More Than Luck | Edited by Mark Davis and Miriam Lyons, Sharing the luck

Closing the evidence gap

2 Comments 20 August 2010

by Larissa Behrendt

The story so far

The national apology delivered in federal parliament by Prime Minister Kevin Rudd on February 13th 2008 appeared to signal a major transformation of Indigenous policy in Australia. Defeated Liberal Prime Minister John Howard had tenaciously refused to make this elementary gesture. Indeed his prime ministership was marked by a rejection of the reconciliation process that had begun in the Hawke/Keating era. His antagonism towards any recognition or protection of Aboriginal rights was almost visceral.

The apology together with the endorsement of the United Nation’s 2007 Declaration of the Rights of Indigenous People immediately differentiated Rudd’s Indigenous affairs policies from those of Howard’s. Like the apology, the Howard government opposed the Declaration, refusing – along with Canada, New Zealand and the United States – to become a signatory because of ideological problems with both the concept of the Declaration and its content, especially its recognition of the right to self-determination.

These symbolic gestures raised expectations that the Labor government would aggressively tackle Aboriginal disadvantage – that the symbolic shift would be matched by actual improvements to the material circumstances of indigenous Australians. Rudd nurtured encouragement of this expectation in his apology speech: ‘unless the great symbolism of reconciliation is accompanied by an even greater substance, it is little more than a clanging gong. It is not sentiment that makes history; it is our actions that make history’.

It is therefore surprising and disappointing that the key Indigenous affairs initiatives and assumptions of the Rudd-Gillard Labor Governments were inherited from Howard’s. These include the quarantining of welfare for Aboriginal people; the belief that home ownership by itself can reduce poverty; the view that private schools offer a panacea for poor education levels amongst Aboriginal children; the suspicion of Aboriginal control over land; and the granting of land tenure through leases to the government and through conditional access to public housing.

Combined with the continuation of the Northern Territory intervention – perhaps the most concerted attempt to implement the above policy vision – the Rudd- Gillard Governments have furthered an agenda that was designed by the Coalition.

As the Northern Territory intervention demonstrates, this agenda is top-down (designed in Canberra and implemented with little or no consultation or engagement with Indigenous people, their organisations or their communities), is influenced by tired ideology (mainstreaming and assimilation – approaches that have been tried before and failed), laced with the self-righteousness of paternalism (“we just care about women and children”) and clearly discriminatory (given that the Racial Discrimination Act had to be suspended in order to implement the policy).

Fast facts: Impact of the Northern Territory Intervention

The most recent whole of government report monitoring the situation in the top end, covering the period from January to June 2009, showed that:

  • Child malnutrition is up despite the 85 licensed stores, the 15,000 BasicsCards and $200 million worth of income managed funds
  • Total enrolments and school attendance rates are marginally lower
  • Alcohol, drug and substance abuse incidents, domestic violence related cases and breaches of domestic violence orders have all increased despite a far greater police presence

Source: Closing the Gap in the Northern Territory 2009 1

The reform agenda: Closing the Gap

Aboriginal and Torres Strait Islanders have shorter life expectancy, lower levels of education, higher levels of unemployment, and are more likely to live in poverty and to live in an overcrowded house than other Australians.

New 2005-2007 experimental figures from the Australian Bureau of Statistics calculate life expectancy at birth of Aboriginal and Torres Strait Islander Australians at 67.2 years for men and 72.9 years for women. These figures are well below the 82.6 and 78.7 year average for non-Indigenous females and males respectively, for the same period and create life expectation inequality gap of 9.7 years for females and 11.5 years for males. 2

Approximately 30 years ago, life expectancy rates for indigenous peoples in Canada, New Zealand and the United States of America were similar to the rates for Indigenous peoples in Australia. However, significant gains in life expectancy have been made in the past two decades in the indigenous populations in Canada, New Zealand and the United States of America. Comparable mortality rates for Aborigines and Torres Strait Islanders in 1990-1994 were at or above the rates observed 20 years ago in Maori and Native Americans, being 1.9 times the rate in Maori, 2.4 times the rate in Native Americans, and 3.2 times the rate for all Australians. 3

Indigenous people have lower levels of education than non-Indigenous Australians. 49.9 per cent of non-Indigenous Australians have no non-school qualification compared with 71 per cent of Indigenous Australians.

The Rudd-Gillard Labor Governments have adopted the rhetoric of “closing the gap” to describe their aspiration for achieving socio-economic equality for Aboriginal and non-Aboriginal Australians.

The positives

Overall, there are many positive aspirations in the rhetoric of this reform agenda. These include aims to:

  • Increase the literacy rates of Aboriginal and Torres Strait Islander children and to improve levels of their school attendance;
  • Improve the health of Aboriginal people;
  • Reduce violence and sexual abuse of Indigenous women and children.

But there is a gap between these aspirations and results on the ground. And there is a gap between the government’s rhetoric of wanting to take an “evidence based” approach and its actual policies.

The barriers

Some of those barriers to achieving equality for Indigenous people under the current policy framework include:

  • The limited definitions of “closing the gap”. The areas targeted by the government in its report card are narrow. Australians for Native Title and Reconciliation (ANTaR) have pointed out that there are serious flaws in the broader strategy, in particular, overlooking evidence of what works, including key determinants of health inequality and disadvantage critical to achieving its closing the gap targets and not working in partnership with Indigenous people to develop or implement its closing the gap strategy.
  • Funding interventions instead of facing the underlying issues. Indigenous policy is always targeted at intervention, at emergency. It rarely seeks to look at the underlying issues. Addressing disadvantage requires long term solutions, not just interventions. Rather than always reacting to a crisis, a long-term sustained approach requires addressing the underlying causes of disadvantage. This means resourcing adequate standards of essential services, adequate provision of infrastructure and investment in human capital so that communities are developing the capacity to deal with their own issues and problems and have the skill sets necessary to ensure their own well-being. There are no short-cuts, quick fixes or panaceas. Whatever the perceptions of the electorate, the fact is that there is not enough money spent on Aboriginal housing, education and health. 4 The pot is too small and no government will fix the problems while all they do is engage in trying to redirect the scarce resources towards one pressing need at the expense of others.
  • Focus on remote communities. Much of Indigenous policy is targeted at remote communities – resources too. 5 Look at where the previous government and the current government are directing resources for social housing and you will see it is primarily focused on remote communities. Yet the largest Aboriginal communities do not live in remote areas. They live in cities. The largest is in Western and South Western Sydney with 28,065 Indigenous people. 6 And on the recent Australian Bureau of Statistics figures it is one of the most socio-economically disadvantaged communities in the country, more disadvantaged than many of the Aboriginal communities being targeted by the federal government. 7
  • Ideology over research-based approaches. Indigenous affairs is full of ideologies. These include the ideologies of assimilation and mainstreaming, the newer ideologies of mutual obligation and shared responsibility, and the ideology that communally-held land is bad – if it is held by Aboriginal people – and should be unlocked so that non-Aboriginal people can access it. An example of the ideological approach in action is the policy of quarantining the welfare payments of parents of Aboriginal children who do not attend school. There is no evidence that shows that linking welfare to behaviour reforms is effective. 8
  • Failure to engage in a robust policy debate. When the Northern Territory intervention was first rolled out in June 2007, the Howard Government silenced critics by accusing anyone who didn’t support all of the measures of ‘protecting’ paedophiles. Once in office, the Labor government has done much the same. Rational policy debate over whether these policies are effective is avoided by the repetitive deployment of phrases such as ‘we just care about women and children’ or mealy-mouthed assurances that ‘we are committed to closing the gap’.
Mythbuster: The Northern Territory Intervention has led to an increased consumption in fresh food

Jenny Macklin, Minister for Indigenous Affairs, claimed she had evidence that the intervention was increasing the consumption of fresh food because more was being sold through community stores. When questions were asked in Senate estimates about how these claims were substantiated, it was revealed that the basis of the evidence Macklin relied on was a survey of ten phone-calls to community stores asking whether there was an increase in fresh food sales. Six said ‘yes’, three said ‘no’ and one said they ‘didn’t know’. 9 While properly conducted phone surveys have a time and a place, it was patently clear that more complex questions needed to be asked. For example, who was buying the food? Was it the indigenous peoples whose income was quarantined? Or was it the army and coterie of public servants brought in to roll the intervention out?

Subsequent longitudinal studies conducted by the Australian Indigenous Doctor’s Association (AIDA) 10 and the Menzies School of Health Research 11 demonstrate that there is no evidence of an increase in consumption of fresh food or that income quarantining is working. In fact, AIDA concluded that the documented harms greatly outweigh any of the few benefits cited by the government.

The Labor government’s racially discriminatory approach to Aboriginal policy is most clearly seen in the area of housing, a policy cornerstone of the Northern Territory intervention which has in turn been championed by Macklin.

The evidence likewise suggests that the intervention is failing to improve other key measures of child welfare. Sunrise Health Service in the Katherine area has been collecting data since before the intervention. Its data indicates anaemia rates in children under the age of five have jumped significantly since the Intervention. From a low in the six months to December 2006 of 20 per cent—an unacceptably high level, but one which had been reducing from levels of 33 per cent in October 2003—by June 2008 it had reached 55 per cent. Those results equated with early childhood anaemia levels in Iraq and Zambia; and are worse than Zimbabwe, Pakistan, Bangladesh and Algeria. 12

Policy ideas

Idea #1 – A non-discriminatory housing policy

The policy on Aboriginal housing reflects the discriminatory assumptions that run through federal Aboriginal policy-making. Housing in the community sector is the responsibility of the Federal Minister for Housing, Tanya Plibersek, whilst Aboriginal community-owned housing falls under Macklin’s ministerial responsibilities. Macklin argues that Aboriginal communities would benefit from the ‘strong regulatory framework’ provided by the state and territory government agencies in relation to the provision of housing.

By comparison, Plibersek is more sceptical of the ability of public housing authorities to deliver, as reflected by her remark that, ‘We are often not delivering opportunities for public housing tenants; 90 per cent of stock is held by eight government providers; and our system is not transparent or accountable.’ 13 She has also spoken supportively of what she thinks community-based housing organisations can provide: they are good at tenancy management, often have lower rates of rental arrears and possess better track records at maintenance than state housing authorities.

There is an important ideological difference here. Plibersek supports the transfer of the title of public housing from state and territory housing authorities over to the community housing sector so that they can provide housing. Macklin has a completely different attitude. She insists that the title of the land on which community housing is built must be transferred from the Aboriginal community to state housing authorities through a long term lease (from 40 to 99 years). Housing is then delivered by government housing authorities (the same ones that Plibersek described as ‘not transparent or accountable’) and the release of monies is contingent on communities leasing their land back. Yet this is the housing policy to which Macklin has adhered as part of the Northern Territory intervention.

There is more than just ideology at play, however. Fundamental practical questions have been asked, since the $680 million housing program in the Northern Territory did not deliver one new house in the space of 18 months. The 2010 budget papers reveal that seven houses were finally built under the program after two years. Warlpiri Elder, Harry Nelson Jakamarra, had this to say on the matter: ‘The Intervention housing program has not built any new houses at Yuendumu. We are just being blackmailed. If we don’t hand over our land we can’t get houses maintained, or any new houses built. We have never given away any Warlpiri land and we are not going to start now.’ 14

Ampilatwatja is a town three hours from Alice Springs. It was taken over with a five-year lease that came with the promise of new housing. The housing stock was transferred to Northern Territory Housing. No new houses were built and much needed repairs did not take place. By July 2009, the town was overflowing with raw sewerage. A plumber was supposed to be on his way but his truck broke down, or so the community was told. They packed up and moved to a camp six kilometres from the town, symbolically taking them outside of the prescribed areas of the intervention.

Idea #2 – Removing punitive welfare conditions

The embrace of income management policies is another example of how the continuation of conservative ideological dogma runs contrary to evidence-based public policy. For instance, the quarantining of welfare payments was included as part of the intervention with the seductive rhetoric that it would be linked to school attendance. This played well with an electorate who probably assumed that low attendance rates and poor educational outcomes for Aboriginal children were caused by the poor parenting of their parents. Yet there is evidence that shows that poor educational outcomes for Aboriginal children are explained by other factors.

An evaluated trial of a scheme linking welfare payments to school attendance in Halls Creek found that the attitudes of parents of Aboriginal children were only one of the factors that affected school attendance. It pointed to the central role of quality teaching and general school culture plays in the attendance and performance of Aboriginal children. It also found that the housing situation in Halls Creek – where overcrowding is a critical problem – is unlikely to provide an environment where families can be ‘school ready’. 15

There is simply no evidence that shows that linking welfare to behavioural change is effective. In fact, there is evidence that suggests the very opposite: the imposition of such punitive measures in an already dysfunctional situation will exacerbate the stress on households. 16 The goal of improved attendance may be better achieved by the introduction of breakfast and lunch programs; programs that bring the Aboriginal community, especially Elders, into the schools; Aboriginal teacher’s aides and Aboriginal teachers; curriculum that engages Aboriginal children; and programs that blend the development self-esteem and confidence through engaging with culture with programs that focus on academic excellence.

These effective programs and strategies show the importance of building a relationship of trust between Aboriginal families and the school in order to target attendance and performance. These factors come from a range of successful community-school driven projects including Augusta Primary School in South Australia, Cairns West State School in Queensland, Darlington Public School in New South Wales, the Deadly Ways to Learn project in Western Australia, the Ganai project in Victoria, the Merredin Senior High School in Western Australia, Narrabundah Primary School in the ACT, Nidia Noongar Boodjar Noonook Nyininy materials, the “Road Open: The Kimberley” interactive DVD, the Rosetta Primary School in Tasmania and Yarrabah State School in Queensland.

All of this suggests that, rather than simply punishing parents for their children’s non-attendance, the government should be providing schools and teachers that meet the needs of the Aboriginal community.

It cost $88 million to make the initial administrative changes in Centrelink to facilitate the welfare quarantining yet not one additional dollar was spent in the first wave of the intervention on any of the types of programs that have been proven to engage Aboriginal children in schools.

Further, COAG evaluation data showed that the Northern Territory was spending 47c on the education of an Aboriginal child for every $1 spent on the education of a non-Aboriginal child. Many Aboriginal communities in the Northern Territory do not have enough teachers, classrooms or desks to accommodate all the children that reside in the community.

A punitive measure placed on families to ensure their children come to school is hypocritical from any government that neglects the same children by failing to provide adequate funding for a teacher and a classroom. Even if it did work to physically bring more children into a classroom, how can a quality education be received if there has been under investment in teachers and educational infrastructure to begin with?

Quick wins: Three fixes in three minutes

Combining pragmatic politics and progressive policies

There have been claims that plenty of money has been spent on Aboriginal and Torres Strait Islander people with little impact. Here are three targeted policy initiatives that would give guaranteed good results.

Quick win #1 – Adequately fund Aboriginal legal services to meet the needs of their clients

Aboriginal legal services have been underfunded for over 15 years. The Rudd-Gillard government delivered a one-off funding boost to the community legal services sector but Aboriginal legal services are still funded less per case than mainstream community legal services. This significantly hinders the capacity of the Aboriginal legal services to meet the needs of Aboriginal people going before the courts and adds to the higher levels of incarceration, particularly as a result of the refusal of bail.

Quick win #2 – Invest in diversionary programs

Despite the findings and recommendations of the Royal Commission into Aboriginal Deaths in Custody, incarceration rates of Aboriginal people continue to rise, particularly for Aboriginal women and juveniles. Diversionary programs, particularly those working with young offenders, have been effective in reducing the re-offending rates. These programs – such as circle sentencing – have been trialled but resources have not been allocated to ensure that they can be rolled out in the communities that need them the most.

