My thoughts are whirled like a potter’s wheel:
I know not where I am , nor what I do.
1 Henry VI, Act one, Scene five.
In my previous post on the ANAO report on remote employment (link
here), I wrote about mutual obligations in the following terms:
On 1 June, The Australian reported
(link
here) that the Government was planning to reintroduce ‘mutual obligation’
into the scheme by requiring participants to ‘work for the dole’. These
requirements fell by the wayside during Covid lockdowns and are not being
strictly enforced.
On
re-reading the ANAO report, I realized that I had made an error in attributing
the shift in policy on mutual obligations to Covid. In particular, paragraphs
2.27 to 2.32 of the ANAO report make clear that the shift in policy can be
attributed to a deliberate shift in policy related to the risk that the program
might be held by the courts to be either directly or indirectly racially
discriminatory. I recommend interested
readers take a close look at those paragraphs for a fuller account than I can
spell out here. The following paragraphs have been edited to remove footnotes
and to emphasise key points with bold font:
2.28 The legal risks associated with the
CDP were first advised to government in 2015. The advice stated that the risk
of the program being inconsistent with the Racial Discrimination Act 1975
(Racial Discrimination Act) was medium. From 2015, legal risk was identified by
multiple external stakeholders. In December 2016, a complaint about the CDP was
brought to the Australian Human Rights Commission (AHRC) by the Shire of
Ngaanyajarraku, alleging a breach of the Racial Discrimination Act. A mediation
process was initiated but failed, and in July 2019 Dawson and Ors v
Commonwealth of Australia (Dawson v Cth) commenced. In December 2021, Dawson v
Cth was settled by the Commonwealth for a grant of $2 million (plus GST) to
the Shire and Council; the design, implementation and evaluation of the Remote
Engagement Program Trial in the Shire of Ngaanyajarraku (see Table 3.1); and
legal costs of $278,897.
2.29 A commitment to reform the CDP
was a component of the NIAA’s negotiations and eventual settlement of Dawson v
Cth. The complainants required that the CDP’s (or future programs’)
mutual obligation requirements be ‘on par’ with requirements in non-remote
areas. In January 2021, the government was presented with a single
recommended option to meet settlement requirements and reduce the risk of
future legal action: to make most CDP mutual obligation requirements
voluntary (referred to as a compliance pause). In May 2021, the government
announced that the CDP would be replaced by a new remote jobs program and that,
with immediate effect, participation in the work-for-the-dole component of
the mutual obligation requirements would be voluntary. After the removal of
the requirement to attend activities in May 2021, CDP participation declined
by approximately 50 per cent on average. In July 2021, Jobs Australia
wrote to the NIAA advising of concerns raised by its members, including
that the ‘predictable’ outcomes of the changes to mutual obligation
requirement had occurred, including increased domestic violence, lower school
attendance, substance abuse and aggression toward frontline CDP staff.
To sum up:
First, the shift away from voluntary mutual obligations (in relation to community
work or other meaningful activities), but not necessarily job search and other requirements
such as monthly meetings with the provider) was not due to the Covid epidemic
and lockdowns, but was a deliberate policy decision arising from the
need to insulate the program and the Commonwealth from the risk of successful litigation
based on alleged breaches of the Racial Discrimination Act.
Second there is evidence that the policy shift has contributed at least in
part to the ongoing and arguably worsening levels of social dysfunction amongst
younger members of remote communities.
Third, the ANAO documents serious deficiencies in NIAA risk management practices,
in the context of widespread acknowledgement in NIAA and in advice to Ministers
that CDP was ‘a failed program’. In para 2.27, the ANAO reports:
The August 2020 stocktake had noted that ‘[s]ince the
implementation
of CDP, the program has received criticism that it is
discriminatory, failing remote communities, racist and contributing to hunger
and poverty in remote communities and contributing to an increase in crime,
violence and suicide rates’. The NIAA advised the Minister for Indigenous Australians
that the CDP had not been successful in achieving its objectives.
Yet it took until 2024 for the Government to announce (some) details of
the replacement program due to be implemented in the second half of this year.
06 June 2024
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