Billings, Peter

University of Queensland eSpace


bofli' areas have" a
and etliriic'minorit:yIWP
The S:RA! compromises social security: rigt:'lts e~ressly,
providing for benefit suspension or cancellation as a
'last resort'. This appears to conflict with the strong
presumption that 'rettogt'essivemeasures taken in relation
to'the right to social security are 'prohibited under the
©ovenane30 In examining whether 'States Parties have
violated this legal obligation the ESCR Committee will
, look at whether: (a) there was a reasonable justification
for the action; (bJ alternatives were comprehensively
examined; (c) there was genuine participation ofaffected
groups in examining the proposed measures and
alternatives; (d) the measures were directly or indirectly
discriminatory; (e) the measures will have a sustained
impact on the realisation ofthe right to social security,an
unreasonable impact on acquired social security rigIits or
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whether an individual or group is deprived ofaccess to the
minimum level of social security; and (f) whether there
was an independent review ofthe measures at the national
level. This analytical framework is used to examine the
schooling requirements measures below.
The justification advanced for the schooling measures is
the need to address lower than average school attendance
rates across Australia, although tackling poor attendance
rates amongAboriginal children in the Northern 'Territory
appears to be a primary purpose." As the measures purport
to be universal, there needs to be an evidence base that
'sustains the policy beyond non-attendance levels -in
socio-economically deprived Aboriginal communities.
But there is
no evidence to suggest that Australia has significantly higher
than average rates of non-enrolment or attendance, which
raises questions about the justifications for severe sanctions
to address the Issues and for proposals to roll these measures
out nationally if the trials are scccesstur."
The Government hypothesises that financial levers can
work to get children to school is based on the success ofa
scheme linking an allowance for maternity immunisation
and childcare benefits to the completion ofa vaccination
program." It is a stretch to see how this example supports
the notion that conditional welfare in the educational
context will be effective. The lack ofdomesticor overseas
evidence demonstrating that coercive measures improve
educational outcomes has been acknowledged by the
Government, although this is said to -be a reason for
proceeding with the trial rather than a reason not to.34
Simply compelling children to attend school, without
more, does not mean that they will engage with the
educational process or improve theireducational outcomes.
Given the lack of supporting evidence, it is incongruous
that alternative strategies that are known to have motivated
disengaged children to attend school have not also
benefited from substantial Commonwealth funding." It
is also misconceived to impose a sanctions-based policy
without first addressing the malfunctioning Northern
Territory education system: specifically, the quality of
educational infrastructure and teaching services, and
culturally insensitive curricula." The lack ofconsultation
with communities prior to the decision to implement
the schooling enrolment and attendance measures also
compromises its legitimacy and potential effectiveness.
Moreover, the potential loss of acquired social security
entitlements will heap pressure on vulnerable families and
may deprive individuals of access to the minimum level
of social security resulting in destitution. This is not in
the best interests ofthe child and undermines children's
rights to benefit from social security." Through its terms
and operation, the SRA appears to be inconsistentwith the
prohibition on the adoption ofdeliberately retrogressive
measures.i"
CONClUSION
The different modalities of welfare reform currently
being trialled in Australia share an emphasis on individual
behaviour as the source of social problems, while
downplaying complex underlying structural issues. The
emergency response measures in the N orthem Territory
and the Cape York Welfare Reform trial are Unlted by
the rationale that moderating control over social welfare
entitlements will lead to behaviour modification and the
moral regeneration ofdysfunctional communities, families
and individuals, thereby yielding real improvements in
