Special measures and racial discrimination: a study of the Cape York Welfare Reform

Abstract

In 2008, income management of recipients' social security payments was implemented as part of the Cape York Welfare Reform package (CYWR), a program supported by both the Queensland and federal governments. The income management scheme rests on the Family Responsibilities Commission Act 2008 (Qld) (FRC Act) and Commonwealth social security legislation. The CYWR applies to five communities in northern Queensland predominantly populated by Aboriginal peoples (Aurukun, Hope Vale, Mossman Gorge, Coen and Doomadgee). These communities have long colonial histories which have involved the implementation of paternalistic laws, policies and practices all aimed at controlling Aboriginal peoples, including attempts at forced assimilation. The CYWR commenced as a four year trial and is now permanent. The stated objectives of the reform are to assist people in the CYWR communities in becoming 'socially responsible' for the wellbeing of themselves, their families and other people in their communities, and by providing support for local authority. This thesis argues that these objectives are a continuation of the paternalism inherent in previous laws, policies and practices, and questions their connection to income management, particularly as government evaluations have found that income management has not had any immediate positive impact on people's compliance with what are deemed by the government to be their social responsibilities. Section 8 Racial Discrimination Act 1975 (Cth) exempts from racial discrimination any special measures taken for the sole purpose of securing adequate advancement of certain racial groups requiring protection in order to achieve equal enjoyment or exercise of human rights and fundamental freedoms. Income management has been deemed a special measure by the Commonwealth legislature, and by both Queensland and Commonwealth governments; however, it differs from previous special measures (excluding alcohol restrictions) because it restricts Aboriginal peoples' human rights. The thesis argues that, if challenged, the High Court is likely to decide that income management is a special measure. To date, the High Court has applied a formal and literal statutory interpretative approach to special measures cases, despite the broad words used in the Racial Discrimination Act 1975 (Cth) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) on which the Act is based. Analysis of these cases shows that the court takes a restrictive view of the relevance and importance of international law and international committee recommendations with regard to racial discrimination. Further, on the basis that the decision to implement special measures is political, the court defers to the legislature by limiting itself to assessing whether the decision was reasonable. The thesis finds that the approach of deeming measures which restrict rights, to be special measures, appears to be unique to Australia. The United States of America, Canada and South Africa have legislation and processes that enable the court to assess measures which may restrict the rights of minority peoples. Australia lacks similar legislative or process safeguards, thus enabling restrictive measures affecting Aboriginal peoples' rights to be found lawful.