Quick win #3 – Support community controlled Aboriginal health services

Like the Aboriginal legal services, Aboriginal health services have been underfunded, making it difficult for them to meet the needs of their client base. 17 While there has been a push towards mainstreaming of Aboriginal health provision, there remains a strong case for Aboriginal health services. The health needs of Aboriginal people are distinctive and complex and services that target those specific needs are far more likely to be effective. 18

Aboriginal people still show reluctance to use mainstream services, believing they are more likely to be discriminated against.

So crazy it just might work…

Engage with Indigenous communities and commit to building their capacity

Policy makers continue to overlook and dismiss the knowledge that Aboriginal people have about solving their own problems. The research in Australia and in Indigenous communities in North America shows consistently that the best way to lessen the disparity between Indigenous and non-Indigenous people is to include Indigenous people in the development of policy and the design and delivery of programs into their communities. Apart from sounding like common sense, the research shows that this engagement assists in ensuring the appropriateness and effectiveness of those policies and programs, as well as community engagement with them, and therefore greatly increases their success.

This level of engagement requires investment in building the capacity of Indigenous people and their communities. This means a commitment to something that policy makers often overlook: the need to invest in human capital. If participation by Indigenous people is a central factor in creating better policy, program and service delivery outcomes, there needs to be more effort to build up the capacity for that kind of engagement. This would include:

  • rebuilding an interface between the government and the Aboriginal community through representative structures so that governments can more effectively consult with and work with Aboriginal people.
  • focusing on the provision of training and education in ways that improve the capacity of Aboriginal communities. This means moving away from simple solutions like simply removing children into boarding schools and instead looking at a range of strategies that build the skill sets and capacities of adults as well as younger people who need to retain contact with their families if they do leave for better schooling opportunities;
  • increasing the number of Aboriginal people in the public service and who are engaged with developing and delivering Aboriginal policies and programs; and,
  • looking at flexible employment arrangements such as work-for-the-dole schemes that understand that in many Indigenous communities there is no viable workforce or there are barriers to entering the workforce. Such schemes can assist with the provision of services and infrastructure in the community at the same time as they build capacity and skills within the community itself.


While the apology was a significant symbolic shift in the national dialogue between Indigenous and non-Indigenous Australians, the policy shift between the Howard Government and the Rudd-Gillard Government was less discernable. Key policy initiatives and ideological assumptions, particularly those that formed part of the Northern Territory intervention, continued despite a change of government. Under Labor, the quarantining of welfare payments and the requirement that Aboriginal communities lease back land in order to access housing money have been rolled out across the country, even though there is evidence of the failure of these policies to improve the conditions of Aboriginal people in the Northern Territory.

The ambition of ‘closing the gap’ is an admirable one and should be the key target for government policy. However, current policy approaches are running contrary to the evidence of what works in achieving better outcomes and the government continues to ignore the clear evidence of current policy failure. The poor results from current government policy are exacerbated by the fact that the Coalition shares the same ideological approach and has not questioned government failure in this area to the extent that it has in others. The losers in that have been Aboriginal people on the ground.

Indigenous policy needs a complete rethink. As Kevin Rudd said during his historic speech apologising to the stolen generations, we have to stop making the same mistakes that we made in the past. Fine rhetoric – but Indigenous communities now need that sentiment to guide policy makers.


  1. Department of Families and Housing, Community Services and Indigenous Affairs (2009) Closing the Gap in the Northern Territory Monitoring Report – July to December 2009. Available online:
  2. Australian Bureau of Statistics (2010) ‘The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples , 2010’, Cat. No. 4704.0. Available online:
  3. Ring, I. T. and Firman, D. (1998) ‘Reducing indigenous mortality in Australia: lessons from other countries’, Medical Journal of Australia, 169: 528-533. Available online:
  4. Australian Government (2010) Budget 2010-11. Available online:; See also
  5. McCarthy, M. (2010) ‘Budget 2010 Delivering now for Indigenous Territorians’. Available online:
  6. Aboriginal Affairs NSW (2010) Demographic profile of the Aboriginal population of NSW. Available online:
  7. Australian Bureau of Statistics (2006) ‘Population Distribution, Aboriginal and Torres Strait Islander Australians’, Cat. No. 4705.0. Available online:$File/47050_2006.pdf
  8. Behrendt, L. and McCausland, R. (2008) Welfare payments and school attendance: An analysis of experimental policy in Indigenous education, Jumbunna Indigenous House of Learning and the University of Technology Sydney. Available online:
  9. Senate Community Affairs Legislation Committee (2010) Official Committee Hansard (Budget Estimates), 4 June 2010. Available online:
  10. Australian Indigenous Doctors Association (2010) Health Impact Assessment of the Northern Territory Emergency Response. Available online:
  11. Menzies School of Health Research (2010) ‘Research’. Available online:
  12. Sunrise Health Service Aboriginal Corporation (2010) ‘Media Releases’. Available online:
  13. Plibersek, T. (2009) Speech by the Minister for Housing, Sydney Institute, 19 March 2009. Available online:’s%20Speech.pdf
  14. Behrendt, L. and Downs, R. (2010) ‘A sorry state of affairs’, ABC online – Your Voice. Available online:
  15. Behrendt, L. and McCausland, R., op. cit.
  16. Priest, T. and Cox, E. (2010) A response to the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill 2009: Why the proposed bill should be delayed, Jumbunna Indigenous House of Learning. Available online:
  17. Australian Medical Association (2010) ‘AMA calls for action on indigenous health’, Media Release. Available online:
  18. Russell, L. and Wenham, S. (2010) Closing the Gap on Indigenous Disadvantage: Progress towards this important goal, Menzies Centre for Health Policy. Available online:

AUTHORS(S): Larissa Behrendt

Sharing the luck

Work and care

1 Comment 08 July 2010

The slow road to a stronger Australian work and care regime

by Elizabeth Hill, Barbara Pocock and the Work + Family Policy Roundtable

The past three elections have seen work and family issues emerge as increasingly important areas of policy contest. Australian families are animated about the difficulties they face reconciling their work commitments with family responsibilities. Long working hours for some (mostly men), low-paid casual and part-time work for others (mostly women), combined with a lack of access to affordable high quality childcare makes for anxious parents and much hand wringing around Australia’s kitchen tables. Work/life issues have become a ‘barbecue-stopper’– as John Howard termed these issues in 2001. As political pressure has grown, there have been important changes made to work and family policy in recent years. But the issue has not diminished in importance and many areas of public policy require urgent attention if we are to develop a truly equitable work/care regime that is a good fit with the changing nature of work and family in Australia.

Australia requires a robust work/care regime. In the lead up to the 2010 federal election the Work + Family Policy Roundtable 1 has identified some of the pathways that will lead Australia towards a better, more supportive work/care regime. As in the 2007 election, in 2010 the Roundtable published a set of Election Benchmarks against which assessments of election policy proposals could be measured. 2 In 2010, our priorities for discussion and policy development include: more accessible, affordable, quality childcare; flexible working policies to better support carers; improvements in paid parental leave; fair work, fair workplaces and gender pay equity; workforce participation and the tax transfer system, and; superannuation and retirement earnings.

More accessible, affordable, quality childcare

Childcare was a hot political issue in the lead up to the 2007 federal election and is a policy area that has seen much activity. Since then, the Rudd-Gillard Labor Government increased the childcare rebate paid to parents to 50 per cent of out-of-pocket expenses up to an annual cap of $7,500 per child, promised to build 260 new childcare places on school and community land, and committed to delivering 15 hours of free pre-school to all Australian four year olds by 2013. Not all has been delivered. Only 38 new childcare centres were built before the plan was abandoned; the cost of childcare has continued to increase, largely in line with the rebate3; the shortfall in childcare places for 0-2 year olds is an ongoing issue; and parents in the main cities continue to report very long waiting times for appropriate and accessible childcare. The demise of ABC Learning (Australia’s biggest private provider of commercial childcare), its transfer to a non-profit consortium that took control of 570 centres, and the closure or sale of the remaining centres, caused havoc for many families and showed that for-profit childcare was prone to market failure, just as many had predicted.4

While not all policy activity on the childcare front has been positive, childcare has become an important feature of the political and policy agenda. A long term commitment to delivering high quality childcare is reflected in the National Quality Framework for Early Childhood Education and Care (ECEC) due to be progressively implemented from July 1st 2010. The framework agenda aims to improve the quality of the 0-6 years experience by:

  • improving the training level of ECEC teachers and staff
  • providing the first national curriculum framework for early learning
  • improving staff to child ratios, and
  • consolidating quality measures and regulation across the country.

Low staff-to-child ratios are a critical determinant of high quality care and there is an urgent need to deliver this improvement to Australian children and parents. Ratios of 1:3 for 0-2 year olds; 1:6 for 2-3 years; and, 1:10 for 3-5 years are recommended. But lower ratios are not easily delivered and will require extra funding to employ more teachers. Higher demand for early childhood teachers will also be driven by the government’s goal to provide 15 hours of preschool per week to all Australian four year olds, delivered by a four-year trained university teacher in an accredited pre-school centre by 2013.

Attracting and retaining sufficient trained teachers is expected to be difficult unless significant improvements in the work conditions (especially pay) and training levels of ECEC teachers are made. As most early childhood teachers are now also qualified for primary schools, it is difficult to attract them to lower pay and longer hours in early childhood centres. Low wages and insufficient training for most other ECEC staff make employment in the sector unattractive and unsustainable for many. University level trained teachers should be used across the services, not only for the four-five year olds. However, this would also raise costs and require higher subsidies to keep services affordable. Employment of more trained teachers across the ECEC sector is important, along with appropriate training and skill development and recognition in the sector more broadly.

Policy Challenge #1: Attracting, training and retaining Early Childhood teachers

  • ECEC teachers must be remunerated at the same level as their colleagues in the mainstream primary school sector
  • Reducing HECS for ECEC teacher training students and those upgrading from a three to four year degree could help to make ECEC training a more attractive option
  • Higher wages, better work conditions and training will together enhance the status of ECEC workers, their longevity in the sector and the quality of care they are able to offer

Affordability of childcare remains a vexed issue. The 50 per cent childcare rebate is politically popular and initially made formal centre-based childcare more affordable for parents. However funding support made via cash payments to parents has a number of limitations. First the payment is not linked to the delivery of high quality care, raising a question about appropriate use of public money. More importantly, payments made to parents are likely to reduce the cost of childcare only in the short term. Over the longer term, centres are easily able to raise their daily fee to ‘absorb’ the government subsidy, ultimately pushing prices up. A better approach to improving affordability and quality would be for government support to be paid directly to childcare centres that meet quality benchmarks and other conditions. It should also be combined with the child care subsidy.

Policy Challenge #2: Change the rebate

  • Government payments should be made directly to centres that meet quality benchmarks and other conditions, and not parents. This will support improved availability of affordable, high quality childcare and break the rebate-fee rise cycle. The payments should be combined with the current fee relief payments for simplicity and equity

Flexible working policies to better support carers

A growing body of international research shows how policies that give workers more say over their working time arrangements to accommodate their care responsibilities improve the well-being of workers and their households. Such policies are often best made available to all workers – men and women, young and old, those with and without current care responsibilities – because they increase workers’ general acceptance of such arrangements, enhance gender equality and facilitate a life course approach to workplace policies.5

Since 2007 there have been significant improvements in the support for Australian working carers that are available to men as well as women, including:

(1)   the right to request flexible working arrangements as a National Employment Standard (NES) in the Fair Work Act 2009 (from January 2010)

(2)    a new duty on employers to reasonably accommodate the parental and carer responsibilities of a wide range of workers (2008 amendments to the Victorian Equal Opportunity Act 1995). The federal government also recently announced it will amend the Sex Discrimination Act 1984 to extend protection against discrimination on the grounds of family responsibilities to men as well as women as well as provide improved protection to carers against unfair treatment as well as dismissal.

These changes will improve the work/care regime for working parents. However, some significant gaps remain and some new problems have emerged. The new ‘right to request’ is far more limited than similar provisions in the UK or New Zealand because there is no meaningful review of employer refusals to grant requests, and eligibility is limited to parents of pre-school children who have 12 months service. International evidence suggests that the right can be extended without difficulties for business. Indeed the UK government has recently announced it will extend this right to all employees as is the case in the Netherlands and Germany. Extending the right to all employees has benefits: it is simpler for employers to manage, and it can encourage innovation in work organisation and increase workplace acceptance that men as well as women need to be supported to be working carers.6

In Australia there is strong evidence that flexibility for some workers is decreasing and for most not increasing.7 Casual and part-time workers and workers in regional areas have limited access to flexible working arrangements8 and where they do, carers often achieve flexibility by accepting poorer working conditions and worse work/life outcomes.9 There is growing concern that the individual flexibility agreements (IFAs) that must be inserted in all new awards and enterprise agreements may exaggerate this trend.10 For example, employees may have to give up their entitlement to penalty rates or shift to casual work in order to be able to work the schedules they need to accommodate their caring responsibilities.11

Policy Challenge #3: Flexibility for all

  • The current right to request flexible working arrangements should be extended in a timely manner to include all carers of children and adults and ultimately all employees in line with international best practise (Netherlands, Germany, UK, New Zealand)
  • If an employer refuses to grant a request for flexible working arrangements, there should be a robust and transparent system of review. This should be through normal workplace grievance mechanisms covering other National Employment Standards. A refusal should only be allowed where it is reasonable, based on balancing the needs of the employee and employer
  • To increase access to flexible working arrangements for part-time and casual workers, potentially discriminatory provisions such as ‘preferred hours’ clauses should be expressly prohibited in individual flexibility agreements (IFAs). IFAs should be lodged with the Fair Work Ombudsman for specific scrutiny, and audited as part of regular industry and sector audits

In Australia, many new mothers switch to part-time work as a specific strategy to reconcile work and care. However part-time work is often of a lower quality than regular full-time employment in terms of award protection and career development opportunities. Some modern awards discriminate against those who work on a less than full-time basis and many workers find themselves sidelined from promotion opportunities and other benefits. Reducing the distinction between the status of part-and full-time jobs should be made a work-family policy target, in particular by prohibiting discrimination on the basis of hours worked to protect those working less than full-time. Policy developments in this area would be facilitated by Australia ratifying ILO Convention 175 on part-time work.

Policy Challenge #4: Protecting part-time workers

To better protect part-time workers, Australia should:

  • narrow the quality gap between part- and full-time jobs
  • prohibit discrimination on the basis of hours worked

Paid parental leave

Government legislation passed in June 2010 provides for 18 weeks of paid parental leave at the weekly minimum wage. This is an historic first step which provides Australian working parents, particularly women, with a work-related payment that acknowledges their contribution to the workforce. At present, it is estimated that only a third of Australian working mothers have actually taken some paid maternity leave12 and just under half of all working women have access to paid maternity leave.13  Most of these women are in higher status jobs, in the public sector or work in larger firms and in most cases have access to a period of paid leave less than that recommended by the World Health Organisation (16 weeks) or the International Labour Organisation (18 weeks). The new paid parental leave legislation will provide significant improvement to the financial circumstances of most working mothers – particularly those in low-income households and who work for small business who had little or no entitlement to leave with pay. Those with existing entitlements will retain them and be entitled to more. There is, however, more that needs to be done.

