11 March 2010
The 2010 Dame Roma Mitchell Memorial Lunch
Thursday 11 March 2009
Thank you to the Victorian Women Lawyers and the Law Institute of Victoria for the invitation to present at the 2010 Dame Roma Mitchell Memorial Lunch.
I am honoured to be speaking at this important event on the Victorian legal calendar, to celebrate International Women’s Day and the life of Dame Roma, Australia’s first female QC and Supreme Court judge and the founding chairperson of the Australian Human Rights Commission.
Dame Roma was a passionate feminist and a strong advocate for equal pay for women. She also had a strong sense of social justice and fairness.
Today I want to talk about some contemporary issues affecting low income Australians and the community and welfare sector that I think resonate with Dame Roma’s concerns with social justice, fairness and equality for women.
A strong safety net and fair social security system
Dame Roma’s experience of the Great Depression enlivened her to the need for a strong social safety net and a fair social security system which respects people’s dignity.
In an interview with Robin Hughes in 1993, speaking during the recession, she commented on the need for a system which supports people who are out of work – in some cases permanently.
She also reflected on her memories of the Great Depression and the mark this left on her social consciousness.
A university student at the time, Roma describes walking down North Terrace and seeing a line of men down Kintore Avenue to get their ration tickets which they had to use to buy food. As Roma said, they didn’t receive any cash and they were forbidden from purchasing cigarettes with these tickets.
At this time, unemployed Australians did not receive social security payments in cash, but had to rely on rations (‘the susso’) which could only be spent at designated stores. These rations were distributed at police stations, often in return for work.
By 1932, more than 60,000 people depended on ‘the susso’ to survive. To be entitled to receive the payment, you had to have been unemployed for a sustained period of time, and have no assets or savings. The susso was given in the form of staple foods – like bread and potatoes.
At that time, Australia had a charity model of welfare provision. This is illustrated by Dame Roma’s description of the provision of financial assistance by a philanthropist, Lord Bonython, the founder of the Adelaide Advertiser. She said:
The unemployed would line up and get two shillings each from his secretary and I’d see them lined right down Weymouth Street. Well, it was beneficent but it was horrifying to think that’s the sort of thing people used to do.
The charity model of assistance to the poor, along with the susso, caused much hardship and shame.
This led to the realisation that such an approach was unsupportable. Instead, a national consensus emerged that unemployed people were entitled as citizens to adequate Social Security payments, generally paid in cash, as long as they were taking reasonable steps to find work. Strict work requirements have been imposed ever since.
Indeed, unemployment benefits have never been the ‘passive welfare’ that some claim. In fact, Australia has among the toughest set of activity requirements for unemployed people in the OECD with individuals generally required to apply for 10 jobs a fortnight and attend Centrelink in person every fortnight to prove this.
Income management: a modern rations system
Our modern social security system, based on a system of regular payments in cash to income support recipients, is now under threat from major reforms which are proposed to the social security system by the current Government.
The previous Government introduced compulsory income management to prescribed Aboriginal communities in 2007 as part of the Northern Territory Emergency Response or Intervention.
As a result, Aboriginal people were forced to shop at designated stores with a special card, the Basics Card, which made them identifiable as income support recipients subject to a separate, race-based system. This was enabled by the suspension of the Racial Discrimination Act.
Since that time, Aboriginal people have spoken of their frustration at not being able to shop at their preferred retailers, have spoken of the burden of frequent contact with Centrelink and the shame of being stigmatised by the Basics Card. In some town centres in the Territory, separate queues have been established for income managed shoppers due to the delays caused by declined transactions. Because it is difficult to check the balance on the card, one in five transactions have been declined with embarrassed shoppers forced to return goods to the shelves.
In one case that ACOSS is aware of, an Aboriginal woman was turned away when she tried to buy a bottle of water at a roadhouse with her Basics Card. She did not know that the roadhouse was only licensed under the scheme to sell fuel. Because of this, she was forced to endure the humiliation of being refused service.
The current Government committed to reinstate the Racial Discrimination Act in the Spring session of Parliament last year. Legislation was introduced on 25 November to effect that commitment.
However, the legislation would achieve a partial, not complete, reinstatement of the Act. In its current form, it is something of a poisoned chalice.
It offers some improvements in NTER measures but at great cost – by enabling, in effect, a modern rations system for income support recipients across the country.
The legislation would establish a compulsory income management scheme to be potentially applied to all long-term recipients of specified payments in declared disadvantaged communities. It is, on its face, therefore racially non-discriminatory.
In this way, it is designed to implement the Government’s commitment to reinstate the Racial Discrimination Act to the Northern Territory Emergency Response. However, the measure is likely to disproportionately affect Indigenous Australians who are more likely to live in disadvantaged areas and to receive payments for longer periods.
Under the Government’s proposed scheme, people on payments for over 12 months (or, in the case of young people, 3 months) would have at least half of their payments ‘managed’ by government.
These funds would be siloed off to a special account. A proportion would go on a Basics Card, to be used to buy groceries.
The scheme is designed to ensure that recipients spend their money on essential items, by controlling what people can buy, but it would also impose tight restrictions on where people can shop and how they budget.
