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Alternative Law Journal |
Marie Leech
Marie Leech is senior policy officer with Uniya Jesuit
Social Justice Centre.
Federal government involvement in the area of provision of social services — for families and children, for Aboriginal people, for the elderly — is said to be appropriate and indeed necessary. Recent debates about child protection, child abuse and neglect suggest, particularly in regard to difficulties facing families, ‘the government should do something about it’. But can the federal government enter this field and if so, are there limitations to its capacity and willingness to operate in this area?
In Australia, State and local governments target, as separate units, education, health and social services, without regard for their interdependence in responding to the needs of families and in developing the human capital of the nation. This categorical, single-service approach has undermined a coordinated approach. It is not within the scope of this article to present a detailed history of the development of this sector. Michael Fine[1] offers a useful four-point analysis of factors affecting the development of community support organisations which results in a set of particular characteristics for the sector and Rob Watts[2] presents some useful background, tracing ideological influences and provision by ‘generous hands’ back to early references to provision for families in the early part of 19th century Australia.
The principal focus of recent debates about the needs of children and families, spurred by poverty research, has been on income support through the tax/benefit system; with debates about the provision of childcare and provision of child support also resulting in these issues becoming hotly contested. There is little in the way of a parallel debate about provision of services. Thus the political discourses are mainly focused on alleviating poverty without any real flow-on to alleviating the effects of poverty through family support, quality preschool education, parenting education and other supportive services.
People continue to fall through the gaps in this categorical patchwork. No clearly labelled front door is available as a point of contact; there is no single rallying point for access. The current spread of responsibility defuses public debate and constituency advocacy, promotes fractured policy development and causes information and reporting in this sector to be unconsolidated and fragmented. Coordinated policy and initiatives occur only inconsistently and infrequently and often depend on the vision of individuals.
Phillips makes an important case for the need for ‘adequate machinery’ to evaluate needs and to assess and guide the process so national redistribution can be on a systematic and equitable basis — ‘one of the living purposes of a federation is, in the national interest, to redistribute resources so as to achieve the maximum strength of the whole’.[3] Phillips stresses this is of particular importance in a country like Australia where different conditions and, therefore, different needs are the norm, and sums it up in a characteristic way:
In northern Western Australia and Queensland, £1 (and more) will be required to protect people from the heat, the dust and the flies. In Tasmania, the same £1 will be required to keep out the cold and the rain.
The issue of federal involvement in service provision must be set firmly in an historical context, as its unravelling involves the nature of federalism and the specific Australian variant of it. It also involves precedents set in the interpretation of various sections of the Australian Constitution. It raises such complex and wide-ranging issues as: the respective responsibilities of family and state; the respective responsibilities of Commonwealth and State/Territory governments; methods of funding social welfare programs; the implications of signing international treaties; the role of the High Court; the differing philosophies of political parties; and the limitations of federalism as a form of government.
Australia adopted federalism as its structure of nationhood, the particular blend it adopted being a direct copy of the American model. Federalism was originally ‘invented’ for the dual purpose of:
forging a viable national union from existing States, and as an institutional means of implementing indirect and limited popular government ... a simple means of creating a nation where unity is either not possible or not desirable.[4]
The form of federalism adopted by Australia differs from the older pre-1798 form (where central governments acted on States and not directly on citizens) in that it has national powers grafted onto it, thus allowing the central government to act directly on citizens. This innovation has considerable significance for the question under discussion in this article. Of equal importance is the fact that federalism in its modern form was never intended to be a neutral structure of government. It both presupposes and fosters a liberal view of the individual and of government; it encourages a free enterprise economy; and, at the same time, provides a structural barrier against centralism, operating against any form of government requiring strong central control. The Australian practical experience of federalism illustrates the tensions created in attempting to implement policies in the area of social reform.