The next federal government must establish medium and longer term goals to increase the period of parental leave and the level of payment in line with international best practice. Paid maternity and parental leave for six months or more is common in Europe. In the UK, nine-months is now the statutory minimum. A longer period of paid leave for Australian parents will promote maternal and infant well-being and women’s labour force attachment.14

A good paid parental leave system will include an independent entitlement for fathers (supporting carers) to increase their opportunity for taking leave. The payment level must also be enhanced where the minimum wage is less than current earnings, to approach earnings replacement levels – as is the case for personal and annual leave. This will deliver economic security to households and promote gender equality between men and women at all earnings levels.

Policy Challenge #5: Next steps for parental leave

  • The paid parental leave scheme should be extended to provide 26 weeks leave in the near future, with 52 weeks as a longer term goal
  • When paid parental leave is increased, two weeks supporting carer leave should be introduced on a ‘use it or lose it’ basis to encourage fathers’ participation in caring
  • Payment rates for higher income women on maternity leave should be increased to full wage replacement wages, as is the case for personal and annual leave
  • Payment of the superannuation guarantee during unpaid parental leave is an urgent goal
  • Auditing and enforcement is needed to make the return to work guarantee a reality

Fair work, fair workplaces and gender pay equity

The Fair Work Act 2009 introduced a number of provisions with the potential to progress the position of women and all carers in the workforce. Legislative change under the Act removed Australian Workplace Agreements, strengthened the safety net and work and family provisions, prioritised collective over individual bargaining, expanded equal remuneration provisions and increased anti-discrimination regulation. Each of these changes has the potential to improve women’s pay and conditions directly or indirectly.

Gender inequity remains a serious problem in Australian workplaces. Since February 2007 the gender pay gap has widened by 1.6 percentage points to 82.6 per cent (for full-time ordinary-time earnings), largely as a result of deterioration in the relative pay of women in private sector employment. There is also growing evidence of a much larger gender pay gap at the upper level of the pay scale.15

The Making it Fair report released in November 200916 provides a very comprehensive set of pro-active recommendations to improve pay equity and should be used as a guide for government to improve the status of women in the labour market. These could be strengthened by making gender pay equity an explicit objective of the Fair Work Act 2009. The impact of the recommendations on women’s relative wages must be monitored, with special attention paid to the process of award modernisation, implementation of individual flexibility clauses, multi-employer bargaining in the low paid stream, and equal remuneration provisions. Pay equity must also be considered in enterprise bargaining negotiations and minimum wage adjustments. Establishment of a specialist Pay Equity Unit would assist in the coordination, development and implementation of strategies to address gender pay inequity.

Policy Challenge #6: Gender pay equity

The government must:

  • act promptly on the recommendations in the House Standing Committee’s 2009 Making it Fair report
  • make gender pay equity an explicit objective of the Fair Work Act 2009
  • establish a specialist Pay Equity Unit to monitor progress and champion strategies to address inequity

The introduction of greater anti-discrimination protections in the Fair Work Act 2009 (Cth) will protect workers against adverse action in all stages of employment and not only termination. In addition, the extension of anti-discrimination law across the employment cycle is specifically strengthened for workers with caring responsibilities by the Government’s recent announcement that it will extend protections in the Sex Discrimination Act 1984 (Cth) to cover both direct and indirect discrimination on the grounds of family responsibilities across all stages of work, not only dismissal. This is good news for working carers. However, vigilance is required. In the process of streamlining federal anti-discrimination laws and harmonising federal and state laws, these and other protections provided to workers with caring responsibilities must not be diminished. ‘Best practice’ federal laws must be used as the model in the streamlining process and employers must be required to provide ‘reasonable accommodation’ to all protected groups. In harmonising federal and state anti-discrimination laws, the Victorian Equal Opportunity Act 2010 should be used as the best practice model, imposing a positive obligation on employers to take ‘reasonable and proportionate’ measures to eliminate discrimination, sexual harassment and victimisation.

Policy Challenge #7: End discrimination on the grounds of family responsibilities

The government should immediately implement its plan to extend family-responsibilities protections in the Sex Discrimination Act 1984 to cover both direct and indirect discrimination, across all stages of employment.

The Victorian Equal Opportunity Act 2010 should be used as the best practice model, imposing a positive obligation on employers to take ‘reasonable and proportionate’ measures to eliminate discrimination, sexual harassment and victimisation.

Workforce participation and the tax transfer system

Income support and tax/transfer policies play an important role in shaping work and care patterns.  The penalties and rewards embedded in the tax/transfer system influence the choices households make about who works and who cares. OECD analysis points to the importance of appropriate family tax policy to achieving higher female participation.17

Current arrangements in Australia distort and depress female participation in paid work. This is partly due to the way in which Australia’s progressive individual tax system has effectively become a system of joint taxation that discriminates against partnered women with children who choose to move between care and paid employment. When women re-enter the workforce, family benefits decrease, imposing a high effective marginal tax rate (EMTR) on women as family benefits are withdrawn against both increases in total household income and the income of the second earner. This creates a disincentive for women to undertake paid work, and is acknowledged as a fundamental problem by the recent Henry Tax Review.18 Changes to the design of some payments and taxes, as recommended by the Henry Tax Review, would remove many of the disincentives to women’s workforce participation currently embedded in the tax/transfer regime. The Henry Review recommends simplification of family payments and a reduction in the withdrawal of family assistance at a single low withdrawal rate of 15–20 per cent. Any redesign of the tax/transfer system must recognise and respect most families’ needs for financial support for both the direct costs of children and the costs of reduced access to paid work.

Policy Challenge #8: Tax reform to remove disincentives to women working

Implement Henry Tax Review recommendations for a single family payment (recommendation 90); withdrawal of family assistance at a single low withdrawal rate of 15–20 per cent to minimise workforce disincentives (recommendation 96); and simplification of childcare support payments (recommendation 99).

Superannuation and retirement earnings

Women who undertake significant periods of unpaid work have fewer years of full-time workforce participation, earn lower wages than men and as a result have relatively low superannuation accumulations. An indicative comparison suggests that women’s accumulated superannuation in 2007 was worth approximately 60 per cent of men’s. 19 Approximately one third of women aged 55-64 years have no superannuation coverage.20

Inequality is further embedded through the application of concessional taxation arrangements on superannuation contributions and earnings – valued at approximately $24 billion for 2008-09.21]The benefits of these concessions are skewed strongly to favour those on high incomes (typically men) who receive higher employer contributions and can make additional personal contributions that are taxed below their marginal income tax rate.  The Henry Tax Review noted that approximately 1.2 million individuals did not receive an income tax benefit from their concessional superannuation contributions; 1.2 million people receive a concession of only 1.5 percentage points and around 200,000 taxpayers earning more than $180,000 received a concession on their superannuation contributions of 31.5 per cent. 22 Interaction between women’s labour force participation, their care responsibilities and the existing structure of superannuation clearly penalises women and leaves many economically vulnerable in old age.

Recommendations made earlier in this chapter that relate to income replacement for paid maternity leave, pay equity, affordable childcare, taxation, and transfers will together contribute to creating a fairer workplace for women and more equitable retirement outcomes for all. However, specific changes to the superannuation system must also be made. The following measures would go some way toward promoting improved economic security for women in retirement.

Policy Challenge #9: Redress women’s superannuation disadvantage

  • The Henry Tax Review Recommendation (number 18) on concessional taxation of superannuation should be introduced to ensure equitable distribution of taxation expenditures among low- and high-income earners
  • This should occur alongside the complementary measures suggested in Recommendation 19 which addresses taxation on superannuation fund earnings
  • The rate of the age pension should also be maintained to reflect current relativities to average earnings
  • Recipients of the single age pension who have an earnings history that precluded them from receiving income tax benefits on superannuation contributions and have superannuation balances of less than $10,000 should receive a retirement top up payment to supplement the age pension


Australia’s work and family arrangements have improved in some ways in recent years but we have a long way to go. The pace of change in patterns of workforce participation and household shape make a faster and comprehensive response to the current work/care regime a pressing policy issue. Evaluation of change in Australia, including changes to labour regulation, along with careful consideration of lessons that arise from international experience must inform progress in this area. Hopefully the newly-elected Gillard minority Government will recognise the ways in which current arrangements add to the stress of working men and women and their dependents, and accordingly recognising the need to rise to these policy challenges.

Photo Credit: Big Grey Mare,


  1. Australian Work + Family Policy Roundtable (W+FPR) (2010). The policy ideas outlined in this chapter are informed by Australian and international research and have been developed by the Australian Work + Family Policy Roundtable (W+FPR), a network of researchers – convened jointly by Elizabeth Hill and Barbara Pocock – across a dozen Australian universities. Members of the Roundtable are active researchers in the field of work and family and make regular contributions to public debate based on their research. Since 2004 the W+FPR has proposed, commented upon, collected and disseminated relevant policy research in an effort to inform good, evidence-based public policy development in Australia. See for details of Roundtable activities.
  2. Work + Family Policy Roundtable (2010) Benchmarks for Work and Family Policy, Election 2010. Available online:
  3. Butcher, B.S. and Stebbing, A. (2010) ‘Getting Value for Public Money’, Centre for Policy Development. Available online at:
  4. Brennan, D. (2007) ‘Home and Away: the policy context in Australia’, in Hill, E., Pocock, B. and Elliot, A. (eds) Kids Count: Better early education and care in Australia, Sydney, Sydney University Press, pp. 57-74.
  5. Fagan, C. et al. (2006) Out of Time: Why Britain needs a new approach to working-time flexibility, London, Trades Union Congress.
  6. . Fagan, C. et al., op. cit.; Himmelweit, S. (2007) ‘The Right to Request Flexible Working: a ‘very British’ approach to gender (in)equality?’, Australian Bulletin of Labour, 33: 246.
  7. Australian Bureau of Statistics (2010) ‘Working Time Arrangements, Australia – November 2009’, Cat. No. 6342.0. Available online:
  8. Haynes, K. et al. (2010) A regional perspective on work, family and community balance in Victoria: Preliminary results of the VicWAL survey, RMIT University, Centre for Applied Research. Available online:
  9. Pocock, B., Skinner, N. and Ichii, R. (2009) Work, Life and Workplace Flexibility, Adelaide, Centre for Work + Life, University of South Australia.
  10. Buchanan, J. and van Wanrooy, B. (2009) ‘Employment law reform and social inclusion: If the social inclusion agenda was in the Fair Work Act, where would it be?’, Discussion Paper No. 2 Social Justice Discussion Papers, University of Melbourne.
  11. Workplace Express (2010) ‘Flexible working arrangements “best achieved” by going casual at Vodafone Hutchison Australia’, 6 July 2010. Available online:
  12. Whitehouse, G., Baird, M., Diamond, C., and Hosking, A. (2006) The Parental Leave in Australia Survey: November 2006 Report. Available online:
  13. Australian Bureau of Statistics (2010) ‘Forms of Employment, Australia – November 2009, Cat. No. 6359.0. Available online:
  14. Gregg, P., and Waldfogel, J. (2005) ‘Symposium on parental leave, early maternal employment and child outcomes: Introduction’, The Economic Journal, 115: F1–F6.
  15. See Watson, I. (2009) ‘The gender wage gap within the managerial workforce: an investigation using Australian panel data’ presented at the 2009 HILDA Survey Research Conference, The University of Melbourne, 17 July 2009; AusIMM (2009) The AusIMM 2009 Remuneration and Employment Survey Report; and, Cassells, R., Vidyattama, Y., Miranti, R. and McNamara, J. (2009) The impact of a sustained gender wage gap on the Australian economy, Report to the Office for Women, Department of Families, Community Services, Housing and Indigenous Affairs. Available online:
  16. Parliament of Australia (2009) Making it Fair: Pay equity and associated issues related to increasing female participation in the workforce, Report by the House Standing Committee on Employment and Workplace Relations, Department of the House of Representatives, Canberra. Available online:
  17. Jaumotte, F. (2004). Female Labour Force Participation: Past Trends and Main Determinants in OECD Countries, Geneva, OECD Economics Department.
  18. Department of Treasury (2010) Australia’s Future Tax System: Final Report , Part 1, Available online:
  19. Australian Bureau of Statistics (2009) ‘Employment Arrangements, Retirement and Superannuation Australia’, April to July 2007 (Reissue), Cat. No. 6361.0, Table 26. Available online:
  20. ibid, Table 19.
  21. Department of Treasury (2010) 2009 Tax Expenditures Statement, Canberra, Table D1, p.240. Available online:
  22. Department of Treasury (2010) Australia’s Future Tax System: Final Report, Part 2, p.98. Available online:

AUTHORS(S): Barbara Pocock and Elizabeth Hill

Sharing the luck

It takes a bleeding heart to see the bleedin’ obvious

5 Comments 05 July 2010

from Tim Bennett at electron soup

It takes a bleeding heart to see the bleedin’ obvious: Asylum seeker policy reform

By Kate Gauthier

Most policy reformers, especially social policy reformers, like to tell governments where they should spend more money. But when it comes to asylum seeker policy, reform advocates are not asking the government to spend more money; we are begging them to spend less.

It would be hard to find another area in which more money is thrown away on policies that prove completely ineffective, are extremely expensive, breach both international and domestic law, and inflict further damage on people who have fled persecution, torture and trauma.

Although onshore asylum seekers (people requesting asylum after they arrive in Australia) make up a much smaller number of entrants to Australia than our offshore refugee and humanitarian program, they dominate media and public interest. Australia granted a total of 13,507 refugee and humanitarian visas in 2008-09. Of these, onshore protection visa grants were only 2,378, or 17 per cent1 and less than half of these came by boat. The majority of our onshore asylum seekers actually arrives by plane2 and live freely in the Australian community without generating scathing opinion pieces.

In the current financial year (2009-10), asylum seekers who have arrived by boat and received permanent protection will make up less than one per cent of the migration program (around 225,000 in 2008-09). 3

Why then is so much money spent on so few? And why do we have a bipartisan approach to ‘getting tough’ on the victims of persecution, that sees the ALP and the Coalition engaged in a policy war of attrition, with asylum seekers as the collateral damage?

Unfortunately, this is an area of policy that, more than any other, is not developed in the halls of government but on the airwaves of talkback radio and in newspaper opinion pages. This leaves both sides of politics forced to peddle policies which, in their heart of hearts, they know are both cruel4 and destined to fail.

Push-me pull-you

Before looking at suggestions for policy change, it is important to address the myths and facts of push-pull factors affecting asylum numbers, upon which most policies are based.

There has been no proper analysis of any impact that domestic policy changes have had on asylum flows to Australia. Claims that Howard era deterrent policies ‘stopped the boats’ by reducing pull factors to Australia is sloppy policy evaluation at its worst, using only a temporal link to prove cause and effect. Claims that only push factors, such as in-country security concerns, have increased boat arrivals have no basis in proper research either. Without proper research and analysis, it is impossible to say definitively if Australia’s varying numbers are caused by normal changes in global asylum flows, statistical blips or domestic policy.

However, a cursory study of the statistics can give some ideas as to cause. As this first graph

5 shows, Australia’s varying asylum numbers have largely followed global trends over the years. Some small variation exists which is claimed by some to be caused by domestic policy changes.

Since there are similar ebbs and flows for plane arrival asylum seekers as boat arrivals, as shown by the second graph, the statistical analysis implies that domestic policy focused on boat arrivals has, at best, only a marginal impact on numbers. Given the costs of those policies – financial and human – was it really worth over $1 billion to process a mere 1,700 asylum seekers under the Pacific Solution? 6

Source: OECD International Migration Outlook 2010, and Department of Immigration and Citizenship figures.