the socio-economic status of children. The SRA takes
this conviction a step further insofar as it provides for
draconian benefit sanctions for welfare recipients who
behave 'irresponsibly'. In principle, the school enrolment
and attendance measure is incompatible with Australia's
international law obligations, it remains to be seen
whether the punitive elements ofthe scheme are applied
in practice.
Peter Billings is a SeniorLecturer in Law at the T C. Beirne
School of Law, University 4 Queensland. This article draws
upona broader analysis 4contemporary welfare riforms ~ (Social
Welfare Experiments in Australia: More Trials for Aboriginal
Families' - .fOrtmoming, (2010) 17Journal ofSocial Security
Law, Thanks to UjiUe NunnJOr herresearch assistance.
Senate Standing Committee on Community Affairs, Social
Security and Veterans' Entitlements LegislationAmendment
(Schooling Requirements) 8ill2008 (Cthl [Provisions]
(November 2008) 1 [Department of Education, Emplovrnent
and Workplace Relations (DEEWRl and Department of
Families, Housing, Community Services and Indigenous Affairs
(FaHCSIA), Submission 4, 4].
2 Social Security (Administration) Act 1999 (Cth) ('SSM 1999
(Cth)') Part 3B, inserted by Social Security and Other Legislation
Amendment (Welfare Payment Reform) Act 2007 (Cth) sen 1,
item 17, established several schemes of income management,
including the indiscriminate NT scheme.
3 See Family Responsibilities Commission Act 2008 (O!d). The
Social Security (Administration) - Oaeenstendcommission
(Family Responsibilities Commission) Specification 2008 {Cth)
provided that the FRCsatisfied the definition of the 'Queensland
Commission' for the purposes of SSAA 1999 (Cth) s 123TC(b).
4 See 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, 3 October 2009. Cf. Chris
Sarra, 'Positive not punitive the best approach', The Australian
(Sydney), 3 October 2009 and Peter Billings, 'Law academic
warns Cape York school attendance report needs close
scrutiny' (Press Release, 1 October 2009) <www.law.uq.edu.au/
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index.html?page= 118572&pid=26466>. These contributions
offer differing eVf:\luations of the Family Responsibilities
Commission, Quarterly Report NO.4 (April- June 2009)
<www.atsip.qld.gov.au/government/families-responsibilities-
commission/> at 30 October 2009.
5 -Thetrials commenced in Cannington and Kununura on 24
November 2008, and were extended across the Kimberley
region and to Perth suburbs during 2009. See J. Macklin
and R. Mcsweenev 'Income Management in Cennlnqton
and Kimberley' {Press Release; 18 November 200B}:<www.
facsia.gov.au/internet/jennymack!in.nsflcontentJincome_
management_18nov08.htm>; R. McSweeney, 'Expansion
of Income Management Trials in Western Australia' (Press
Release, 20 April 2009) <www.mediastatements.wa.gov.au/
Lists/Statements/DispForm.aspx?ID=131710> and, J. Macklin
'Income Management expanded across Perth' (Press Release,
2 October 2009) <www.jennymacklinJahcsia.gov.aufinterneti
jen nymacklin .nst'contentsncome_management_2oct09.htm>
at 30 October 2009.
6 Social Security and Veterans' Entitlements Legislation
Amendment (Schooling Requirements) Act 2008 (Cth) ('SRA').
7 Northern Territory Emergency Response (NTER) Review Board,
Report 01 the NTER Review Board (2008) <www.nterreview.qov
au> at 29 October 2009) 2R
B People receiving income support payments have been selected
for the trials because the 'Australian government has direct
policy leverage to encourage behavioural change' (Senate
Standing Committee on Community Affairs, above n 1, 16).
9 Inserting Part 3C (schooling requirement provisions) into the
SSAA 1999 iCthl.
10 Commonwealth, Parliamentary Debates, Senate, 15September
2008,4707-4708 (J. McLucas).
11 State education department's annual reports reveal little about
prosecution levels. It has been claimed that in WA, SA, ACT
and NT there have been no prosecutions for truancy since
2004 (Commonwealth, Parliamentary Debates, House of
Representatives, 3 September 2008, 7003 (T. Abbott).
12 The six sites are Hermannsburg, Wallace Hockhole, Tiwi Islands,
Katherine, Katherine town camps and Wadeye (Commonwealth,
Parliamentary Debates, House of Representatives, 4 September
2008,7210 (J. Macklin, Minister for Families, Housing,
Community Services and Indigenous Affairs).
13 Senate Standing Committee on Community Affairs, above n 1,
9.
14 J. Macklin and A. Bligh 'Increasing school attendance and
enrolment in Queensland' (Press Release, 18 September 2009)