The Constitution allocates to the Commonwealth only very limited powers, generally representing matters of national concern such as defence and interstate and overseas trade. Very few powers are exclusive to the Commonwealth and therefore, given the States’ general law-making powers, many powers are concurrent. If laws are inconsistent under concurrent powers, the Commonwealth law prevails according to s.109 of the Constitution. But as Coper points out:
the voice of the nation (however fickle it may be) can only prevail over one of its units (however constant it may prove to be) if the voice of the nation speaks on a subject on which it is entitled to be heard, that is, the law of the Commonwealth must be valid.[5]
The enumerated powers of the Commonwealth are set out mainly in s.51 of the Constitution, indicating the areas seen by the founding fathers as areas of national concern. In practice, the actual exercise of legislative power is shared between Commonwealth and States resulting in considerable fragmentation of jurisdiction. Adding to the confusion is the degree of interpretation allowed by what appears to be the simple terms of the Constitution itself. Phillips sums up succinctly the pitfalls in the exercise of interpretation:
Every schoolboy knows that in a constitution the simple is sometimes confused with the subtle and the unqualified or absolute not infrequently muddied by complication.[6]
At the time of the drafting of the Australian Constitution, little consideration was given to the inclusion of power to enter the social services field directly. The only power was that conferred by s.51(xxiii), which allowed the Commonwealth to make laws with respect to invalid and old-age pensions. This was a reflection of the world view of the time, when the concept of a government role in social services was just beginning to be debated and the prevailing philosophy was that the States or colonies should develop their own programs. The trend since then has been a movement towards the notion of a greater central responsibility in this field, resulting in a struggle with a rather unwieldy Constitution to allow legislation and funding.
The inclusion of provision for some small social services involvement by the Commonwealth in s.51(xxiii) of the Constitution was a departure from the American and Canadian Constitutions where no specific provision was made for social services. Even this modest clause was opposed at the time: not on the grounds of opposition to invalid and old-age pensions but rather on the issue of the respective roles and responsibilities of Commonwealth and States, that is, whether power in such an area should be conferred on the Commonwealth or whether it should be reserved to the States. In the event, it was included in the Constitution and the Commonwealth used its power to pass the Invalid and Old-Age Pensions Act 1908. A Labor government struck trouble in 1912 with the introduction of the Maternity Allowance Act and was forced to develop a complex path through the Constitution using s.81, which empowered the Commonwealth to appropriate money from consolidated revenue ‘for the purposes of the Commonwealth’ — a similar section in the American Constitution had by then been accepted as giving Congress unlimited spending power.
No new social welfare benefits were introduced by the Commonwealth until the outbreak of World War II and, though many factors were responsible for this inaction, constitutional uncertainties played a part. During this period, the wide scope of the Commonwealth’s ability to make grants to the States had become obvious. By 1926, it was firmly established that s.96 allowed the Commonwealth to make grants to the States subject to any conditions; the uncertain area concerned the ability of the Commonwealth to act directly for citizens in the area of social services. Notwithstanding this, the Commonwealth entered a constitutional minefield in the early 1940s by passing the Child Endowment Acts, followed by the Widows Pensions Acts and the Unemployment and Sickness Benefit Act. Aware of treading on very thin constitutional ice, the government paralleled these activities with attempts to amend the Constitution (in 1942 and in 1944), though these attempts were unsuccessful.
The issue was finally brought before the High Court as a result of the passing of the Pharmaceutical Benefits Act 1944. This resulted in a thorough scrutiny of s.81 and, to a lesser extent, s.83. Section 96 was given a similar treatment in the First Uniform Tax case (South Australia v The Commonwealth (1942) 65 CLR 373), so that, by the end of World War II, it was obvious that social welfare schemes could be implemented by conditional grants to the States but direct federal expenditure on social services was of doubtful constitutional validity; in other words, the Commonwealth’s power to impose conditions on State grants via s.96 was affirmed but activity under s.81 was cast in doubt.