The story so far

Boat arrivals: the ‘Indian Ocean solution’

The Howard Government’s split-personality approach to asylum seekers arriving by boat versus plane has continued under the Rudd and Gillard Labor Governments. All boat arrivals are taken to Christmas Island, dubbed by many as the Indian Ocean Solution. Although conditions and their treatment are a vast improvement on Howard’s Pacific Solution in Nauru and Papua New Guinea, the policy still entails breaches of international human rights instruments. Boat arrival asylum seekers are given a truncated protection assessment process compared with plane arrivals processed on the mainland – they do not have access to the standard merits review or any judicial review.7  This reduced investigation of claims will inevitably result in refoulement, the return of refugees to danger.

In theory, the 2008 reforms made to detention policy – changing Howard’s mandatory prolonged detention regime into a risk-based community detention system – should also apply to asylum seekers on Christmas Island. In reality they cannot, because there simply is not enough community infrastructure available on the island to accommodate the release of people who do not pose a health, security or compliance risk.8

Single men remain in detention until they are either granted a protection visa, or are moved to the mainland in order to facilitate a removal from Australia. There is no risk-based community detention for them.

Women and children

The matter of women and children is also problematic. They are generally kept in the ‘construction camp’ on the island, with far less security. However, it is not community-based accommodation by any means. With overwhelming numbers of children, there is not enough space on Christmas Island to accommodate them. The Government has moved groups onto mainland Australia into different locations. As of 21 May 2010 there were a total of 452 children in detention9 with only nine in community detention. The Government has kept them under guard in hotels and in remote outback towns. Again, for boat arrivals, there is no such thing as risk-based detention with community release for those deemed not to pose security, health or compliance risks.

The problem is that the Rudd and now Gillard Governments have the same view as the Howard Government, that Australia’s boundaries should be drawn differently for asylum seekers. Unless asylum seekers reach the mainland, they are still subject to excision laws, which grant them far fewer legal rights than asylum seekers processed on the mainland.

Where to from here? Recommendations for policy reform

There are two areas of asylum seeker policy: the international and the domestic. Each area has different policy objectives and possible outcomes. The first area deals with the breakdown in the international system of refugee protection that causes asylum seeking. The policy objective in this area should be to provide better refugee protection with an additional outcome being a reduction in the flow of asylum seekers to Australia.

The second area, domestic policy, deals with what we do with the asylum seekers themselves when they reach Australia. Policy objectives should be to create a cost-effective and humane system that quickly and fairly determines who is owed protection under international human rights instruments, and does so in a manner that protects the Australian community from any security or health threats. Using domestic policy to stop asylum flows is unrealistic and immoral. To stop asylum seeking, the Australian system would have to be worse than the places that people are fleeing – worse than extra-judicial killings, torture and persecution. And to attempt to influence the behaviours of other asylum seekers in third countries by punishing individual asylum seekers in Australia, who have committed no crime, is quite clearly immoral and in some cases a breach of our constitution.10

Asylum policy: Eight key steps for reform
  1. Set an example in our region by adopting best practice for asylum seeker and refugee protection.
  2. Encourage neighbouring countries to sign the Refugee Convention.
  3. Reduce the regional bottleneck with a short-term resettlement program.
  4. Use the same risk-based detention approach for all asylum seekers, whether they arrive by plane or boat.
  5. Create appropriate accommodation centres instead of high security detention centres and work with NGOs to establish community-based supported accommodation programs for those who are released into the community pending a visa outcome.
  6. Provide living assistance (funds) to those in the community awaiting a visa outcome.
  7. Expand programs such as the Community Assistance Support program to all vulnerable cases.
  8. End the use of Christmas Island and repeal the excision laws.

International policy: A breakdown in protection

While it is difficult for any single country to have a significant global impact on improving the system of refugee protection, Australia could certainly have a greater positive impact in our region.

Currently, Australia’s foreign policy focus is on the ‘evil trade’ of people smuggling and policies approach the issue as a criminal one. However, asylum seekers only exist where there is a lack of effective protection options. Removing people smugglers does not remove the core reason for the irregular movements of asylum seekers. The Government could make a long term impact on asylum flows in our region in three crucial ways:

1. Set an example by adhering to our human rights obligations

We cannot expect our neighbours to adhere to their human rights obligations when we attempt to deflect our own obligations onto other nations, by turning around boats at sea or sending asylum seekers to third countries for processing.

2. Encourage others to sign the Refugee Convention and assist them to comply

Using our significant diplomatic influence, combined with aid incentives, we could be doing much more to encourage nations in our region to become more involved in refugee protection. We need to provide funding and expertise to assist them to establish protection and settlement programs once they are signatories. We also need to take a proportion of our resettlement quota from this region, reassuring our neighbours that they would not carry the regional protection load alone.

3. Reduce the asylum bottleneck

In the short term, Australia should take some of the pressure off the asylum bottleneck in South East Asia by increased resettlement from the region. This could be done with very little disruption to the current migration program, by allocating some extra places over and above the annual 13,750 places in the offshore refugee and humanitarian program. This would reduce the attraction of boat journeys even for those not resettled immediately, as they would be able to see a realistic chance that they may be resettled eventually. According to the United Nations High Commission for Refugees (UNHCR), as at 30 April 2010 the Indonesian office of UNHCR had a caseload of 3,471 comprised of 2,705 asylum seekers and 766 refugees. The five year average for resettlement of refugees from Indonesia is a mere 82 people per year, which shows why many decide that ‘waiting patiently’ is not a good option.

Regional Processing Centre

On July 6th 2010, Prime Minister Gillard announced a new asylum seeker policy to establish a “regional processing centre (RPC) for the purpose of receiving and processing irregular entrants to the region.”11 The lack of details released makes it very difficult to make any in-depth assessment of the proposal. However, the key point that most media commentary missed was that the announcement also stated the RPC is just one initiative in a commitment “to the development of a sustainable, effective regional protection framework.”

If a protection framework is truly the approach, and if done correctly (and this is a very big if), this could be a leap forward to more effective regional cooperation leading to increased protection options for refugees and a reduction in asylum flows. In turn, that could lead to non-signatory countries such as Indonesia and Malaysia recognising that it would be in their best interests to sign the Refugee Convention and become part of a new cooperative regional approach to asylum. The greater sharing of resettlement in our region could then lead to an increase in public support domestically for Australia’s involvement in refugee protection.

However, if the focus of this policy is simply to reduce the domestic political problem of boat arrival refugees being granted protection in Australia, to move them offshore and out of the public eye, then this could lead to the warehousing of refugees in detention-like conditions and would be little better than the Pacific Solution. Any proposal that results in Australia shifting its responsibility elsewhere should be condemned. UNHCR has indicated this approach should complement, but not be a “substitute for a fully functioning, fair national assessment process.”12 The RPC should only be used as a preventative measure. Once asylum-seekers reach Australia, we have an obligation to process their claims and ensure that they are granted protection in a timely manner.

Three key areas need to be included in any RPC approach:

  • Accommodation: asylum seekers must not be detained, and the alternatives may create difficulties with local populations in poorer nations. Who will manage accommodation centres and who will oversee them to ensure that human rights standards are maintained?
  • Asylum claims processing: under whose system of law will asylum seekers be processed? Refugee Convention signatory nations have an obligation to allow asylum seekers access to their domestic court system. To subvert this legal right, will Australia ask other nations to copy our excision laws, which are a breach of this provision within the Convention?
  • Resettlement: processing needs to be coupled with realistic timeframes for resettlement so people are not left in limbo for years with no real protection; the very reason for asylum flows in the first place.

This should not be seen as an easy or quick-fix solution. It will take some time to set up proper processes, external scrutiny and develop a framework for resettlement. We have seen a shaky start to the proposal. Australia should have started with a regional conversation, not a bilateral one with East Timor. In order to show we are serious, Australia should increase our resettlement places from 13,750 to 20,000, keeping a significant proportion aside for regional protection burden sharing arrangements.

Of course, to start such a program, we do not even need to build yet another expensive processing centre. We should start by taking people waiting in Indonesia, who otherwise will risk their lives on boats as the resettlement waiting time is currently far too long.

Domestic policy: Treatment of individual asylum seekers

Despite the recent announcement of a regional processing centre, this will not negate the need for domestic asylum policies. The majority of our asylum seekers actually arrives by plane and will not be affected by this policy, and the reduction of boat arrival asylum flows will not be immediate. Most importantly, a regional processing centre should not be a substitute for an Australian protection claims processing system, but should instead be a preventative program to reduce dangerous boat journeys.

There is no shortage of policy suggestions for the treatment of onshore asylum seekers. To make a good start we do not even need to write new policies, but to take current policies and practices used for plane arrivals and properly apply them to boat arrivals. Overall, we just need to change the way we spend money – which would result in spending much less – as all estimates for humane onshore reception programs are far cheaper than the policy of mandatory detention of all non-visa holders.13

A United Nations High Commission for Refugees (UNHCR) study on the international experience of alternatives to detention found that providing accommodation and material support during the asylum procedure was critical to ensuring compliance with the immigration process. The research found that alternatives to detention remain effective enforcement tools, while being more fiscally responsible than detention.14

4. Use the same risk-based detention approach for all asylum seekers: plane and boat arrivals

On July 29th 2008 Senator Chris Evans, Minister for Immigration, announced the New Directions in Detention policy.15 It changed the mandatory prolonged detention regime into a risk-based detention system. All unauthorised people would still be subject to mandatory detention in the first instance, but people would undergo health and security checks and a compliance assessment. Those deemed not to be a risk to the Australian community and not a flight risk would be released into the community under a variety of mechanisms with differing levels of security and monitoring.

The most humane and least expensive outcomes would flow from the simplest policy change: take the current risk-based policies and practices used for plane arrivals, and properly apply them to boat arrivals. If someone is not a health, security or absconding risk, why pay all that extra money to traumatise them in detention?

5. Create appropriate accommodation centres instead of high security detention centres and work with NGOs to establish community-based supported accommodation programs for those who are released into the community pending a visa outcome

Many studies have demonstrated the negative psychological impacts of detention on asylum seekers. In order for the 2005 (Howard Government) and 2008 (Rudd Government) reforms to be truly effective, the focus needs to be on creating flexible accommodation and reception programs. All arrivals require accommodation in the first instance while security, health or identity concerns are addressed, and more importantly, while their social service needs are assessed. However, high levels of security are unnecessary in the majority of cases while these checks are conducted. Unfortunately, the complete lack of flexible accommodation facilities has tied the hands of the Department of Immigration, which had nowhere else but detention to place vulnerable asylum seekers pending the outcomes of those checks.

6. Provide living assistance (funds) to those in the community awaiting a visa outcome

The Asylum Seeker Assistance Scheme16 and the Community Assistance Support program17 provide limited financial support to some asylum seekers living in the community. However, the eligibility guidelines restrict many from receiving any assistance, leaving people destitute. Hotham Mission recently found that many asylum seeking children were not housed or fed to standards required by international law.18  The Government must expand these programs to ensure that, at minimum, all people who are allowed to remain in Australia are adequately fed, housed and clothed.

7. Expand programs such as the Community Assistance Support program to all vulnerable cases

In 2005, John Howard pledged to remove children from behind the razor wire, writing into the Migration Act that “Children shall be detained as a measure of last resort.” The release of children and their families, combined with the scandals of Cornelia Rau, a mentally ill Australian resident who was detained, and Vivian Alvarez Solon, an Australian citizen who was deported, meant that new ways of case-managing and accommodating vulnerable people were developed, including finding alternative non-detention accommodation.

As part of this, then Immigration Minister Senator Vanstone began a trial of the Community Care Pilot, now the ongoing Community Assistance Support program. This pilot succeeded because it used a holistic case-management approach, while keeping people in the community instead of in detention centres. The idea was that if you treat people humanely and ensure all their health and living needs are met, this will have positive outcomes for their immigration case. They are better able to assist in their case (trauma has detrimental effects on memory) and are more compliant because they feel their case is being heard fully and fairly. According to workers at service delivery agencies, this pilot program led to far higher rates of uncontested and voluntary returns of failed visa applicants.19 Overall, this reduces the costs of litigation, detention, and expensive forced and chaperoned returns home.

8. End the use of Christmas Island and repeal the excision laws

This package of suggested policy changes would necessarily mean transferring all asylum seekers off Christmas Island, as there is a lack of alternative accommodation on the island to allow for the release of people (who do not pose any risk) from the high-security detention facility. The remoteness of Christmas Island also makes it impossible to deliver torture and trauma counseling services that are readily available on the mainland. The location vastly increases the costs of accommodating detainees while reducing the quality of services provided to them. Governments in recent years have been loath to provide per detainee per day breakdown of costs. The latest available figures put Christmas Island at $2,895 per detainee per day compared with Villawood in Sydney at $190 per detainee per day.20

Offshore detention and processing of asylum seekers is a breach of our international obligations under the Refugee Convention, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.21 But it is also bad policy from a purely rationalist perspective, as it does not achieve its goals. As outlined earlier, there is no evidence to show that punitive practices have any significant impact on asylum flows. If it does manage to reduce the acceptance rate of protection claims from excised compared to mainland-processed asylum seekers, then the excision system is set up for refoulement – the return of genuine refugees back to situations of danger.

The roadblocks

The media

The key roadblock to the adoption of these reforms is the current public and political environment. Since the boats started arriving again, there has been a media frenzy over the numbers, with the same kind of statistical obsession usually reserved for footy league tables, school rankings and Easter weekend road fatalities. The Coalition has jumped on the opportunity to reprise the 2001 election and talkback radio has once again put this issue on high rotation, probably increasing community fear and concern.

Illegal immigrants

Asylum seekers are often referred to as “illegals.” Under international and domestic law, it is not illegal to enter Australia without a visa for the purpose of seeking asylum. They have not broken any law at all. In fact, to be classified as a refugee you must be “outside your country of origin”22 which means that nearly every refugee must enter a country without a visa in order to reach UNHCR for processing.

Failure of Government to frame the debate

The Rudd Government missed an important opportunity to reframe the public debate about asylum seekers when it was elected in 2007. It could have generated public discussion that did not vilify individual asylum seekers or see small numbers of boat arrivals as a threat. This would have provided Rudd with public support for a more humane and evidence-based approach to policy reform. Instead, the Rudd Government continued to use the language and framing of the Howard Government, presenting asylum seekers as a border security issue, as an undesirable phenomenon, and as an international crime issue. By maintaining the negative view of asylum seekers while at the same time trying to be more compassionate in some policy reforms, the Rudd Government set itself up for failure. In essence, they have upheld the view that asylum seeking is a national security threat, but have softened policies believed by many Australians to stop it.

The Gillard Government is heading down the same path. Her first comments on the issue as Prime Minister were to attack the opposition’s “fear mongering”. However, she then followed by saying she would provide “strong management of our borders”,23 continuing to frame asylum seekers as a border protection threat. The problem with this approach is that Liberal policy makers will always be prepared to ‘out-tough’ any Labor asylum policies and thus appear more effective when the issue is framed as one of national security.

Removing the roadblocks

In order to address community fears and media misinformation on this issue, the Government should embark on a long-term education and information program. It needs to change the language, moving from the crime and punishment focus on people smugglers, to a solutions-based focus on the needs of people fleeing persecution. The Department of Immigration must be more proactive in providing briefing sessions for journalists and tackling incorrect news articles like the constant media use of “illegal” when referring to asylum seekers, when asylum seekers have broken no law. There should also be greater government support for NGOs and community groups who engage in providing the community with information on this issue.