People would only be able to shop using their managed funds at selected retailers – generally large supermarket and retail chains. They would be unable to purchase milk at their corner store or buy fresh fruit and vegetables from their local greengrocer unless the store is participating in the scheme. They would be unable to choose to shop at stores that may be cheaper or better located than those that are licensed under the scheme.
To make matters worse, people would be identified as a long-term income support recipient by their method of payment. This has been a great cause of shame and humiliation in the Northern Territory.
The policy would be applied as blanket measure, covering whole groups of people on income support. It is not targeted to people who are demonstrably failing to meet the needs of their children or are misusing their payments.
In a reversal of the usual burden of proof, it would require recipients to provide proof of responsible parenting or a regular pattern of employment in order to escape the scheme.
The scheme would extend beyond remote Australia to people across the Territory, followed by suburbs across Australia.
Long-term unemployed people, single parents and young people would be swept up into the scheme. The scheme would apply to those who lost their jobs in the downturn, including retrenched older people facing age discrimination.
Women are likely to bear much of the impact of the policy. This is not only because many women on Parenting Payment (Single) and Newstart allowance will be included in the scheme, but also because, as primary carers, women are more likely to be subject to the responsible parenting requirements under the legislation than their former partners.
In addition to the indignity which income support recipients will experience, the extension of income management across the country under the Government’s model is likely to have some perverse effects on local economies.
Dame Roma herself observed some of the anti-competitive impacts of the ‘susso’, which could only be used at certain stores to by specified goods. She describes a friend’s father’s milk run which foundered during this Depression because of the ration ticket system. Under the system, powdered milk could be bought with the tickets. Fresh milk was not permitted.
In the Northern Territory, we know that Aboriginal people have been forced to shop at large retailers and, in some cases, to travel great distances to access licensed stores. We know that, as a result of their choices being constrained, they do not have access to the same range of products which other citizens do. We know that small businesses have lost business from the scheme while larger chains have done well out of it.
For this reason, the proposed national roll out has been met with concern from some small businesses.
The primary goal of the income support system is to ensure all Australians have access to adequate income when they don’t have a job. Any conditions which are attached to payments should be linked to efforts to secure financial independence, for example, through employment.
The use of the social security system to achieve wider behavioural change not tied to this objective is inappropriate and inefficient, unless individuals or communities have sought this approach. This is because the social security system and Centrelink are poorly adapted to providing the kind of intensive case management that is required, which is rightly provided by specialist, local community organisations.
Income management can be a useful tool for those services and communities, but it must be a tool in their hands, not an instrument applied by government.
Dame Roma was the first chair of the Australian Human Rights Commission. As a lawyer, she saw rights as a first line of defence against abuses of power.
In her 1989 inaugural Mitchell Oration, Dame Roma wondered why the Commonwealth had not succeeded in producing a bill of rights acceptable to all or even the majority of citizens.
She expressed the view that some of the opposition stemmed from a fear of the unknown. I would suggest that this remains true today. She responded to concerns that a bill of rights would give rise to a flood of litigation by suggesting that the volume of litigation would be unlikely to significantly increase.
ACOSS is a strong supporter of a national human rights act, and has lobbied for an act which includes economic, social and cultural rights in addition to civil and political rights. These ‘second generation rights’ are key to our concerns about equity for low income Australians including the right to an adequate standard of living, access to housing, to health care and education.
Poverty, deprivation, housing stress and homelessness are not just equity or social justice issues. They are also human rights issues.
The right to an adequate standard of living, to social security, to safe and secure housing, to health care, education and work are all protected under international human rights law. Indeed, Australia has accepted its obligations to protect these rights by signing both the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic Social and Cultural Rights (ICESCR).
A national human rights act would produce better outcomes for low income and disadvantaged Australians through better and more accountable decision-making.
Litigation under a national human rights act would be a last resort. Rather, the key benefits of the act would be improved government decision-making and policy development and service delivery that is better adapted to meeting the needs of individuals. Indeed the most significant impact that a national HR act could have would be in the prevention of human rights infringements.
A national human rights act would require Government to turn its mind to the impacts of any new legislation or policy on human rights. Drastic cuts to social services in times of economic boom would raise serious human rights questions which government would need to answer.
A national human rights act would enable courts to interpret legislation in a way that was human rights compliant and to identify laws which, in its view, were inconsistent with rights. In this way, weak tenancy protections which enabled unreasonable rent increases or eviction without adequate notice could be challenged and parliament would have to justify any decision not to reform the law.
As a last resort, a national human rights act would enable individuals to bring a direct action in the courts where rights have been infringed by a public authority. For example, a disadvantaged job seeker may be able to challenge the imposition of unreasonable requirements as a condition of receiving income support as a breach of his or her right to social security or choice of work.
Without a national human rights act we are left to rely on our system of parliamentary review to consider any likely adverse affects of new legislation, but with no requirement that Parliament directly consider rights issues. Public debate is all the poorer. Courts have no clear statement of human rights principles in domestic law by which they can be guided in decision making. And individuals in many cases are left without recourse when their rights are infringed by Government or others acting on its behalf.