It is worthwhile here making a small diversion into s.83 and examining some of its implications, together with examining the role of the High Court and making some further comments on federalism. In giving his decision in the Pharmaceutical Benefits case (The British Medical Association v The Commonwealth (1949) 79 CLR 201), Dixon J agreed with the view of the Royal Commission on Child Endowment of 1927, which recommended s.81 was not to be regarded as without limitation. But for this conclusion, he placed principal reliance on s.83. He said:
section 83, in using the words ‘by law’ limits the power of appropriation to what can be done by the enactment of a valid law. In deciding what laws may validly be enacted it would be necessary to remember what position a national government occupies and ... to take no narrow view, but the basic consideration would be found in the distribution of powers and functions between the Commonwealth and the States.[7]
Dixon J favoured a limited role for the Commonwealth within the federal structure and these views were beginning to gain acceptance by other members of the Court. The Court was influenced by preconceptions about the nature of federalism and the proper distribution of powers between Commonwealth and States. Galligan described the role of the High Court as:
a zealous guardian of the free enterprise system and an effective barrier against the implementation of radical Labor policies
and
it has drawn the line to exclude major centralist and socialist challenges to the balance of the federal system or the free enterprise economy.[8]
Following the Pandora’s box of problems opened by the High Court cases of the 1940s and acting on legal advice, the Commonwealth government decided to amend the Constitution to ensure the legality of its earlier social welfare measures. Following the approval of a referendum in 1946, s.51 (xxiiiA) was added to the Constitution, empowering the Commonwealth parliament to legislate with respect to 11 kinds of allowances, benefits and pensions, allowing not only for the appropriation of money but also for the full administration of schemes; and allowing quite a wide latitude in terms of the types of benefits that could be paid by the Commonwealth. The perception of wide latitude for the Commonwealth was short-lived. The power was tested in the case of the British Medical Association v Commonwealth (1949) 79 CLR 201, where it was decided the power conferred by s.51 (xxiiiA) was limited to the provision of the specified benefits by the Commonwealth itself — in other words, it could not require the States or other bodies to provide social welfare benefits.
A further limitation arose from the suggestion by Dixon J in the British Medical Association case that the power to provide family allowances extended only to monetary payments and not to the provision of goods and services. Such a condition would hamper the Commonwealth in making welfare services available directly to groups in the community. Thus entry into the social services field via s.51(xxiiiA) as a head of power remains cloaked in legal uncertainty. Sackville suggests that it is doubtful whether the Commonwealth itself has power to establish, for example, a nationwide system of creches for the children of working mothers since this would not be a family allowance (although of course the same result could be achieved through conditional grants to the States under s.96).[9] Schemes funded in this latter fashion might encounter more political difficulties and consequently prove to be less effective in terms of the Commonwealth’s objectives than schemes directly established and administered by the Commonwealth itself, illustrating the direct impact on the Commonwealth of constitutional limitations.
A possible constitutional pathway to foster direct Commonwealth involvement in provision and administration of social services emerges through an unexpected section of the Constitution, s.51 (xxix), which provides legislative power to implement treaties within domestic law. An extension of the analysis of the power of the Commonwealth to enter the social services field can be developed based on an examination of the alternatives available through implementing commitments based on signing international treaties. On the surface, s.51 (xxix) seems fairly straightforward. It covers what Coper describes as ‘an abstract and abstruse’ concept, the concept of an ‘external affair’. Why the Commonwealth was given this power in the first place is something of a mystery, as Australia’s external affairs (both before and after Federation) were conducted by the British government and it was not intended or expected that this would change. Gradually the Commonwealth assumed this function, including the negotiation and ratification of treaties (just how, in legal terms, it acquired a treaty-making power which it did not have in 1901 is another mystery). The Commonwealth’s treaty-making power is not in doubt now (the power to enter into treaties is an executive power within s.61 of the Constitution) and treaty-signing has moved along at a steady pace. There is, in fact, uncertainty as to the precise number of treaties to which Australia is currently a party — somewhere in the vicinity of 920 — and a recent Senate committee report recommended an audit of treaties to determine the precise scope of Australia’s international obligations.