There also needs to be more community information on the benefits that refugees bring to Australia. Many people argue that we have an international responsibility to protect refugees. That is true. There are also pragmatic reasons. Australia has a significant migration program and refugees make excellent migrants. This is partly because more than any other migrant group, they have a vested interest in making a go of it because they have no homes to return to if their settlement in Australia fails.

Australia has settled over 740,000 humanitarian entrants since federation. In that time, refugees have made significant social, civic and economic contributions to Australia. Five of Australia’s eight billionaire families in the 2000 Rich List came from refugee backgrounds.24

Moving forward

Successive Australian governments have viewed boat arrival asylum seeking as a problem which must be stopped, but none has ever given valid reasons for why they consider it a problem of such national importance, when asylum seekers come in such tiny numbers.  Unfortunately, there has been so much scaremongering on this issue that most policy makers have forgotten to see asylum seeking as it should be seen – a human rights protection issue, not a migration issue.

Fixing asylum seeker policy is far simpler than it appears and would save enormous amounts of money. However, until the framing of this issue is changed, those policy changes will never be made.

The approach for the past two decades has been punitive, punishing people for seeking protection. There is no clear evidence to suggest that those policies actually worked. In fact, new policies for community-based asylum seekers show that taking a more humane and constructive approach results in greater compliance with the system. We also know it costs a lot of money to be cruel. It is time to decide that the 20-year experiment in taking a penal approach to asylum has failed, and we must extend the risk-based detention approach across the whole asylum seeker regime, particularly for those detained on Christmas Island.

Many would describe that approach as a solution from the left of politics. But it is not a question of left or right; this issue breaks down the usual political divides. Petro Georgiou, Judy Moylan, Bruce Baird, Nick Greiner, John Hewson and Malcolm Fraser have shown that courageous moral action on social justice issues is not just the provenance of the ‘left’ parties. And Julia Gillard, herself from Labor left, has shown that unsympathetic attitudes to asylum seekers is not confined to the conservative right.

There is much electoral advantage to be gained in this area of policy. So much so that good evidence-based policy can be ignored, and brutal but ineffective policy adopted, in the hope of gaining that advantage. In the short term, there is little hope for real change in asylum seeker policy. It will not happen until we have a leader from either side of politics prepared to change the framing of this issue and generate a change in public opinion, a leader who can find the moral fortitude to forgo the votes gained by pandering to uninformed fears.

Instead of trying to dodge our international obligations to refugees, or use asylum seekers for political mileage, Australia should be proud that asylum seekers come to us for help. Our nation is a dream to persecuted people. We are that ‘somewhere over the rainbow’ where refugee children can be safe, where they can find freedom from fear. Australia’s system of democracy, rule of law and stable society are a beacon of light in a dark world. In order to reduce those tiny numbers of desperate people who come here, some politicians want to subvert the law, to reduce the rights we grant to people and to treat them inhumanely. To do this would snuff that light in the darkness, the very thing that makes Australia a great nation.

Shame on them.

Photo Credit: Tim Bennett, Electron Soup


  1. Department of Immigration and Citizenship (2009) ‘Fact Sheet 60 – Australia’s Refugee and Humanitarian Program’. Available online:
  2. Department of Immigration and Citizenship (2009) ‘Fact Sheet 61 – Seeking Asylum within Australia’. Available online:
  3. Estimates from the Department of Immigration and Citizenship.
  4. Georgiou, P. (2010) Valedictory speech to Parliament, p.5175. Available online:
  5. Department of Immigration and Citizenship and Organisation for Economic Co-operation and Development (2010) International Migration Outlook 2010. Available online:,3343,en_2649_33931_45591593_1_1_1_1,00.html#STA
  6. Oxfam Australia and A Just Australia (2007) A price too high: the cost of Australia’s approach to asylum seekers. Available online: ginals/OAus-PriceTooHighAsylumSeekers-0807.pdf
  7. Australian Human Rights Commission (2009) Immigration detention and offshore processing on Christmas Island, Section 8. Available online:
  8. ibid, Section 9.
  9. Department of Immigration and Citizenship (2010) Immigration Detention Statistics Summary. Available online:
  10. A Just Australia (2010) The Legality of Detention as a Deterrent. Available online:
  11. Gillard, J. (2010) ‘Moving Australia Forward’, Speech to the Lowy Institute. Available online:
  12. Feller, E. (2010) ‘UN Assistant High Commissioner for Protection’, The Age, 19 July 2010. Available online:
  13. Justice for Asylum Seekers Alliance (2002) Alternative approaches to asylum seekers: Reception and Transitional Processing System, JAS Alliance, Detention Reform Working Group, Victoria. Available online:
  14. United Nations High Commission for  Refugees (2006) Alternatives to Detention of Asylum Seekers and Refugees. Available online:
  15. Evans, C. (2008) ‘Labor unveils new risk-based detention policy’. Available online:
  16. Department of Immigration and Citizenship (2010) ‘Fact Sheet 62 – Assistance for Asylum Seekers in Australia’. Available online:
  17. Department of Immigration and Citizenship, ‘Fact Sheet 64 – Community Assistance Support program’. Available online:
  18. Hotham Mission Asylum Seeker Project (2010) The Rights of the Child. Available online:
  19. Department of Immigration and Citizenship (2009) Community Care Pilot & Status Resolution Trial. Available online:
  20. Senate Estimates, Legal and Constitutional Affairs Committee (2007) Hansard, 21 May 2007, p.121.
  21. Australian Human Rights Commission, op. cit., Section 8.1.
  22. United Nations (1952) Convention Relating to the Status of Refugees, Article 1. Available online:
  23. Maley, P. (2010) ‘Lady’s not for turning on asylum seeker boats’, The Australian, 25 June 2010. Available online:
  24. Refugee Council of Australia (2010) Economic, Civil and Social Contributions of Refugees and Humanitarian Entrants. Available online:

AUTHORS(S): Kate Gauthier

Sharing the luck

Cultural policy in Australia

51 Comments 05 July 2010

by Ben Eltham and Marcus Westbury

Policy context

In early 2010, more than 15,000 people gathered on Bourke Street in front of Victoria’s Parliament building to register their protest against an unpopular government decision.1  The colourful crowd chanted and marched, sported placards and banners, and listened to speeches by local identities.

What were they protesting about? Climate change? Refugees? The war in Afghanistan?

No, they were protesting about a decision by Liquor Licensing Victoria to enforce onerous security requirements on live music venues in Melbourne. The new regulations had led to the closure of one of Melbourne’s best-loved rock venues, a Collingwood pub named The Tote. Many other venues were threatened with the same fate.

This was a protest about cultural policy.

“Cultural policy” is not often thought of as an important topic of public affairs. That’s odd when you consider that culture touches on many of the things that Australians do, see, hear and engage with everyday. Watching television, reading a newspaper, playing a computer game, updating your Facebook status, sending a tweet, going to a bar to see comedy, even things like gardening and cooking: all of these activities are explicitly cultural.

“Culture”, as English critic Raymond Williams once pointed out, “is one of the two or three most complicated words in the English language.”2 Culture in Australia is no exception. It’s simultaneously broad, diverse and multi-faceted. It ranges from the oldest continuous cultural traditions in the world, to be found in the art and culture of Australia’s Aboriginal and Torres Strait Islander peoples, to the newest digital forms of cutting-edge expression. It includes the highly trained professionals in our nation’s orchestras, operas and dance companies, as well as the “weekend warriors” who dust off their guitars for a weekly neighborhood jam session. It encompasses some of the most popular types of entertainment media, to be seen on top-rating TV shows like Masterchef or So You Think You Can Dance, as well as obscure community arts projects and folk crafts. Culture is about learning a foreign language, sharing thoughts, words and images with a friend on Facebook and listening to your iPod on the way to work.

But all too often, when we discuss government policies towards “culture”, what we actually mean is “the arts” – and only a small subset of the arts at that. Indeed, when we think about cultural policy in Australia, we often think simply of grants to artists, or government cultural agencies such as the Australia Council, as though these are the principal aspects of government policy towards culture.

In fact, cultural policy cuts across many government portfolios and encompasses a vast swathe of everyday life. It’s as much about the rock band at your local pub as it is about the Sydney Opera House, as much about popcorn during the movie as chardonnay after the ballet. Cultural policy is about what you can and can’t watch on free-to-air TV or view on the internet, whether you can exhibit photos of naked children in an art gallery, or when and where a band is allowed to play.

The size and scope of culture

Culture is all around us. Millions of Australians engage in cultural expressions for their own pleasure every day. For every Hugh Jackman, there are tens of thousands of unknown but passionate artists in hundreds of different artforms, all grappling with the age-old challenges of making art that someone, somewhere will want to experience and engage with. In comparison with this vast cultural universe, the kinds of activities supported by the Australia Council – and by extension that are within the policy brief of government – are a small and dusty room.

One way of taking in the size and scope of culture in Australia is to examine the size of the so-called “cultural” or “creative” industries. These are a far bigger share of our economy than many people realise. The Australian Bureau of Statistics tells us that there are nearly 300,000 Australians working in a cultural occupation as their main job; more than car manufacturing and mining combined.3 In June 2006, there were more than 77,000 registered cultural businesses contributing a total cultural output approaching $41 billion.4  In 2003-04, Australian households spent $14.6 billion on cultural items like books, CDs and pay TV. Culture is also a big part of our daily lives: watching television is Australians’ most important leisure activity, and the movies are our most popular destination when we go out. More than three-quarters of Australians read for pleasure, while nearly 14 million of us attend a cultural venue or event at least once a year.5 More importantly, the impact of culture is beyond economics. It’s at the heart of our identity and way of life.

So it’s quite a surprise when you realise Australia has no formal cultural policy, and hasn’t since Paul Keating’s Creative Nation policy of the 1990s. Cultural policy has evolved as an ad hoc series of decisions by governments of all levels. The result is that there is no coherent set of principles to underpin the way our governments at all levels support and regulate culture. Rather, a set of de facto policies has evolved, often haphazardly, which are inconsistent and contradictory.6

One of the biggest problems is that the current framework views cultural policy almost exclusively in terms of arts funding, rather than the much bigger area of cultural regulation. Things such as copyright laws, media regulation and censorship, urban planning and public liability laws that impact upon the viability and diversity of cultural expression are beyond the reach of the current paradigm. Though they have a far greater impact on cultural life than the funding of any individual company or initiative, they are beyond the scope and responsibility of our cultural agencies.

When you look at Australian culture in all its richness, the inconsistency of policy responses reveals the ad hoc nature of the current approach.

For instance, the Australian taxpayer spends hundreds of millions a year supporting Australian films, but not Australian computer games. We enforce some of the most stringent and punitive copyright laws in the world, without examining the costs of these special industry protections to consumers, schools, libraries and the public sphere. State governments promote contemporary music policies (“Victoria Rocks”) at the same time as imposing crippling regulations on the live venues that support that contemporary music (such as the laws that shut down The Tote). We create powerful economic incentives to replace live venues with poker machines without any evaluation of cultural consequences. We create regulations such as building codes, zoning and planning approaches without regard to the capital constrained nature of cultural practice. We maintain inconsistent and incoherent approaches to media regulation that means adults can watch an R-rated movie, but not experience similar material in video games, and perhaps soon, not on the internet either.

Another consequence of these inconsistencies is a sustained lack of funding and support of Australia’s indigenous cultural expressions. In cultural funding terms, the “great Australian silence” towards the richness and diversity of Aboriginal and Torres Strait Islander cultures, first criticised by anthrolopologist W.E.H. Stanner in 1968, still continues today.7 While some of the oldest living forms of music in the world slowly die out in central Australia, the Australia Council gives more than five times more money to Opera Australia than it does to its entire Aboriginal and Torres Strait Islander Arts Board.8 Opera is a valuable part of the western tradition. But Australia’s indigenous cultures are a unique, rich and valuable set of traditions that are both vulnerable and potently powerful symbols of Australia around the world.

But our cultural policy debate rarely discusses these issues.

Where do we weigh the balance between expanding the choices and options for media consumers and small producers, rather than the industry protections of media proprietors? Where in debating copyright frameworks do we balance the rights of copyright holders (generally big media companies) with copyright users (generally consumers and public institutions like schools and libraries) in line with the realities of contemporary cultural practice? Where do we weigh the merits of supporting living artists making original new work against the heritage artforms and traditional European genres that we overwhelmingly fund?

The Rudd-Gillard Government’s cultural policies

While the Rudd-Gillard Government under Minister Garrett has begun the important task of developing a National Cultural Policy, in practice very little has changed since the Howard era – continuing a lineage of ad hoc policies and evolving misallocations that stretch largely unbroken back to the Whitlam era.

In developing a national cultural policy and in taking submissions about what it should be, there has been a notable step forward. The Howard Government did no such thing in 11 years in office. However, whether the need to engage comprehensively with the policies that affect culture can be reconciled with a powerful inertia pushing towards a policy that is purely about funding for the arts remains to be seen.

In calling for submissions on a new national cultural policy, Peter Garrett at the very least encouraged us to examine the way things actually work – or fail to work – already. Arts and cultural debates in Australia often devolve into a contest between those opposing government funding, and those seeking to increase it. Cultural regulations are generally ignored. By focusing debate on our current policy settings, we now have a chance to advance some much-needed options for reform.

Meanwhile, in the absence of a coherent cultural policy framework, much of the cultural policy action has taken place outside the Arts portfolio. In the Communications portfolio, the development of a National Broadband Network promises the largest cultural infrastructure project in the nation’s history – despite rarely being described and evaluated as such. Indeed, there appears to be little if any discussion of the cultural impact of the regulatory, technical, economic rules that will govern such a network.

Equally, the proposal to censor the internet through an unworkable mandatory filter is a decision with profound cultural consequences. This $125 million effort must count as one of the strangest policies of the Rudd-Gillard Government. While the filters are unlikely to prevent predators and pornography, they will have major consequences for freedom of speech and expression. The policy abandons our Western liberal tradition to follow a precedent established by totalitarian countries such as Iran and China. It’s hard to think of a more counter-productive policy for Australian culture.

Why the Australia Council needs to be reformed

The Australia Council for the Arts is the Australian Government’s dedicated arts policy and advisory agency, so it’s a good place to start when we examine cultural policy.

The Australia Council was formed in 1973 by Gough Whitlam’s government. It introduced meaningful support for artists and organisations working in artforms such as theatre, dance, visual arts and literature for the first time.9

Unfortunately, the Australia Council’s structure and artistic focus has changed little since the 1970s. In this time, driven by new technologies such as the internet, art and culture has changed radically.

The result is that the Australia Council is increasingly irrelevant to culture today. The act under which it operates defines both what culture is and how it should be administered in ways that are hopelessly out of date. For example, the Australia Council has had little meaningful engagement with digital and new media arts, social networking, or gaming. In a decision driven by internal bureaucratic politics, the Australia Council abolished its New Media Arts Board in 2005.10

In a tale familiar to students of public policy in other spheres, the Australia Council has also been “captured” by the arts organisations it funds. Although it contributes small but significant amounts of funding to smaller companies and individual artists, the Australia Council now exists largely as a conduit to funnel money to a small number of large, privileged arts organisations. Its supposedly important functions of peer-review, advocacy and arms-length policy analysis have withered away to almost nothing. In monetary terms, the majority of the grant dollars it distributes are not peer-reviewed at all.

The Australia Council is the cultural equivalent of the National Trust. For instance, while the Australia Council devotes approximately $90 million to music funding, only two per cent of this goes to jazz, rock, pop and other contemporary forms of music.11

The heritage aspect of the current Australia Council’s role is an important function. But it should not be at the centre of cultural policy. We desperately need a planning and development agency whose primary concern is contemporary cultural dynamics, opportunities and developments, and not merely heritage preservation.

