.

Mr O'Reilly : We are looking at schedule 4 of the bill. It is sections 90 and 91 of the NTER Act. It is proposed sections 3 and 8 of the bill, which is schedule 4.

Miss Satya : But those proposed sections virtually just move what already exists in the NTER Act into the Crimes Act.

Senator CROSSIN: There have been a fair few discussions, as you would be aware, with the Law Society NT and some of the local practitioners in Darwin that I have been involved in about repealing the sections altogether, essentially. I did not quite understand the consequences of it until I was taken through it last week very simply. So I am wondering if for the rest of us you could just describe to us what the provision of this in the legislation means for someone who is Indigenous as opposed to someone who is not Indigenous.

Mr O'Reilly : Basically the legislation means that for an Aboriginal person coming before the court charged with an offence the court is not able to look at the reasons for committing the offence which may have been influenced by cultural practice or some aspect of Aboriginal culture. There is an example in the submission about a woman who is potentially charged with driving disqualified. Driving disqualified is a serious charge in the Northern Territory; people go to jail for it every day. There may well be an explanation for committing the offence that revolves around the need to get people to cultural practice. She may have been directed by others to play the role of transporting people to a certain place for cultural practices. That is a relevant factor in a court determining how to deal with that woman when she comes before the court. This legislation says you cannot do that; you cannot take into account those cultural aspects of her reasons for offending in determining how morally culpable she is. Under the new legislation she would be sentenced on the basis that this is an act of contempt of court as she is driving against a court order. That is one example.

An example I have had in court on a bail application is I have raised the need for someone on bail to attend a funeral. I have been questioned by a magistrate about whether I can raise that on the basis of this legislation. There are arguments around that, but our position is you have a situation where Aboriginal people in certain circumstances have to jump through more hoops to get bail than anybody else would have to. Aboriginal people have a particular cultural requirement when it comes to attending sorry business and funeral business. They are factors that should be taken into account when determining whether bail is appropriate or not. This legislation makes it much harder.

Senator CROSSIN: Do you think that people sometimes confuse the request to have this section removed with a discussion about replacing our court system with the payback system and customary law?

Mr O'Reilly : I think that may be a part of it. More likely people confuse it with the fact that there is a prospect that Aboriginal people will raise cultural issues as a defence to particular offending. That is not the case. That is not what the legislation means. That certainly was not the case before these sections were introduced. There is no defence of culture for any offending in the Territory. This is simply about sentencing and bail. I think it is more likely this is confused with raising a defence of saying, 'I'm not guilty because Aboriginal and this is what we do.' I think that is where the confusion may lie.

Senator CROSSIN: Do you believe that by not including this section in the legislation, magistrates and courts would be quite clear about what that would mean and how to apply sentencing and bailing across the Territory without discrimination?

Mr O'Reilly : Absolutely, they were doing that prior to this. It is not a situation where you can argue that Aboriginal people were in a better position and less likely to receive tough sentences. That was not the case. We are very good at sending Aboriginal people to jail here. That was the practice beforehand. Courts do not like this legislation; magistrates do not like this legislation and they are quite capable of applying well-established sentencing principles and bail considerations without this legislation.

CHAIR: To follow up on that, in your opening statement you said that this would be discriminatory against Aboriginal people, because their customer practice could not be used. Does someone who is not Indigenous have their custom and practice taken into account in sentencing? I just want to get this the record.

Mr O'Reilly : In appropriate circumstances, yes.

CHAIR: Can you give us an example? You gave us the example of the woman driving disqualified in your submission. Can you give us an example of someone from another culture who would have their circumstances taken into account, so we have that on record?

Mr O'Reilly : I have not really thought about this, but I suppose an example would be if you were in a parallel situation where you had to drive to a major religious event and for whatever reason there was a difficulty in accessing someone to drive, you were running late, it was very important to you culturally. That does not provide a defence or an excuse to the offence. But when you went to court you would explain to the magistrate why you did it, 'I was feeling stressed and I had to get to this christening' or event. The magistrate would say: 'I can understand that, but you have done the wrong thing. I will take that into account, but this is your penalty.' That, I suppose, is an example that is parallel.

CHAIR: Sure, I just want to get something on the record on that.

Miss Satya : Another example that we have seen recently in relation to that is young people around Christmastime who were on bail conditions and had to go out for business. So young men going through ceremony know that it is coming up and they can notify the court of that, but they do not know exactly when they will be taken out and so cannot advise the court of that. But when the time comes family will take them to participate, in the same way family might take a young person on holiday over Christmas. The young person does not have a say; it is a parental decision. If the person was then charged with breaching their bail, you would not be able to raise in mitigation that they were taken out as part of cultural business and they were not able to make that decision, it was not up to them, in the same way as a young person could raise that they were taken away by family for holidays. It would not be valid.

CHAIR: I thought that was important to have on the record.

Senator CROSSIN: My staff tell me in their diligent research about this that in fact the Chief Magistrate in the Northern Territory has made some comments about this in a speech, which I think is on the Supreme Court's website. Are you aware of those comments?