Treaties entered into do not automatically become the law of the land; they may give rise to obligations under international law but any change to domestic law requires legislative implementation. Thus, having signed an international treaty, the Commonwealth government might choose to pass legislation implementing the attendant international obligations and such legislation would be valid because it would be legislation with respect to ‘external affairs’ within the meaning of s.51 (xxix) of the Constitution. Precedents for using s.51(xxix) to implement legislation based on international treaties include the Koowarta (Koowarta v Bjelke-Petersen (1982) 153 CLR 168 and the Franklin Dam (The Commonwealth of Australia v Tasmania (1983) 158 CLR 1) cases. Having thus established a valid law, the Commonwealth could then use s.83 to fund its implementation. The final three words in that section ‘made by law’ are of critical importance, and highlight the need for using the external affairs power to pass legislation. If there is no constitutional power, then there can be no law and, if no law, then no appropriation.
Interpretation of s.51(xxix) goes to the very heart of the nature of federalism and the role of the High Court in shaping it, as the power supports legislation that implements Australia’s obligations under treaties, regardless of whether the subject matter of the treaty is otherwise constitutionally within the Commonwealth’s legislative power. A ‘wide’ interpretation enables the Commonwealth to legislate on virtually any topic, including provision of social services (or even, as Coper comments, on the shape and size of ice-cubes in a refrigerator!), so long as that topic is the subject of an international agreement; in other words, treaty-signing can be used as a ‘back door’ method of expanding the range of the Commonwealth government’s powers. Such a style of interpretation would destroy the notion of a constitution intended to give only limited powers and would thus distort the notion of federal balance.
The relationship between international law and Australian law was thoroughly canvassed in the High Court’s deliberations during the Teoh case (Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273) and in subsequent government statements. The majority decision of that case sums up the traditionally accepted wisdom:
It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.
Thus, traditionally, the domestic ramifications of Australia being a party to an international treaty were limited.
In the Teoh decision, the majority reached the conclusion that ‘ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act’ but:
Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the convention [of the Rights of the Child] ...
Thus, as pointed out by Susan Roberts, the Teoh decision is notable in that it gives unprecedented significance to the ratification of international instruments by the executive, in particular the Convention on the Rights of the Child, when the majority of the High Court stated the ratification of such instruments creates the basis for a legitimate expectation.[10] It is also notable in that it provoked a swift and all-encompassing reaction from the government.
The Labor government response (made just a little over a month after the Teoh decision) was released in the form of a joint statement by the Minister for Foreign Affairs and the Attorney-General on 10 May 1995. It noted that while only a small number of the 920 (or so) treaties Australia has ratified may give rise to a legitimate expectation:
The High Court gives little if any guidance on how decision-makers are to determine which of those treaty provisions will be relevant and to what decisions the provisions might be relevant, and because of the wide range and large number of decisions potentially affected by the decision, a great deal of uncertainty has been introduced into government activity. It is not in anybody’s interests to allow such uncertainty to continue.
The government’s joint statement announced its intention to rectify the perceived uncertainty by restoring the pre-Teoh case position by statutory amendment and made its views on the situation abundantly clear:
We state on behalf of the government, that entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if relevant provisions of that treaty have not been enacted into domestic Australian law ... Any expectation that may arise does not provide a ground for review of a decision. This is so, both for existing treaties and for future treaties that Australia may join.
On 28 June 1995, legislation — The Administrative Decisions (Effect of International Instruments) Bill 1995 — was introduced into parliament to reverse the position created by Teoh. On 25 February 1997, the Minister for Foreign Affairs, Alexander Downer, and the Attorney-General, Daryl Williams, on behalf of the federal coalition government, issued an Executive Statement affirming the above position. The legislation intended to reverse Teoh is still pending.
The Teoh case and the former and current government’s reaction to it prompt many questions in many areas, questions that remain unresolved due to an ongoing failure to thoroughly examine and clarify Australia’s legal obligation under international treaty law. The elevation of the ratification of international treaties to a position of creating ‘a legitimate expectation’, together with precedents set by the Koowarta and Franklin Dam cases, places in the spotlight the potential use of s.51(xxix) as an instrument to provide a head of power in relation to the provision of social services by the Commonwealth.