The problem: the need for a holistic approach to culture

We are a long way from a joined-up approach to culture across and within Australian governments. In fact, Australia’s cultural policy is hopelessly fragmented across many agencies, leaving great gaps.

A glance at the way screen and broadcasting policy is handled in Australia illustrates this point. Australia’s federal Arts portfolio under Peter Garrett includes Screen Australia, the national film and television development agency. But Screen Australia plays no role in screen and broadcasting regulation, which is governed by the Australian Communications and Media Authority, part of the Department of Broadband, Communications and the Digital Economy. Copyright law and the Australian Classification Board are the province of the Attorney-General’s department. Digital content innovation and R&D is under the purview of a fourth department, the Department of Innovation, Industry, Science and Research. University film schools such as the Victorian College of the Arts are the responsibility of the Education Department. Film festivals are generally funded by state governments. The permits and regulations for film-makers wanting to shoot in a particular location are imposed by local governments. There is no national screen policy that seeks to join up all these dots.12 Indeed, as film and video production becomes more decentralised, many screen-based practitioners are working in areas such as online video, gaming, and non-broadcast based media that have little or no engagement with, nor are consulted, by any of these agencies.

Australia’s cultural agencies were largely devised when the number of places in which cultural production and distribution took place was small and relatively fixed. At their core they are still rooted to the idea that a small number of elite artists produce and present large-scale culture through major institutions based on a classical European model or – in the case of film – major commercial producers and distributors.

In contrast, society is becoming more culturally diverse. Immigration, demographic change and new technologies and communications media have transformed the spectrum of cultural choices available.13 The large-scale infrastructure and mass subscription model that underpins the logic of many funded arts organisations is poorly equipped to respond to the plethora of new artists, artforms, audiences, genres, and sub-cultures emerging in a rapidly changing cultural dynamic.

The lack of engagement with cultural regulation in the music industry illustrates the counter-productive consequences of this disconnect. In Victoria, the state government has a specific policy for supporting contemporary music called “Victoria Rocks”, administered by Arts Victoria. Contemporary music is largely performed in small, commercial venues such as pubs, clubs and bars – and the proliferation of niche genres, markets and audiences is creating even greater demand for smaller venues. Yet these same venues are closing in response to tighter regulations from another part of the Victorian government that deals with liquor licensing. Nationally, the need to create viable small scale cultural venues – for music and other creative forms – is clashing with policies that are fostering denser urban planning, expanding numbers of gambling venues and poker machines, and requiring capital intensive building codes. Despite the Australia Council’s own research14 demonstrating that contemporary music is much more valued than the orchestras and opera companies that it overwhelmingly funds and focuses on, neither Arts Victoria nor the Australia Council have engaged substantially in these debates.

Our funding-centric approach to culture largely ignores these issues, yet federal issues such as tax, social security compliance, copyright and media policy, state issues like liquor licensing and public liability law, and local government issues like noise laws and urban planning are key cultural policy questions. There has been little or no effort by the Commonwealth or the states to try and adopt whole-of-government policies towards culture. As a result, much government cultural funding is wasted, and the practical needs of most artists, small organisations and even entire cultural industries (such as the design industry) are falling through the cracks.

Case study: Creating space for artists to be creative

One of the biggest problems for artists, who typically have low incomes, is finding affordable space from which they can create, distribute and present their work. While a prolonged property bubble has driven up rents and exacerbated this problem, there are still many spaces within Australian cities that sit empty. In late 2008, the Renew Newcastle scheme was established in the regional New South Wales city of Newcastle to take some of the 150 otherwise vacant commercial spaces in that city and make them available to artists, creative enterprises and community groups. To date, the initiative has placed more than 50 artists in shops, offices, studios, and galleries. In doing so, it has revitalised a once emptying city centre and seeded a series of creative initiatives, both commercial and not-for-profit. It is a model for facilitating low-cost decentralised cultural production that other cities such as Cairns, Townsville, Adelaide and Geelong have begun to emulate.

While the scheme has been a success, it is also a case study in the lack of responsibility for cultural regulation at a national level. The very presence of empty spaces in many cities is a product of both market failure and government regulation: many buildings sit vacant due to complex tax laws and planning regulations that provide strong incentives to owners to leave buildings vacant. As a result, flexible access to these spaces for artists and creators is essentially a policy setting – even if it is not an artform-specific funding issue.

Unfortunately, under the current model, there is no capacity for meaningful engagement with the Federal Government around these issues. The Australia Council’s ambit to fund or support culture is defined in the dated, art-form specific cultural responsibilities defined by its 1970s era legislation, and cultural practitioners who work in ways that don’t fit into this model have no place in such a structure. Further, because the Australia Council is also the national cultural policy advisory agency, these artists and their issues are not represented in the Australia Council’s policy advice.

Iconic institutions or starving artists?

Spare a thought for the people who make Australian culture happen: the artists. The debate about Australian culture often ignores the great achievements of the individuals who create it.

In 2003, economist David Throsby released an in-depth report into Australian artists’ incomes. The title of the report, Don’t Give Up Your Day Job, says it all. The report found that the mean creative income for an independent artist working in Australia was only $17,000 per annum (the average annual wage in Australia in 2003 was about $52,300). But in that year, the Australia Council distributed just 6.3 per cent of its grant funding to independent artists. The remaining 93 per cent went to organisations.15 A recent, comprehensive survey of Australian arts funding commissioned by Arts Queensland found that “grants to individual artists to make work are estimated to be fewer than five per cent of all arts funding.”16

As folk wisdom suggests, choosing the arts as a career can still mean a short road to relative impoverishment. Most artists and creative workers take a huge pay cut just to work in their chosen field of employment, and as Throsby found, nearly all of them need an extra part-time job or two just to survive. Of course there is not necessarily anything wrong with this: people like nurses and teachers choose professions that reward them in non-financial ways all the time.

But the huge imbalance of funding between artists and organisations is the result of a long-term decline in direct funding for Australian artists and creative workers that has damaging consequences for the Australian creative economy. In the absence of direct public sector funding for artists undertaking primarily creative work, the balance of arts funding goes towards administrative positions within funded organisations. The unquestioned assumption that large companies and fixed institutions are at the centre of cultural life has placed the management and maintenance of such organisations at the centre of cultural policy concerns and government expenditure.

In this era, such an approach is neither effective nor efficient. Despite their bohemian reputation, individual artists can often be highly efficient, as they are excellent at leveraging and making the most of scarce resources. They can also be flexible and capable of building appropriate structures and mechanisms to create, present and promote individual shows or projects. Their way of operating allows for small-scale experimentation, innovation and risk taking. Individually and collectively, they are highly responsive to technological change, changes in audience dynamics, and the decentralised environment of cultural creation and consumption. They require little in the way of expensive infrastructure. By contrast, the highly-centralised structures in which we invest most of our cultural resources have high overheads and are often conservative, risk-averse and place comparatively little value on experimentation or the creation of new work.

Individual artists (especially non-famous ones) are the forgotten voice in the Australian cultural debate, even while they provide the bulk of the workforce for our cultural endeavours. It’s high time Australia re-balanced its cultural investments and regulations away from big buildings and big corporations, and towards the creative human capital of the cultural sector. At stake is not the future of artistic achievement in Australia — for artists will always create, no matter their economic circumstances — but the ability of Australian creators to tell their own stories, and create for their own communities.

A new cultural agency for contemporary Australian culture?

The reliance on the Australia Council as the primary agency for cultural policy is inherently unsustainable. Australia needs a new government cultural agency with a contemporary brief: to ensure that we are a nation that is a creator and not merely a consumer of culture, and that Australians are active and enabled participants in the increasingly globalised cultural pool.

The brief should be primarily cultural, not economic – but must recognise that culture has an economic component. Culture is ethereal and beautiful, but it is also subject to market forces, and can bring great economic benefits.

Such an agency needs to work beyond the funding paradigm, to ensure the tax system, intellectual property law, social security regulations, compliance costs in the built environment and other policy areas take into account the needs of contemporary cultural production. It needs to ensure that contemporary Australian culture is funded and resourced at least as well as heritage arts, and that these policy priorities are elevated to at least the same level.

The key policy goal should be primarily concerned with the creation and promotion of contemporary Australian culture – in all its diverse forms. To do this, we must recognise that most Australian artists and creators do not work for or in large funded arts companies, and that therefore we need to promote policies that support and respect this reality.

One of the ambits of this agency should be to review and make recommendations on Australian industry and market regulations for the cultural industries, from a cultural as well as an economic perspective. The design of cultural markets, the rules and regulations that govern them and the incentives that they provide are often created by government, and have profound cultural consequences that no agency is currently charged with addressing. This role should not necessarily lead to public subsidy for commercial markets or protectionism, but it should recognise that the market fails to support many artforms – not just orchestras and arts centres.

The false divide between “high art” and “popular culture”

Cultural policy has long been bedeviled by a false distinction between what is sometimes called “art for art’s sake”, and for-profit cultural products created by the entertainment industries. Public funding for the so-called “high arts” is often justified by the artistic merit of artforms such as literature, theatre or orchestral music, and by the supposed inability of these arts to exist if left to the workings of the free market. In this world view, government support for popular culture is often frowned upon as a “dumbing down” of standards, and in any case unnecessary, because the market already provides these products.17

In the real world, this is a false divide. The “high arts” can often be boring, unoriginal and pretentious, while so-called “popular culture” can display high standards of creativity, originality and artistic craft – and vice-versa. Similarly, heritage artforms such as Wagnerian opera or Shakespearean theatre can be immensely popular and highly remunerative, while many types of popular culture can be very unpopular indeed.

In developing a new cultural policy, the age-old dialectic of “high arts” versus “popular culture” should be abandoned. Artworks are not good or bad just because they are popular or unpopular, and valid and original work can be found in every artform and genre.

Five policy solutions:

1. Recognise that “cultural policy” is about more than funding for the arts. It’s about policy frameworks across government including media policy, education, copyright and censorship law, tax, urban planning, liquor licensing and R+D.

2. Abandon the false divide between high art and popular culture. Art and culture of all different genres and types can be popular or unpopular, and good or bad. Cultural policy should not be based on preconceptions about which artforms are “worthy” of public support, but on cultural values that can manifest themselves in many ways, across many forms and genres.

3. Create a new cultural agency for contemporary Australian culture. Australia needs a new government cultural agency with a contemporary brief: to ensure that we are a nation that is a creator and not merely a consumer of culture, and that Australians are active and enabled participants in the global cultural pool. The Australia Council is not an organisation capable of this, or of becoming this.

4. Cut the red-tape that affects culture. Many artists and cultural organisations are constrained by access to appropriate infrastructure, like venues and work  space, as well as capital. The ability to put in place policy settings that allow them to perform, present and produce with limited capital is more important (and effective) in ensuring their success than direct subsidies.

5. Fund artists and production, not institutions. Ordinary working artists are the forgotten people of Australia’s cultural policy debate. Their average income is well below median Australian wages. Yet individual creators and artists are the life-blood of Australian culture. Where new funding is created, it should be directed towards individuals and small companies – not large institutions. And because so many artists are so poor, small amounts of funding can go a long way.

Photo Credit:  Angelica Jellibat,


  1. Donovan, P. (2010) ‘‘They can’t shut us down’: thousands rally for live music’, The Age, 23 February 2010. Available online:
  2. Williams, R. (1976) Keywords, Hammersmith, Fontana, p.87.
  3. Australian Bureau of Statistics (2008) ‘Employment in Culture, Australia, 2006’, Cat. No. 6273.0. Available online: latest ABS figures are for 2006, when 284,793 Australians worked in cultural occupations as their main job.
  4. Australian Bureau of Statistics (2008) ‘Australian Industry, 2005–06’, Cat. No. 8155.0. Available online:; Australian Bureau of Statistics (2008) ‘Counts of Australian Businesses, including Entries and Exits, June 2003 to June 2006’, Cat. No. 8165.0. Available online:
  5. Cultural Ministers Council (2008) Statistics Working Group: Arts and culture in Australian life: A statistical snapshot, Canberra, Department of the Environment, Water, Heritage and the Arts. Available online:
  6. See: Craik, J. (2006) Re-Visioning Arts and Cultural Policy: Current Impasses and Future Directions, Canberra, ANU EPress. Available online:; and Throsby, D. (2006) Does Australia need a cultural policy?, Strawberry Hills, Currency House Press.
  7.  Stanner, W.E.H. (2009) The dreaming & other essays, Melbourne, Black Inc.
  8. In 2009, the Australia Council distributed $3.7 million to its Aboriginal and Torres Strait Islander Arts Board, and $17.9 million to Opera Australia. See: Australia Council (2009) Australia Council Annual Report 2008-09. Available online:; and Opera Australia (2010) Financial Report 2009. Available online:
  9. See: Gardiner-Garden, J. (1994) Arts Policy in Australia: A History of Commonwealth Involvement, Canberra, Australian Parliamentary Library.
  10. Gallasch, K. (2005) Art in a Cold Climate. Rethinking the Australia Council, Strawberry Hills, Currency House Press.
  11. Clayton, J. and Travers, M. (2009) Arts Plus: New Models New Money: Australian Survey, Kensington and Brisbane, Centre for Social Impact & Arts Queensland, p.15.
  12. Eltham, B. (2009) ‘Australian cultural and innovation policies: Never the twain shall meet?’, Innovation: Management, Policy & Practice, 11(2): 230-239.
  13. See: Holden, J. (2007) Logging On: Culture, Participation and the Web, London, Demos; and Hesmondhalgh, D. (2007) The Cultural Industries (2nd Edn), London, Sage Publications.
  14. Australia Council (2010) More than bums on seats: Australian participation in the arts, Strawberry Hills, Australia Council.
  15. Throsby, D. and Hollister, V. (2003) Don’t Give Up Your Day Job: an economic study of professional artists in Australia, Strawberry Hills, Australia Council; and Australia Council (2004) Annual Report 2003-04, Strawberry Hills, Australia Council. Available online:
  16. Clayton, J. and Travers, M., op. cit., p.19.
  17. The best discussion of this false dichotomy is by economist Tyler Cowen, in Cowen, T. (2006) Good and Plenty: The Creative Success of American Arts Funding, New Jersey, Princeton University Press.

AUTHORS(S): Ben Eltham and Marcus Westbury

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How to end social apartheid in Australian schools

8 Comments 28 June 2010

How our schools funding system is hurting students – and what to do about it

by Chris Bonnor

Imagine this letter from a suburban constituent to her local member in 2020:

“I’m writing because I can’t really find a secondary school for my son Jahred in Year 7 next year. The closest school is a church school but we’re not churchgoers. Anyway, we can’t afford fees like that. The closest public school was closed down in 2012. Another was made selective. There is a good school in the next suburb but it became one of those independent public schools a few years ago. They interviewed Jahred but now they say that they can’t cater for his special needs. There is a music academy four suburbs away but he is really better with his hands. Of course there is the comprehensive school near the shops but I don’t want him in with the wrong sort, if you know what I mean. Anyway, he doesn’t mix with many of the kids that go there. They’re not like us. Mum tells me that in her day there were plenty of good schools, and grand-dad grew up in the bush where all kids went to the local school. Everyone now talks about choice – but what choices do I have?”

It would be a sad letter, one which suggests almost a social and academic apartheid, separating the schools depicted. What is really worrying is that many Australians can write a letter like this right now.