<www.jennymackli~.fahcsia.gov.au/internetljennymacklin.nsf/
content/jm_m_qldschootattendance_18september2009.doc.
htm> at 29 October ?009; and, see Mark Flack, 'Anti-truancy
plan defended', Albert and Logan News, 23 September 2009.
15 SSM 1999 {Cth] Pt.3C div.1 (schooling requirements) inserted
bySRA s B.
16 SSM 1999 (Cth) Pt.3C div.2 (school enrolment notices) inserted
by SRA s 6.
17 SSAA 1999 (Cth) Pt.3C div.a tscbool attendance notices)
inserted by SRA s 6. 'Reasonable steps' are defined in
Social Security (Administration) (Schooling Requirement)
Determination 2009 (No 1.) sch 1.
18 Natasha Robinson, 'Truancy program at risk' The Australian
(Sydriey), 6 October 2009.
19 SSAA 1999 (Cth) Pt3C divA (information about schooling)
inserted by SRA 2008 (Cth) s 6.
20 Commonwealth, ParHamentary Debates, House of
Representatives, 27 August 2008, 6299 (J. Gillard, Deputy Prime
Minister).
21 Commonwealth, Parliamentary Debates, House of
Representatives, 4 September 2008, 7211 (J. Macklin, Minister
for Families, Housing, Community Services and Indigenous
Affairs).
22 SSM 1999 (Cth) s 124G and s 124L, inserted by SRA s 6;
end Socia! Security (Administration) (Schooling Requirement)
Determination 2009 (No 1.) scf 1.
23 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 t'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).
24 Committee on Economic Social and Cultural Rights', General
Comment No. 19, 39th Session, E/C.12/GC/19 (4 February 2008).
Australia has ratified the ICESCR.
25 Committee on Economic Social and Cultural Rights', above
n 24, paras 1- 4, and para 59 (core obligations). The right to
social security and social insurance may be properly construed
as encompassing social assistance schemes, see; E.H. Riedel,
'The Human Right To Social Security: Some Challenges' in E.H.
Riedel (Ed), Social Security as a Humari Right (2007), 23-25.
26 Committee on Economic Social and Cultural Rights', above n
24, paras 2 (non-discrimination) and 9 (non- arbitrariness).
27 Ibid para 35.
28 Commonwealth, Parliamentary Debates, House of
Representatives, 4 September 2008, 72,10(J. Macklin) and
Standing Committee on Community Affairs, above n 1, 16.
29 For example, in Logan 5.1% of the population is Indigenous,
compared to the 2.3% national demographic. ('2006 Census
QuickStats: 4114 (Postal Area)' via < www.censusdata.abs.gov.
au/> at 2 November 2009). As the Logan Mayor noted, a large
number of refugees are also resettled in the area (Christine
Kellett, 'Layoff Logan, says Mayor', 18 September 2009 <WWW.
brisbanetimes.com.au/queensland/lay-bff-logan-says-mayor-
20090918-ftyO.html> at 2 November 2009.
30 Committee on Economic Social and Cultural Rights', above n
24, para 42.
31 J. Macklin and M. Scrvrnqour; 'NT Trials to Boost School
Attendance' (press Release, 20 June 200B) <http://www.
jennymacklin.fahcsia.gov.au/internetJj.ennymacklin.nsf/content!
bbost_schooLattenda,nce_20june08.htm> at 30 October 2009.
32 ACOSS Submission to the Standing Committee on Community
Affairs, above n 1, 10.
33 Commonwealth, Pailiamentary Debetes, House of
Representatives, 4 September 2008, 7210 (Jenny Macklin,
Minister for Families/Housing, Community Services and
Indigenous Affairs).
34 Standing Committee on Community Affairs, above n 1, 10-11.
35 $17.6 million was allocated to the schooling measures, while
$36.4 million over three years was allocated to undertake
and evaluate the child protection and schooling pilots.
(Commonwealth, Budget Paper No.2: Budget Measures
2008-09 (2008), 174 <www.ato.gov.au/budgetJindex.htm>
at 30 October 2009). For alternatives see L. Behrendt and
R. Mccausland, Welfare Payments and School Attendance:
An Analysis of Experimental Policy in Indigenous Education
(August 2008) <www.aeufederal.org.auJPublications/2008/
LBehrendtpaper.pdf>; and, generally, the Stronger Smarter
Institute <www.strongersmarter.qut.edu.au/aboutus/> at 30
October 2009.
36 The Report of the NTER Review Board referred to 'an education
system failure in Northern Territory remote communities', see
NTER Review Board, above n 7, 30.
37 Convention on the Rights of the Child arts 3 and 26.
38 Committee on Economic Social and Cultural Rights, above n
24, para 64.


School enrolment and attendance measures: more trials for Aboriginal families

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School enrolment and attendance measures: more trials for Aboriginal families

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