Machine gunning the welfare lifeboat Part B pages 5 to 8

(B) Annual Report – Financial Year 2008 – 2009.

Participation Compliance Reports

Participation Failures

Serious Compliance Failures

628,987

562,777

62,210

As this data set from the 2008 – 2009 Financial Year report indicates, the number of Breachings, now called ‘Compliance Failures’, had sky rocketed from 346,078 to 628,987. The 2008-09 figure represents an increase 81.47% when compared to the 2000-01 figure.

However, since the 2000-01 Financial Year statistics were collated, a number of significant changes have occurred. A “three strikes” penalty system now applies with a “Participation Failure” penalty of ‘only’ one day’s allowance payment withheld instead of the former 13 week penalty. Instead of a 13 week “Serious Compliance Failure” penalty, it is now ‘only’ an 8 week penalty. Whilst these changes in penalties represent a significant improvement compared to the situation in 2000-2001, I have put the word “only” in italics because any financial penalty at all represents a substantial economic loss to vulnerable people who are struggling to meet “their basic costs of living”.

As the following statement from the 2008-09 Annual Report also makes quite clear, a number of changes have been put in place in an attempt to minimize the negative humanitarian consequences of Breaching/Compliance Measures penalties.

Participation Solutions Teams are responsible for considering all factors that may have contributed to a participation failure, especially taking account of a customer’s vulnerability and ability to comply. Customer Service Advisers in Participation Solutions Teams carry out individual assessments with each customer. When needed, the teams use specialist staff, including Indigenous Service Officers and social workers, to help with assessments.

Again, the introduction of assessment procedures to determine the possible consequences of compliance failure penalties is a significant improvement, at least on paper. In theory, the use of Participation Solutions Teams sounds like an excellent measure but the sheer number of compliance failures, 628,987, spread over 240 working days during the 2008-09 Financial Year, works out at 2,621 “reviews” per nine hour working day, i.e. more than 5 reviews per minute! One has to wonder just how comprehensive and accurate these reviews really are.

Ever since the end of World War One, mental health professional organizations have accumulated massive amounts of statistical and medical data on the endemic problem of suicides amongst unemployed people, especially the long term unemployed. A former president of the Royal Australian & New Zealand College of Psychiatrists once informed me that being unemployed can be an emotional “10” that can be at traumatic as the death of a child. It is quite clear from this accumulated data, that suicide risk assessment is a critical aspect of the Compliance Measures Vulnerability Assessment process. However, at a rate of over 5 assessments per minute, the chances of an unqualified CSO detecting a potentially suicidal client is almost non-existent.

Window Dressing.

When needed, the teams use specialist staff, including Indigenous Service Officers and social workers, to help with assessments.

Whilst that sounds really good, in practice the (literally) fatal flaw in the process is the key phrase, “When needed…”. With an average of 2,620 reviews per day, the chances of a review team detecting a potentially suicidal person are extremely low. It takes up to10 years for a person to qualify as a psychiatrist and yet, even with all that training and experience, psychiatrists often fail to identify people who are high level suicide risks.

Detecting a potential suicide risk is a professional skill that is well beyond the professional skill set of the majority of administration staff who are members of the Participation Solutions Teams. The phrase “When needed…” makes it abundantly clear that mental health professionals are not involved in the routine evaluation of compliance failure assessments and that the initial “assessment” of ‘need’ is made by a person who is not a qualified mental health expert. To put it bluntly, when the primary assessor is a Customer Service Officer (CSO) or an administration trained bureaucrat, the mental health risk assessment process is nothing more than window dressing.

Centrelink has access to some 450 psychologists, i.e. 4 year trained mental health professionals. Again, this represents a massive improvement upon the 2000-01 situation when no pre-breaching assessments were made. The problem is that 628,987 mental health risk assessment, even when shared amongst 450 psychologists, represents a case load of 1,398 clients per year. I very much doubt that any professional mental health organization would claim that such a massive case load is anything more that tokenistic window dressing.

Restricting the mental health assessment to the Serious Compliance Failure group which numbers 66,210 still represents a very high average case load. However, it means that the people who are in the 562,777 Compliance Failure group are left swinging in the breeze. Given that Compliance Failure penalties are specified in statute law, there is a legally enforceable Duty of Care obligation upon Centrelink to no action that would endanger the health, the welfare and/or the safety of vulnerable clients. The problem with Compliance Failure Penalties is that they place the Crown is in a ‘No-win” situation because, by the definition of the welfare allowance that was set out in paragraph 47 of the 2002 Welfare Reform Discussion Paper, every welfare recipient is a vulnerable, at-risk person.

(C) Annual Report – FY 2008 – 2009 :- Financial Case Management.

Eligible for/Accepted financial case management

Centrelink financial case managed

NGO financial case management support

No financial case management support at time of data extraction.

2,805/2,322

815

650

857

This data set highlights the extent to which the Crown, and therefore taxpayers, are exposed to potential Tort actions by the victims of arbitrary Compliance Measures.