Overlaid on the issues arising from federalism and the Australian Constitution are issues relating to the different responses of different political parties/different governments in this arena. The Curtin-Chifley government of the 1940s operated under the guiding philosophy that the central government should be responsible for the provision of social services. In contrast, the Liberal-Country Party Coalition, which took office in 1949, argued that individuals should take care of themselves, with the State acting only in the last resort. The consequence of this policy is seen in all areas of social welfare during the period this government was in office, with benefits eroding in real value and an emphasis on voluntary insurance permeating many areas of provision. By the time Labor under Whitlam came into power in 1972, the Labor Party had (almost) come to terms with living with the Constitution. In 1957, Whitlam expressed Labor’s frustration thus:
The Australian Labor Party ... has been handicapped ... by a Constitution framed in such a way as to make it difficult to carry out Labor objectives and interpreted in such a way as to make it impossible to carry them out.
The federal system had always acted as a brake on Labor’s progressive goals by dividing the party, breaking up the electorate and acting as a barrier to centralism and reformism. According to Whitlam, buck-passing between the Commonwealth and the States had eroded the foundations of democratic responsibility in Australia with citizens becoming victims of what Senator John Button described as ‘the bouncing back and forth of the poison ball of political responsibility’.[11] Whitlam, however, had taken the initiative of rewriting Labor policies with the intention of exploiting existing powers rather than constantly prefacing statements and policies with the need for Constitutional amendments. Whitlam’s strategy involved a heavy reliance on s.96, linking grants to the States to specific purposes.
Labor’s heavy reliance on s.96, combined with its centralist ethos, which demanded involvement in planning the programs for which finance was provided, provoked considerable opposition from State, local and non-government agencies. The States became increasingly resistant to becoming administrative spending agencies of the Commonwealth government and the resulting anti-centralism contributed to the election of the Fraser government in 1975. Fraser’s philosophy was neatly summed up in his statement that:
universal services administered by a centralised government monopoly... makes everyone dependent on what government chooses to provide.[12]
The Fraser government favoured the handing back of a number of policy areas to the States, to non-government welfare agencies and to the family; the government’s Task Force on Co-ordination in Welfare and Health recommended a reduced welfare role for the federal government. Little if any thought was given to the structuring of an integrated effective welfare system and thus community organisations suffered a dramatic decline in the level of Commonwealth financial subsidies. The philosophy of devolving responsibility onto the States, non-government agencies and the family was not matched with planning or financial aid. This uncoordinated pattern of interaction with the social services field established by these successive governments continued through the Hawke/Keating era to the Howard Coalition of the mid-1990s.
The historical background enables a reasonably accurate prediction of Commonwealth government action in relation to specific welfare issues. It does this by illustrating the roles of federalism and the Constitution and how governments have navigated through the twists and loops; by highlighting in some detail various interpretations of the Constitution (especially ss.51, 81, 83 and 96); and by providing insights into the potential role of ratification of international treaties. It allows us to come to conclusions about how different political parties/different governments would proceed in the area of social service provision. Having signed an international treaty, a Labor Party would enact legislation using s.51(xxix) — a law with respect to external affairs — and would attach the provisions of the treaty as a schedule. Having thus enacted a ‘valid law’, s.83 would be used to provide funding. In keeping with the centralist ethos of the Labor Party, the actual carrying out of the provisions of the treaty would be handed over to the Human Rights and Equal Opportunity Commission (or some such body) who would undertake to educate, receive and act on complaints, carry out research and so forth. Meanwhile, coalition governments would take an approach in keeping with their tendency to devolve responsibility to the States. They would use s.96 of the Constitution and would then negotiate conditions with the States.