Mr O'Reilly : I have not seen those specific comments. I am aware of some comments in the course of sentencing by at least one particular judge, but I have not seen those comments.

Senator CROSSIN: Would you be able to provide us with those comments from that judge, if you have them?

Mr O'Reilly : There is a reference to those submissions in our APO NT submission.

Senator SCULLION: Ms Robertson, you mentioned the referral. When I am looking at the expansion of this legislation I can only suspect the motive of government, but it would seem reasonable that, if the social security legislation is now to go right across Australia, they would wish to engage the state and territory people. It is just too big a task. I would not be all that confident of a consistent approach by FACS in the Northern Territory where a referral was deemed to be in the interests of the person being referred. I am thinking about recommendations being made by the committee. What we need in effect is for any referral made by any officer from departments other than Centrelink to be deemed to be a decision by the secretary. That would then give them access to the AAT and other procedures which, as you say in your submission, are fairly easy to navigate and easily available. If those referrals were deemed to be referrals by the secretary, would that suffice?

Ms Robertson : We think that is a really simple solution to this, and you have hit the nail on the head with that. It is just a matter of bringing it into some sort of uniform system and making it consistent. The relevant employee of the state or territory department can still make their decision, go through their internal processes and still have that involvement with the recipient theoretically by sitting down and talking them through it, but ultimately it is the secretary's decision. It is a really simple way to ensure that we get procedural fairness and consistent decision making, but it is also an access-to-justice issue in that it ensures that, regardless of where you live in Australia, you have the same access to free, easy-to-navigate and simple appeal processes.

Senator SCULLION: The other benefit is that it offers instant feedback. For instance, in the Migration Review Tribunal one case officer will have seven successful appeals because they are not approving them. So there is a process that provides evaluation and a feedback loop, which is very important. The other interesting area is that you gave evidence about there being no evidence to support the claim that income management is helping anyone in a broad sense—without verballing you. That has been put to me by a number of others. I have watched this government and the previous government roll out surveys that deal with what people feel, because we would like to make government look nice in supporting the legislation. There have been some that deal substantially with a change of habits, like how much food is eaten. We have gone through all of that. There has been not only anecdotal evidence from people but also evidence from very respectable organisations like the NPY women's council who say—perhaps it is anecdotal—that this is a very good thing from their experience. So that is a wide range of evidence, and you say evidence does not exist. I am supposing that you will provide for a higher level or a different sort of evidence. What sort of evidence would satisfy you?

Ms Robertson : We are looking for an independent evaluation. We understand that the government is in the process of conducting that. The interim report for that was originally scheduled to be released in December 2011. We understand that has now been pushed to March this year and the final report is not until 2014. I suppose we are concerned that this is an extremely complex but also an extremely expensive scheme that is being rolled out in the absence of any independent evaluation. That is concerning in terms of policy making and legislation drafting. The second concern is the anecdotal evidence that you talked about, and the minister does refer to anecdotal evidence. We do not feel that that is a basis for the rollout—it is relevant but where is the independent evaluation?

We are not opposed to income management. We are opposed to compulsory income management. If someone genuinely and voluntarily elects to be income managed, we support that decision. We do not support compulsory income management in the way that it currently exists in the Northern Territory—there is a difference there.

Senator SCULLION: We are all looking forward to at least the interim report.. I would certainly like to get an update on that. I heard it was coming out a little sooner than that.

Miss Satya : Senator Scullion, in relation to your previous question of whether decisions made by recognised state and territory authorities are deemed to be decisions by the secretary, the other factor that we think plays closely to that is that the legislation allows referrals for income management to be based on unwritten law and the exercise of executive power. If decisions are being made by Centrelink then there are clear outlines about the eligibility criteria. Another concern is that if there is going to be a situation where state and territory authorities are recognised as being able to refer people, there needs to be equally clear eligibility criteria upon which people are referred. If we are supposing that state and territory decisions are able to be deemed as decisions of the secretary, that needs to be accompanied by the recognition that it should only be based on written law.

Senator SIEWERT: That is really associated then with the appeal. How can you appeal if you are making an appeal against something that is an unwritten law?

Ms Robertson : That is a fact of life. FaHCSIA's response to our concern regarding this appeal matter is they say, 'A person is still eligible where the notification from the state or territory was made or where they are an eligible welfare recipient.' On that point, when Centrelink has no discretion as to whether they implement that referral, it is not a substantive appeal.

Senator BOYCE: The committee was at Hermannsburg yesterday and there was almost universal concern amongst people there that parents could no longer discipline their children for fear of being jailed. Would you tell me about any cases that have been brought to you as a result of police charging people for slapping or disciplining children?

Mr O'Reilly : It is something I can look into. I am not aware of any specific cases recently. I will take it on notice and make some inquiries.

Senator BOYCE: Thank you. Again, I thought your organisation might be able to assist in where this belief has come from and any work that is being done to suggest to people that reasonable discipline is acceptable.

Mr O'Reilly : I will take it on notice. It may be that as it is arising from a specific community it may well be based on very specific recent cases, so I will look into that.

CHAIR: Thank you very much. We really appreciate your submission and the evidence you have given us. It is very valuable.