However, the protection which human rights legislation would afford, though important, is likely to be limited. It would not be a panacea for social injustice and inequality. Indeed, human rights compliant policy may not, in itself, always make for good social policy that is effective, fair and respects people’s dignity in their everyday interactions with Government and services.
This goes to the difference between conceptions of social justice and human rights. In my view, social justice includes but is broader than human rights. It embraces concepts of social and economic equality and a commitment to redistributive justice. In this way, it includes a number of mechanisms which are critical to redistributive justice but largely outside the scope of human rights law. The tax and transfer system is perhaps the most significant mechanism through which redistributive social justice can be pursued. Although human rights principles include a right to social security, progressive taxation is largely outside the scope of human rights.
ACOSS has called on the Australian Government to develop a comprehensive social inclusion framework with an explicit anti-poverty strategy. A national human rights act would provide another layer of protection for Australians who might otherwise fall through the cracks. It would also provide a legal and policy framework for the values underlying the ‘fair go for all’.
Adequate financial support for sole parents
In her 1993 extended interview, Dame Roma reflected on the major advances in social security protections for women in her lifetime – the introduction of pensions for so-called ‘deserted wives’ and of the child endowment.
Since 1974, when the Whitlam Government introduced it, low income sole parents have been paid a pension. The payment has played a vital role in helping many women to escape from difficult or violent relationships and in reducing poverty among children.
Now called Parenting Payment Single (PPS), this is still paid as a pension. There are about 360,000 sole parent families with around 600,000 children between them on this payment.
Until last year, Parenting Payment Single was paid at the same rate as the other pensions, including the aged pension and disability support pension. In the 2009 Budget, the Government announced a $30 pension increase for other pensions but excluded sole parents from the increase. As a result, for the first time in over 30 years, sole parents aren’t paid the same rate as other pensioners. An opportunity to reduce poverty among 360,000 sole parents and 600,000 children was also lost.
Most sole parent families live on low incomes – over 70% are in the bottom 40% of Australian households ranked by income. It is well known that sole parent families on social security payments face a high risk of poverty.
Sole parents and their children often have to go without the essentials of life. For example, the Social Policy Research Centre found in a recent survey that:
• 43% of Parenting Payment recipients lacked a decent and secure home;
• 57% could not pay a utility bill in the last 12 months;
• 56% lacked $500 in emergency savings;
• 54% could not afford necessary dental treatment;
• 24% could not afford up to date school books and clothes; and
• 40% could not afford a hobby or leisure activity for their children.
Sole parents receive about $550 per week in Parenting Payment, Family Tax Benefit and Rent Assistance, This is usually not enough to meet basic living costs for a family of three. Around two thirds of sole parent families rent their homes and it is now common for rents for 3 bedroom properties in capital cities to exceed half this income ($275 pw).
ACOSS expressed strong criticism of the decision to exclude sole parents from the pension increase at the time. We continue to advocate for adequate payments for this group at high risk of poverty.
Equal pay for women
Dame Roma was also a passionate advocate for equal pay and equal opportunity for women.
Women comprise approximately 87% of workers in the community sector in Australia. It is no coincidence that pay and conditions in the sector are significantly lower than in the public sector for similar work.
ACOSS has long argued for better pay and conditions for workers in the sector who provide essential services to their communities: as disability support workers, as case managers in homeless services, as carers in aged care facilities and counsellors in youth services.
In a very significant development, the Australian Services Union (ASU) and the Australian Government have reached an historic agreement which under which the social and community services sector will be a test case for pay equity in the new Federal Industrial Relations system.
The follows on from a significant win for the sector, and for women, in Queensland in which the Queensland Industrial Relations Commission recognised that the work performed by workers in the sector had been undervalued and rates of pay must be corrected. The QIRC recognised that this undervaluation was gender based. This is because care work is seen to be an extension of women’s role in the home and is therefore not appropriately valued.
The Queensland Industrial Relations Commission ordered pay increases range from 18% to 38%. Significantly, the Queensland Government has allocated $414 million to fund these increases.
ACOSS is working with the Australian Service Union to support the national pay equity case.
In her 1989 oration Dame Roma said:
It would be gratifying to believe that an oration upon topics relating to equal opportunity and human rights would, before long, become otiose … but I am not optimistic that this will happen in the foreseeable future.
Sadly, she was right in this prediction.
But, there is also cause for optimism. The groundswell of support for a national human rights act gives us hope. So do moves to close the pay gap between community sector workers and their public sector counterparts.
Much has been achieved and we have come far from the days when the unemployed queued for rations and so-called ‘deserted wives’ were not entitled to financial support.
But we must not be complacent about the gains we have secured. The recent changes to the sole parent pension and proposals to income manage broad groups of social security recipients tell us that we must remain vigilant. I can assure you that ACOSS will remain so!
– Clare Martin, CEO, ACOSS
Invitation from the Victorian Women Lawyers and the Law Institute of Victoria
– check against delivery –
Media Contact: Clare Cameron: 0419 626 155