Of the 2,805 clients who met Centrelink’s arbitrary definition of “Exceptionally vulnerable”, at the time that the data was extracted from Centrelink’s database, only 1,465 clients were actually receiving Financial Case Management support! That is just 52% of clients that Centrelink staff had identified as meeting Centrelink’s very stringent “Exceptionally vulnerable” criteria. What this data set does is tell the world that 48% of Centrelink’s “Exceptionally vulnerable” clients have been deliberately left with no means of support in meeting “their basic costs of living”. Unfortunately, the following statement from the 2008-09 annual report further potentially increases the Crown’s legal liability:

When a job seeker, who is either exceptionally vulnerable or has vulnerable dependants, faces an eight-week non-payment period, Centrelink offered financial case management services to help prevent hardship. Eligible job seekers had their essential expenses paid up to the limit of the income support they would otherwise have received. Essential expenses include reasonable costs of living, such as food and other household provisions (for example, laundry detergent, and personal hygiene and pharmaceutical products), rent, mortgages, medical expenses, rates, gas, electricity, telephone, public transport and other reasonable costs”.

What this statement actually does is to spell out in objective, specific detail, not merely the level of support that financial case management provides, but also the extent to which the Serious Compliance Failure Penalty deliberately deprives exceptionally vulnerable people of their ability to meet “their basic costs of living”!

Even worse, it dramatically highlights the absolutely appalling recklessness of the former 13 week long “sudden death” compliance penalty known as Breaching which was imposed without any humanitarian impact assessment or post breaching financial case management support.

Worse of all, the Howard Government’s use of Breaching Quotas is a matter of public record. First reported by Cheryl Kernot MP in her June 27th 2000 press release, these quotas were later confirmed by Centrelink staff who testified at the publicly funded independent Pearce Inquiry that they were forced by Centrelink management to meet breaching quotas. As I pointed out in Part 1 of this submission, “A reckless disregard for human life that results in the death of a person” is a Homicide.

Does deliberately depriving exceptionally vulnerable, at-risk people of the ability to meet “their basic costs of living” qualify as a reckless disregard for human life? I may not be a lawyer but I am, I hope, what the courts would define as “A reasonable person” and to me, Breaching/Compliance Measures most certainly qualify as a reckless disregard for human life.

Manifestly Unfair Disadvantage.

At the time of writing Part 2 of this submission, July 4th 2010, I have two grave concerns.

Firstly was a statement last month by the Opposition Leader, Tony Abbott, about re-instating Breaching if re-elected. Whilst he was the Employment Minister in the former Howard Government, he supported legislation that would have increased the “sudden death” breaching penalty to 26 weeks!

Secondly, I am concerned about the new Competition and Consumer legislation that came into effect on 1st July 2010. This legislation targets consumer contracts that contain clauses that provide manifest advantage to the service provider whilst inflicting a manifest disadvantage upon the consumer who enters into a contract with the service provider. This law could potentially be a very powerful Persuasive Precedent in any challenge to the legal validity of Breaching/Compliance Measures legislation.

It is reasonable to ask the question, How is it that Centrelink can unilaterally and arbitrarily impose a staggering 628,987 Compliance Failure penalties in just 240 working days? Clearly, welfare recipients are being placed at a Manifestly UNfair Disadvantage, either by the ‘fine print’ provisions contained in the Newstart contract or else by the legislated Compliance Failures defined in the Social Security Act.

Approximately 700,000 job seekers and 628,987 compliance failures! Those numbers just do not stack up. If a commercial organization such as a bank or a telecommunications company were to unilaterally impose draconian penalties on 90% of its customers, there would be national outrage and demands for a government inquiry.

Welfare recipients should not have to waive their constitutional, legal and civil rights when, through force of economic circumstance, they have no other survival option but to sign a Newstart contract. However, the incredibly high rate at which compliance failure penalties are applied is empirical evidence that the Newstart contract and/or Welfare legislation contains compliance provisions that manifestly disadvantage job seekers.

Final Observations

  1. One of Centrelink’s stated priorities is “Helping people move forward”. 400 years Edward Teach, commonly known as the pirate, Blackbeard, had the same priority. He called it “Walking the plank”. In 2000-01 Centrelink CSOs called it “Breaching Quotas”. Centrelink management called it “Compliance Measures”. Whatever the name, for helpless victims the end result was always a personal disaster.
  2. In 1996 some CES staff were engaging in Breaching competitions as a vocational ‘sport’. Staff involved in this activity kept their own personal “Scorecard”. When the CES was disbanded some senior staff were transferred into what became Centrelink. In 1997, Centrelink management introduced a performance regime called “The Balanced Scorecard”. Was this “Scorecard” reference purely a coincidence or was it a case of “Old habits die hard”?
  3. Check out Centrelink’s annual reports webpage at: www.centrelink.gov.au/internet/internet.nsf/about_us/publications.htm and you will notice that the annual reports for FY 2000-2001 and FY 2001 -2002 are only available in a ‘short version’ that is totally devoid of information about breaching. Is it just coincidence that those were the two financial years that the Howard Government was ruthlessly enforcing breaching quotas, or is it a case of an attempt to bury the information dealing with that illegal activity?
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