Many Australian schools are not obliged to take all comers. Simply by charging fees school enrolments are inevitably sorted along social lines – and devices such as tests, interviews, scholarships and references act as additional discriminators. Selective schools, particularly in New South Wales, contribute to the growing social and academic divisions between one school and another. Even a “comprehensive” public school in a high demand area (that is, a high income area) has some capacity to pick and choose. There are enrolment procedures, rules and zones, but little gets between school principals and the intake of students they desire. In fact almost half our secondary schools have some say over who walks in through the school gate.

The flipside of consumer choice – where schools either actively or passively choose desirable students – is now a big feature of our education system. The end result is that we are seeing unprecedented social, academic and other differences in the enrolment profile of schools.

Fast facts: The widening gap

  • In 1996 there were around 13 low-income for every ten high-income students in our public school playgrounds. Ten years later there were 16 for every ten.1 The opposite trend occurred in private schools. This gap is increasing.

“Catholic schools are not educating most of our poor, especially at the primary level. 72 per cent of Catholic students from families with lowest third of family income attend Government infant/primary schools and only 19 per cent attend Catholic schools. At secondary level 63 per cent of the “poorest” Catholics attend Government secondary schools and 22 per cent attend Catholic secondary schools. Predominantly our schools now cater for the huge Australian middle class, which they helped create.”2

- Cardinal George Pell, Archbishop of Sydney, 28 September 2006

Research and commentary in this area highlights the role played by our increasingly dysfunctional federal system of government; a complex umbrella under which good intentions have been mixed with trade-offs and short term fixes – and the education portfolio attracts more than its fair share of ad hoc decisions and special deals.

Research also refers to the arguably unique way in which Australian private schools are funded from both private and public sources with relatively little government oversight or regulation. These schools compete against each other and also against the public schools which are dependent on state government finances and which, unlike private schools, are usually obliged to enrol all comers. It would be hard to come up with a better formula for generating divides between schools.

But as the letter from Jahred’s mum suggests, the public-private divide is not the whole story. Public education systems have created and cemented their own hierarchies. Selective schools have multiplied in New South Wales. The impact of creating greater autonomy for schools in Victoria has been well-researched.3 The most recent variation to inclusive public schooling is the creation of “Independent Public Schools” in Western Australia – something which has excited both Tony Abbott4 and Julia Gillard.5 In Stephen Lamb’s words:

“the school reforms driving the growing diversity in schools over the last decade have intensified the gaps between schools serving the rich and those serving the poor, gaps marked by growing differences in school size, student intake, resources and achievement.”6

We know and should be concerned about the high cost of low educational performance.7 International comparisons show that selecting children for separate and unequal schooling does not deliver improved learning outcomes for whole systems or countries.8 We also know much more about the social and economic costs and impacts of inequality.9 In the light of this how much confidence can we really have in our divided school system with its long underperforming tail?

Schools policy: the need for a new approach

Since 2007, the Labor government has been working hard to build a more comprehensive and integrated national framework for curriculum, assessment, reporting, teaching and infrastructure. It can point with justified pride to its plans and programs in funding much-needed improvements to school buildings and facilities, targeted funding, teacher quality, school leadership, vocational education and access to university, to name a few. The commitment to equity, especially for Indigenous young people, is especially welcome.

But we can’t continue to bolt even good policy onto a regressive school system. We need to reframe the education debate, while recognising that one third of the nation’s children are enrolled in private schools. Jane Caro and I attempted this in The Stupid Country.10 A number of ‘must read’ analyses have been written by Jack Keating11 and more recently by Lyndsay Connors and Jim McMorrow.12 These all show that the way out of our current predicament lies in revisiting how we provide and fund schools.

Fortunately, in 2010, the Government has finally commenced its long awaited Review of Funding for Schooling. In the context of an otherwise conservative reform agenda, only this review gives cause for hope that attention will be turned towards the deep structural and equity problems in Australian schooling.

The Discussion Paper and Draft Terms of Reference for the Review seems to be sounding the right notes. It constantly refers to all students, the need to determine principles, to learn from overseas models and the need for a fairer and more transparent system.13 It even refers to the review being “evidence-based” – an expression which quickly went missing after the initial excitement of the 2007 election. Even the composition of the expert panel leading the review provides grounds for cautious optimism.14 Done properly, the review and reform of schools funding can address the issues discussed in this chapter.

But even the best plans and intentions can be hijacked by commitments and promises to vested interests, which would pre-empt any serious review of this enduring and difficult aspect of the politics of education in Australia. We can only hope that the newly-elected Gillard Government will follow-through with this review, focus on the good principles already announced, and engage the community in debate around these fundamental issues: What sort of public education system do we want in Australia? What sort of society is our current system creating?

Review of school funding: Labor’s principles

“The guiding principle of the review of funding for schooling is that a funding system will support schools to raise the educational standards of all school students whilst reducing achievement gaps between students.

In reviewing school funding arrangements, the Australian Government aspires to an outcome which:

  • results in a fair and simple funding model that supports student attainment and distributes funding to where it is needed most, regardless of sector.
  • builds the strongest possible platform for financially sustainable long-term investment in schooling and improvements in educational outcomes beyond 2012.

Consequently, the Australian Government’s view is that the principles upon which any new model for school funding is developed should be based on simplicity, flexibility, stability, equity, value for money, transparency and best practice.”

Source: ‘Review of Funding for Schooling: Discussion Paper and Draft Terms of Reference’, Commonwealth of Australia 2010

Getting the focus right: Key issues in funding education

There has been an endless – but constantly recycled – debate about the merits or otherwise of public or private schools, and whether students in one system or the other should get more public funding. Media attention also intermittently focuses on the superficial labelling of good and bad schools encouraged by My School. However, the market principles underlying the current system of schools funding, that competition and choice creates quality for all, go unchallenged.

As we begin the second term of a Labor Government it is time to think long term, clarify goals and review policies, to ensure a strong alignment between principles, policies and the wider structural reforms needed to make these policies sustainable and successful. In the process we have to be driven by social justice concerns but also by the fact that greater equity and access to quality schooling, and improved educational outcomes, can deliver dividends in economic growth and competitiveness.

Issue #1: Supporting comprehensive public schools

Long ago Australia established a system of public schools premised on the belief that circumstances of birth, family and community should not determine who succeeds and who struggles. Quality public schools have always been at the centre of the successful Australian story. We need to reverse the long slow march away from a system in which most schools were inclusive, were rooted in their communities and which, in their 100-year heyday, significantly cut across social divides.


The primary focus of the schools funding review must be on the schools that are open and accessible to all. This rests on one core principle: that every family deserves the choice of an excellent public school. Funding principles should reward schools, regardless of sector, which commit to inclusive enrolment practices.

Issue #2: Needs based funding to reduce the gaps

The main idea driving schools policy in Australia is the increasingly discredited belief that it is school competition and choice which creates quality for all.15 We promote this choice mainly by subsidising private schooling. But regardless of the merits of any individual schools, choice remains elusive for most people.

“the competitive use of individual choice, combined with selection and streaming and an increasing concentration of social geography, will stratify the opportunities available to students from different socio-economic backgrounds and undermine the performance of the system as a whole.”16

Tom Bentley, then Director of UK think-tank Demos, now one of Prime Minister Gillard’s top advisors

We are allocating scarce public resources – in many cases well above entitlement – to children whose level of achievement and access to quality learning is already well-supported. We increase the advantages for some while increasing the concentration of lower achieving children in disadvantaged schools. It is simply harder for all children to achieve in these circumstances.


Good policy will identify the real drivers of quality and equitable schooling. It will ensure that public investment in schools allocates teachers and other resources according to the needs of all students for a quality education. It will acknowledge the diversity in school provision but, in common with most OECD countries, will ensure that this does not widen the opportunity and achievement gaps between children and between schools.

Issue #3: Rebuilding confidence with real transparency

The policies and strategies for transparency represented by the My School website don’t really pass close scrutiny. The information provided is not sufficient, accurate or meaningful. It drives invalid comparisons between schools, in turn feeding a poorly-informed language about success and failures, winners and losers.


Schools should always provide as much information as possible to parents and the wider community, information which is validated by independent and frequent school reviews. There are no short cuts in this, least of all the publication of comparative school-by-school tables based on raw student test scores.

Independent appraisal and the development of schools in cooperation with each other, improves quality far more than anything achieved by competition. Schools which are not performing to expectations should be provided with support, but if needed must also make changes to leadership and practice in areas as diverse as classroom teaching and links with their community.

Issue #4: Building social capital

We need to recognise and rebuild the social and civic purpose of inclusive schools. Schools generate and sustain social capital; they are part of the glue which creates viable communities and underpins a healthy democracy. Good policy will encourage the role that inclusive schools play in creating community cohesion, harmony and development. While all schools work hard in civic and social justice programs, the loss of the essential bridging and linking work performed by inclusive local schools reduces the power of all schools to create connections across religious, racial and social class divides.


Public funding must strongly support, as a priority, local schools which are open to all students. Schools which choose, by the use of various discriminators, not to serve all children and families should have a reduced entitlement to such funding. If we can do this we’ll achieve a much better balance between the private benefits schools provide for students and families and the wider public benefits of public funding – and we’ll accrue social and economic dividends from this improved balance.

Issue #5: Effective investment in schools

For years we have been under-investing in early childhood education and under-investing in ‘at risk’ students in disadvantaged schools and communities – while combining public and private funding to over-invest in children whose level of achievement is already high.

Investment in education should provide the best delivery for the dollar, supporting student growth and maximising student achievement. We should better resource those children and families for whom it will make the greatest difference. Good policy will also ensure that investment in schooling is efficient, providing complementary rather than wastefully competing services, as well as providing the resources and services which are proven to be effective.

“No arbitrary obstacles should prevent people from achieving those positions for which their talents fit them and which their values lead them to seek. Not birth, nationality, colour, religion, sex, nor any other irrelevant characteristic should determine the opportunities that are open to a person…”17

- Milton Friedman and Rose Friedman


We need to achieve a pattern of investment in schooling which reflects known evidence, agreed targets and priorities. The huge capital investment in school infrastructure is welcome but it has been rolled out regardless of school size, sector or properly assessed need. Even more important than the much publicised issues of waste and efficiency, it may simply be compounding the equity problem. Even if the claimed benefits of the computer roll-out are realised, the opportunity cost of the “digital education revolution” really needs to be carefully considered.

Issue #6: Individual achievement and retention rates

Australia’s school achievement and retention rates vary considerably over time and from place-to-place, with a persistent level of student disengagement. Our response seems to be to import unproven solutions – such as narrowly focused testing of students and subsequent ranking of schools – from jurisdictions which are less highly regarded and where claims of success are seriously contested. It’s an odd strategy for a country where average student achievement ranks well in the world but where the underachieving tail, well-documented for some time in OECD reports,18 is doggedly resistant to a long parade of quasi-market reforms. 

The retention of students into their late teenage years, supported by the best possible teachers, is crucial to maximising student achievement. This would improve livelihoods for all school leavers and deliver economic dividends which would accrue to the whole nation.19


Good policy will ensure that each school as far as possible will implement curriculum and teaching which caters for and engages all students. Rather than cutting off pathways for kids at the very time they grow and change, siphoning them into selective or trade schools, we must support proven programs which can re-engage those students who might leave school early, including alternative school structures.20

We need a national curriculum that meets the needs of all students, engaging them through to the time they leave.


1. Jack Keating’s National Reform Agenda

A good start for education reform would be the structural initiatives and projects included in Jack Keating’s 2009 proposals for a national reform agenda. Keating refers to curriculum and funding but also talks about the need for reframed goals and purposes, a common regulatory framework and a national quality agency. He calls for a specific focus on early childhood, the middle years and student pathways in the upper secondary years. Professor Keating has more recently added proposals for funding schools to meet the needs identified in his 2009 paper. He expands on the principles against which funding should be measured and considers the most effective means of distributing resources.21

2. Teachers are the key: Connors and McMorrow’s New Directions in School Funding

In their search for a funding model the expert panel should pay close attention to Lyndsay Connors and Jim McMorrows’ New Directions in School Funding – a Proposed Model.22

In the words of the authors, the directions proposed in their report would:

  • put education back into schools funding
  • provide a more educationally explicit, rational and ethical basis for schools funding
  • establish clear lines of responsibility
  • align government and non-government schools funding
  • make quality teaching the centrepiece of schools funding

In common with others they argue that there is currently no rational link between the amount invested publicly in all our schools and the work we expect of them. What they propose is deceptively simple: teachers are the most significant key to quality learning, so the provision of teachers to schools in Australia must be the mechanism by which governments can achieve quality with equity. Connors and McMorrow show that governments are already providing the costs of teacher salaries and related expenses in Australia. The distribution of this resource means that the teaching workload of schools needs to be assessed. This workload will vary according to the range, intensity and complexity of needs arising from the students they enrol and the vastly differing circumstances in which they operate – something which is at the core of the problems described in this chapter.

Under Connors and McMorrow’s model, schools with similar workloads and resource needs would receive a similar level of teaching resources, regardless of sector. Schools with the greatest gap between their current level of teaching resources and their target standard would receive the greatest level and rate of public funding increase.

Like all models it has to be tested and will need modifications and improvements. But at least they propose a manageable transition to needs-based funding, something we have walked away from over the last 15 years.

If implemented their model will address most of the issues raised in this chapter in a way which may even gain grudging acceptance from the very disparate interests in Australian school education. It will help to create comparable opportunities in all schools and most strongly support those schools which meet an obligation to be inclusive. Only in these ways can we recreate the social and civic purpose of schools and put quality, equity and the learning needs of children at the heart of our school system.


Perhaps the best way to conclude is to again think about Jahred and his mum. Unless things change Jahred’s situation really will epitomise an increasingly regressive framework of schools. He wouldn’t have any choice: he would go to the increasingly marginalised school near the shops. His classmates would be the socio-economically deprived, the strugglers; the only role models within sight will be the teachers trying to do the very best for Jahred against the odds. He may join that persistent and growing tail of underachievers. His country would more or less support him whatever he does – in school, in transition, in some work and even in jail. But Jahred – and the rest of us – would all have lost an opportunity to do something better.

