The federal government’s Cashless Debit Card scheme, which would be extended to the Northern Territory and Queensland’s Cape York while also becoming permanent under proposed new legislation, could breach the Racial Discrimination Act, according to an analysis by the Law Council of Australia.
As the Coalition attempts to rush legislation that embeds the contentious income management program through the parliament the national professional body for lawyers, representing 16 state and territory societies and bar associations, has completed a new test of the policy’s legality.
It concerns the substantial quarantining of income on the card — 80 percent of welfare payments which cannot be spent on alcohol, gambling or drugs — and the fact it disproportionately affects First Peoples.
About 38 per cent of all active CDC “trial” participants are Indigenous but in the East Kimberley region, where this card has operated since 2015, 82 per cent of all people forced to use the card are Aboriginal or Torres Strait Islanders. Some 25,000 income management participants in the Northern Territory currently subject to an older policy would be automatically transferred to the tougher cashless debit card if the bill before parliament is passed. Of these, 83 per cent are Indigenous.
This is crucial in the development of a potential race discrimination case. The fact the government has long claimed, and does so again in the draft legislation, that the CDC is not targeted toward individuals of any particular race may actually work against the commonwealth in any defence.
In its submission to the Senate Standing Committee on Community Affairs inquiry on the bill, the Law Council uses a judgment in a High Court of Australia about grog bans in Queensland’s Palm Island to query the legality of the cashless debit card.
While a five-to-one majority in that case found the bans interfered with fundamental human rights — triggering section 10 of the Racial Discrimination Act — the court also unanimously found that they were not invalid because they had been specifically crafted for the benefit for “the sole purpose of securing adequate advancement of the beneficiaries”.
“The CDC is explicitly characterised as ‘not targeted at people of a particular race, but to welfare recipients who meet particular criteria’,” the Law Council says in its submission.
This alone appears to remove the legal argument that the CDC is a special measure, which might protect the commonwealth, but does nothing to stop it engaging section 10 of the RDA.
“Section 10 does not require that a particular provision only affect members of a particular group and no others, nor that all members of a particular group are affected,” the Law Council says.
That was also the view of then Chief Justice Robert French in the Palm Island case, Maloney v The Queen.
The Law Council says, on these grounds, it is arguable that an Indigenous person receiving a working age payment in the East Kimberley “trial” site and any of the thousands of First Peoples in the NT who would be transferred to the CDC under the bill would be able to say the card “significantly interferes with the ability to enjoy the right to social security (and other rights) in practice compared to non-Indigenous people receiving a similar payment in an area which is not subject to the CDC.”
Even if the federal government wanted to mount an argument the CDC is for the good of the people it applies to, it would be very difficult to establish because the new bill removes the requirement for an independent evaluation, winds back meagre safeguards and “deletes the current objects of determining whether such reductions decrease violence or harm in trial areas.”
This is a “significant shift” in the stated goals of the program, the Law Council says.
Mining billionaire Andrew “Twiggy” Forrest’s foundation Generation One — an offshoot of Minderoo — was asked by Labor Senator Sue Lines whether people in the current trials “who pay their rent or mortgage on time, have no history of drug or alcohol use or abuse, have savings in the bank, have some form of employment” should be forced to use the card.
In a written response released on the committee website yesterday, the foundation said: “Where the CDC is implemented in a community, it is Generation One's position that the card should be applied to all welfare recipients other than those in receipt of the aged or veteran's pension.”
Forrest, who has no experience in social policy, is the architect of the cashless debit card. Last week it was revealed that he and his foundations remain intimately involved in the policy formulation for the card.
Citing independent research from a team of university researchers, the Law Council notes the authors “found that income management may undermine rather than support stated policy objectives of creating more autonomous, independent individuals who will be more likely to transition into employment.”
The Law Council says it may also be “difficult to establish” whether the conditions of the CDC are reasonable under section 91(A) of the Racial Discrimination Act.
The Coalition has the votes of Pauline Hanson and her party colleague Malcolm Roberts. Yesterday, Centre Alliance — with its one senate vote — said it would not support the legislation. Tasmanian Senator Jacqui Lambie is unlikely, as it stands, to vote for the bill. South Australian independent Rex Patrick has not made his intention clear. The government needs one of these votes to permanently enshrine the card in law.
Rick Morton is the author of the bestselling One Hundred Years of Dirt. He has been a journalist for 15 years with a particular focus on social policy and national affairs. Rick is the senior reporter for The Saturday Paper.
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