The above analysis prompts a discussion of the advantages and/or disadvantages of Commonwealth government versus State/Territory government control of social services/programs. Elliott draws attention to attacks by the likes of Hadley and Hatch in Britain and Henderson in Australia on ‘the centralist faith’ that underlies contemporary welfare systems with the main basis of their arguments being that central government:
cannot effectively shape or administer detailed policies because of its remoteness from the recipients.[13]
There is a strong case in Australia for the opposite view, that central government and control is crucial to social welfare provision. Historically local government has not played a major role in the welfare arena with evidence this arm of government has always been dependent on government finance and has been unable to cope during recessions. State governments have tended to provide a patchwork of services and, in general, have not had the resources to expand their services significantly (although a GST might change that). Many commentators believe State and local government can only ever hope to respond to crises and therefore the task of planning and overall promotion of national welfare must rest principally with a national government, with local organisations acting to carry out the general plans of the central government.
There is a powerful case for Commonwealth involvement in the provision of services in Australia, especially services for children and families with children. The terms most commonly used to describe overall service provision are: fractured, fragmented, patchwork, uncoordinated, categorical. Australia has a collection of activities, a collection of diverse funding mechanisms and different patterns of development that have resulted in this fragmented patchwork of programs and services. Little is known about the content of many programs and services due to woeful data collections by most authorities. Such small increments in service provision as occur do so often as a response to local conditions and not as part of a broad policy framework and thus, while well meaning and filling perceived gaps, these increments are uneven and ad hoc and contribute further to fragmentation. Thus the picture is one of the current structure having evolved from different federal, State and local government, charitable and private funding sources, a collection of activities that has evolved over time from separately enacted pieces of legislation at State and federal levels, with competition existing among these sectors for the funding dollar. A further significant and serious limitation in provision is lack of evaluation — program development has consistently outstripped program evaluation and therefore there is very little evidence to indicate what works and for whom and when and how and why.
In examining the relevant sections of the Constitution, the amendments made to it, and the potential for expansion of Commonwealth involvement by means of the external powers made available through the government becoming signatory to international agreements and treaties, difficulties surrounding the formation of social policy and its implementation become clear. Within the complex tangle of constitution, federalism and different political approaches, it is clear that pathways can be found for the Commonwealth to rectify current problems of fragmentation, categorisation, unevenness and inconsistency by assuming the crucial role of provider of social services in Australia. Greater Commonwealth involvement and the adoption by it of a primary coordinating role, consistently and uncontroversially, through use of the treaty power, would go far in solving current problems of jurisdiction.
References
[1] Fine, Michael,
‘Community-based Services and the Fragmentation of Provision: A Case Study
of Home and Community Care Services in a Suburban Community’, (1995) 30(2)
Australian Journal of Social
Issues.
[2] Watts, R.,
‘Generous Hands Intervening: Mother State and the Welfare of Women,
Children and Families’, in R. Batten, W. Weeks and J. Wilson (eds),
Issues Facing Australian Families: Human Services Respond, Longman
Cheshire, 1991.
[3] Phillips, P.,
‘Federalism and the Provision of Social Services’, in K. Hancock
(ed.), The National Income and Social Welfare, Cheshire, 1965,
p.41.
[4] Galligan, B.,
‘Federalism’s Ideological Dimension and the Australian Labor
Party,’ (1981) 52(2) Australian Quarterly 128-40 at
130.
[5] Coper, M., Encounters with
the Australian Constitution, CCH, 1987,
p.37.
[6] Phillips, above,
p.47.
[7] Sackville, R.,
‘Social Welfare in Australia: The Constitutional Framework’ in A.
Graycar (ed.), Perspectives in Australian Social History, Macmillan,
1978, p.84.
[8] Galligan,
above.
[9] Sackville, above,
p.59.
[10] Roberts, S.,
‘Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh: The
High Court Decision and the Government’s Reaction To It’, (1995)
2(1) Australian Journal of Human Rights, Australian Human Rights
Information Centre.
[11] Coper,
above, p.83.
[12] Elliott, G.,
‘The Division of Responsibility for Welfare in Australia’, (1984)
56(2) The Australian Quarterly 172-82 at
178.
[13] Elliott, above,
p.172.