Photo Credit: D Sharon Pruitt,


  1. Preston, B.  in Bonnor, C. (ed) (2008) ‘The unintended consequences of government policies & the historic power of rent-seekers protecting positional goods’, 2020 School Education Summit – the public good and education of children.
  2. Pell, G. (2006) Keynote address to the National Catholic Education Conference, Sydney. Available online:
  3. Lamb, S. in Teese, R., Lamb, S. and Duru-Bellat, M. (eds) (2007) ‘School Reform and Inequality in Urban Australia – A case of Residualising the Poor’, International Studies in Educational Inequality, Theory and Policy: Volume 3 – Inequality: Educational Theory and Public Policy, Netherlands, Springer.
  4. ABC News (2010) ‘Abbott backs WA school system’. Available online:
  5. World News (2010) ‘Laurie Oakes Today Weekend Interview with Julia Gillard, Deputy Prime Minister’. Available online:
  6. Lamb, S., op. cit.
  7. Organisation for Economic Cooperation and Development (2006) ‘The High Cost of Low Educational Performance - The Long-Run Economic Impact of Improving PISA Outcomes’. Available online:,3343,en_32252351_32236191_44417722_1_1_1_1,00.html
  8. McGaw, B. (2007) ‘International benchmarking of Australian schools’, Speech delivered to the Victorian Curriculum and Assessment Authority Branch Conference Day, December 10 2007. Available online: For further work on PISA data see Schneeweis, N. and Winter-Ebmer, R. (2005) Peer effects in Austrian schools, Working Paper No. 0502, Department of Economics, Johannes Kepler University of Linz, Austria, p.2. See also Lamb, S. et. al. (2004) School Performance in Australia: results from analyses of school effectiveness, Centre for Post-compulsory Education and Lifelong Learning, Melbourne, Victorian Department of Premier and Cabinet. Available online:$file/SHAREDFUTURE040826%20-%20school%20performance%20in%20australia%20FINAL.pdf
  9. The Equality Trust (2010) The Evidence. Available online:
  10. Bonnor, C. and Caro, J. (2007) The Stupid Country, Sydney, UNSW Press.
  11. Keating, J. (2009) A new federalism in Australian education: A proposal for a national reform agenda, the Education Foundation and R.E. Ross Trust. Available online:
  12. Connors, L. and McMorrow, J. (2010) New Directions in Schools Funding, The University of Sydney Faculty of Education and Social Work. Available online:
  13. Australian Department of Education, Employment and Workplace Relations (2010) ‘Review of Funding for Schooling’. Available online:
  14. Australian Department of Education, Employment and Workplace Relations (2010) ‘Review of Funding for Schooling – Expert Panel’. Available online:
  15. Ravitch, D. in Dillon, S. (2010) ‘Scholar’s School Reform U-Turn Shakes Up Debate’, The New York Times. Available online:
  16. Bentley, T. (2004) A fair go: public value and diversity in education, London, Demos.
  17. Friedman, M. and Friedman, R. (1980) Free to Choose, New York, Harcourt.
  18. Organisation for Economic Cooperation and Development (2003) Learning for tomorrow’s world – first results from PISA 2003. Available online:
  19. Rorris, A. in Bonnor, C. (ed) (2008) ‘Investment in Australian Schools Somewhere between the virtuous and the vicious’, 2020 School Education Summit – the public good and the education of children.
  20. For an excellent example of creativity in structuring school learning, see Big Picture Education Australia. In these schools student learning is built around their passions and in tandem with internship in work and mentoring. Available online:
  21. Keating, J. (2010) Resourcing schools in Australia – a proposal for the restructure of public funds, Foundation for Young Australians. Available online:
  22. Connors, L. and McMorrow, J., op. cit.

AUTHORS(S): Chris Bonnor

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Getting health policy into shape

7 Comments 24 June 2010

Australia can get healthier by using resources wisely and making smarter choices

by Jennifer Doggett


In 2007, the Labor Government inherited a health system long overdue for reform. Australians are living longer than we did a generation ago, partly due to medical advances such as the ability to identify and treat early-stage heart disease. However, while we’ve been winning the battle against many acute, short term illnesses, many chronic conditions such as diabetes, have been on the rise. These conditions require longer-term and more complex care, often involving multiple health care providers. Trying to get our current health system to provide this type of care is like using a typewriter to twitter.

This chapter provides an overview of the state of Australian health policy, its challenges, and recommendations for specific health reforms.

The story so far

Australia’s health system was designed for another era and another generation of Australians. In fact, neither of the two major federal health programs – Medicare and the Pharmaceutical Benefits Scheme (PBS) – have changed significantly since they were set up (in the 1940s for the PBS and the early 1980s for Medicare). Along with the need to update these programs, there are other drivers for reform, such as the historical unfairness of a system in which some groups with the poorest health status have struggled to receive the care they need. These groups include people with chronic conditions, those living in rural and remote communities and Indigenous Australians. The need to change Australia’s inflexible and archaic health workforce practices has also added to the pressure for reform.

Many attempts to solve these problems have been held back by structural barriers to change, such as the historical division in funding and service delivery responsibilities between the Commonwealth and State/Territory governments. This split, which makes little policy or financial sense, has led to gaps, duplications and cost-shifting across different levels of government. Confusing governance arrangements have also reduced transparency and accountability in all areas of health care. These barriers have greatly hindered our health system from adapting to meet our changing health care needs.

Fast facts: Where does health funding come from in Australia?

  • Federal Government 43%
  • State/Territory governments 25%
  • Direct consumer payments 17%
  • Private health insurance 7%
Source: Australian Institute of Health and Welfare: Australia’s Health 2008

The reform agenda

In 2007, the Labor Government was elected on a platform of health reform and made a pre-election commitment to address the structural problems within the health system. Soon after taking office, the Government instigated a number of inquiries and commissions 1 into all areas of the health system 2, including an overarching National Health and Hospitals Reform Commission (NHHRC) 3. A dizzying array of reports and strategies was produced via these processes, which recommended major changes to the funding and delivery of health care in Australia.

The Government has responded to these recommendations and announced a reform agenda to fundamentally change the way health care is funded and delivered in Australia.

The positives

Overall, there are many positives in the Government’s reform agenda. These include:

  • An increased focus on prevention – aiming to reduce the rates of chronic disease and promote healthy ageing in the community.
  • A re-orientation of the health system around primary care – aiming to reduce overall health care costs and increase equity within the health system.
  • Setting national performance standards – aiming to drive quality improvements and empower consumers to make more informed health care choices.
  • Rejecting Denticare and Medicare Select – NHHRC proposals which would have increased costs without delivering consumer benefits.
  • Changing governance structures – aiming to provide greater transparency and accountability and increase community confidence in the health system.

The gaps

However, there remain a number of gaps in the Government’s approach to reform which, unless addressed, will undermine the overall effectiveness of the proposed changes. These include:

  • The lack of an underlying philosophy or set of principles – over the past few years of inquiries and public hearings, the community was not consulted about the principles that should guide our health system. This makes it difficult to assess whether or not the reforms reflect community values and expectations.
  • Continuing confusion over governance issues – there are still no clear lines of accountability between federal and state/territory governments, Cabinet, ministers, boards, officials and clinicians.
  • The improvements in transparency are only partial – a missed opportunity to use new technologies (Web 2.0) to drive community engagement, accountability and a focus on outcomes rather than inputs.
  • No single pool of funding for health care – against the advice of almost every health economist, the funding silos remain.
  • No systematic approach to consumer payments – while the reforms make major changes to the ways in which governments fund health care, they do not address the problems inherent in our current approach to direct consumer payments.
  • Failure to address the problems with dental, Indigenous and mental health care – these three key areas, currently failing the community, have been largely ignored by the reforms.
  • Continuing to support anti-competitive practices and pandering to special interest groups – medical professional and pharmacy groups, the pharmaceutical and private health insurance industries, and state bureaucracies, continue to receive unwarranted subsidies and special consideration, contrary to community interests.
  • Maintaining current workforce boundaries – the reforms do not address the archaic workforce structure and rigid professional boundaries of our current health workforce.
  • Failing to transform Medicare into an active purchaser of health services which delivers greater benefits to consumers.
  • Ongoing funding for the Private Health Insurance (PHI) rebate – a $4.5 billion black hole in the health budget which has been left alone by the reforms.

Of course, well-designed reforms are only part of the story – implementation is just as important, as became clear during the previous Rudd term of government. The barriers to successful implementation were strong, due to an unfavourable Senate (relevant for some measures which require legislative change), a Federal Health Department with a poor record of driving health system reform and ongoing pressure to back down on some measures from interest groups with a vested interest in maintaining the status quo. The newly-elected Gillard government must identify entrenched cultures and recognise the need for change management processes throughout the health system if it is to surmount these challenges.

Mythbuster: Australia’s health system is fairer than most? Not for some

A 2008 Commonwealth Fund[1] survey of chronically ill adults in Australia, Canada, France, Germany, the Netherlands, New Zealand, the United Kingdom, and the United States found that over a third (36 per cent) of Australians with chronic conditions reported problems with accessing health care due to cost. This was higher than participants from any other country, apart from the US.

Source:  Schoen, C., Osborn, R., How, S.K.H., Doty, M.M., and Peugh, J. (2008) In Chronic Condition: Experiences of Patients with Complex Health Care Needs, in Eight Countries, Health Affairs November 2008.

Policy ideas

Idea #1 – Health credit cards and a single safety-net

a) Addressing consumer payments

Consumer payments are a major gap in the government’s health reforms. The reforms fail to deal with direct consumer payments for health care, despite the fact that these payments make up the third largest source of health funding in Australia and influence both how consumers access health care and which goods and services they access. The current ad hoc system of co-payments is inefficient, unfair and often does not reflect the actual cost of health care to the community.

There is strong evidence that consumer payments are causing financial hardship among some groups of consumers and restricting their access to cost-effective forms of health care. The safety-nets put in place to address these inequities are themselves complex and difficult for consumers to understand. They often do not target those most in need and also create perverse incentives to use less efficient forms of care. For example, someone with a sports injury may pay more for a course of physiotherapy treatment than they will for anti-inflammatory and pain relief medication – even when the physiotherapy treatment is more cost-effective.

A better approach to consumer payments for health services would be to give all consumers a ‘health credit card’ to pay for health care without upfront payments.

A single health safety-net should also be created to cover medical, dental, pharmaceutical and allied health care and target consumers who have difficulty affording health care. These two strategies would significantly improve both the fairness and efficiency of our health system.

b) How it works

The federal government issues all consumers with a health credit card to pay for all health goods and services with no cash upfront. The government assumes responsibility for paying providers the full amount of their fees for all health goods and services paid for by the health credit card. The government deducts any applicable subsidies (e.g. Medicare rebates) and sends the consumer a consolidated bill for the outstanding gap amounts.

Consumers have the option of making one payment for the total amount of all consolidated out-of-pocket costs for the given period or paying in instalments (similar to credit card payments) with minimal or no interest. Consumers are required to make a minimum monthly payment but the amount of this payment would be indexed to consumers’ ability to pay, and would be capped at a pre-determined level (for example 10 per cent of after-tax income per annum), so that no consumers would face financial hardship due to their health and medical bills. This would ensure that no consumer faces financial barriers to accessing health care and would create efficiencies by shifting complex isolated administrative processes from consumers and providers to a more streamlined process undertaken centrally by a government agency.

How it works: example

Lucy injures her leg skiing and requires treatment from a number of private health care providers, including a GP, specialist physician, exercise physiologist and osteopath. In addition to this, she requires prescription pain relief medication, has a number of x-rays and uses an ambulance service. The total cost of her care for the accident is over $3,000. She pays for all these goods and services with her health credit card with no up-front payment. This means that she can access the care she needs immediately, despite not having sufficient funds available. At the end of the month she receives a consolidated bill for the total out-of-pocket costs for her treatment of $600. As Lucy is a student on a low income she is able to pay off this debt in low monthly instalments of $80.

Mythbuster: Medicare means that we pay for less of our health care than people in other countries, right?

Actually, Australians contribute more to their own health care expenses than do citizens of many other countries, including the UK, Japan, Germany, France and the Netherlands. Even Americans, though they pay more overall than Australians for their health care, contribute only 13 per cent of their total health funding through direct payments (compared with over 17 per cent for Australians). [1]

Source: Organisation for Economic Cooperation and Development Health Data 2008.

Idea #2 – Regional health authorities and citizen juries

a) Addressing the distribution of resources

Australia’s current health funding system distributes resources primarily based on the location of providers rather than the needs of communities. This has resulted in an unequal allocation of Medicare and PBS funds, Medicare Safety Net funds, and the take-up of public subsidies for private health insurance across the population.

The allocation of resources differs markedly according to geographic location and often the people who need health care the most receive the least. People in large capital cities receive 23 per cent more combined Medicare and PBS funding than those in rural or remote areas, despite the fact that they are healthier.

Fast facts: where is health spending most needed?
Major cities
Regional (outer)
Very remote
Life expectancy at birth (males) 79 77 77 72
Life expectancy at birth (females) 84 83 82 78
Source: Australia’s Health 2008 AIHW

Redistributing funds to regions based on need would address the current imbalance by targeting resources to the areas that are currently most neglected. The Labor reforms provide some scope for the regionalisation of health services through the establishment of Medicare Locals (MLs), regional primary care organisations which will be responsible for some population health functions.

Citizens’ juries are a form of participatory democracy which involves selecting a random sample of the relevant population and asking them to deliberate, as citizens, on issues such as how health resources should be allocated 4. The process involves giving them good information on the issues for debate; encouraging them to question experts to clarify that information or seek more information; and then giving them time to reflect and to make recommendations on the best use of health resources.

Using citizens juries to influence priorities for funding in each region would enhance consumer and citizen input into the health system and increase accountability for health funding.

b) How it works

Medicare Locals would be given a set budget for providing all health care in their regions. Budgets would come from a national pool of funds created by combining all current health funding, from federal, state/territory and local government sources. This would be distributed equitably by a new national agency on the basis of evidence about health care needs. Publicly available information on local health needs and health spending (regularly collected and updated in accordance with national standards) would inform decisions by Medicare Locals about the appropriate allocation of services and resources in that region.

However, under the federal government’s current reform agenda, Medicare Locals will provide only primary care services and have a very limited budget-holding role in areas such as after-hours care. They will take on responsibility for services such as health promotion and some chronic care packages but the majority of primary care will continue to be funded via MBS/PBS budgets. This means that Medicare Locals will not have the capacity to address the structural unfairness of the way we allocate health resources.

By strengthening Medicare Locals, giving them total responsibility for the health care needs of a defined population, they would have a genuine opportunity to address the geographical inequities in our current health funding system. This would also improve clinical co-ordination, data collection, health service planning, and the accountability and efficiency of health resource allocation.

Each Medicare Local would be required to establish a citizens’ jury to provide advice on the community’s priorities for resources allocation within the region and its underlying values for the delivery of health care. Citizens juries would not have a decision-making function or replace elected and appointed officials in Medicare Locals. However, they would provide these officials with information about the principles that the citizens believe should underpin their health services and on important issues such as resource allocation and competing priorities.

How it works: example

A Medicare Local is established in the Mallee region in North West Victoria. It is allocated a budget with which it needs to provide health care for its citizens. In order to determine principles for the provision of health care and priorities for funding, a Citizen’s Jury is established comprising 15 community members with a mix of age, gender, socio-economic status and ethnicity. The jury meets several times and is given information by local services and experts about the health status of the community, the cost of different forms of health care and the potential for health gains. The Jury determines values and principles for the allocation of health care resources which include fairness, efficiency and transparency. In terms of funding priorities, the Jury advises that a greater emphasis be placed on prevention, including addressing the social determinants of health. This advice is provided to the ML which undertakes to report back to the Jury on how its views have been reflected in its approach to health service provision. The ML then develops a plan for meeting the health care needs of the region in the context of the community’s values and priorities. This includes reallocating funds from current acute care programs to Indigenous health, mental health and health promotion services.

Idea #3 – Consumer controlled health budgets for people with chronic conditions

a) Problem: poor chronic disease management

One of the major challenges facing the Australian health system is to effectively manage the care of people with chronic illnesses. Caring for someone with a chronic condition requires a higher level of coordination and management compared with the care required for an acute health problem.

Chronic illnesses persist over time and often require care involving a mix of services and providers including, often, non-medical forms of care such as home-help, performed by non-professionals or family. The treatment and support options for people with chronic conditions are not always straightforward and may vary considerably depending upon individual preferences and circumstances.

Our major health programs, such as Medicare, have been developed for a community with predominantly acute care needs. They tend to be administratively complex and inflexible and are not well designed to meet the complex and varying needs of people with chronic illnesses. A traditional government program structure cannot operate without being able to define the range of services relevant for each condition in advance and to anticipate the varying needs of consumers with chronic conditions. The result is that people with complex care needs often end up making choices dictated by what fits the system rather than what is best suited to them. The system puts consumers in a passive and disempowering position, contributing to a poorer quality of life.

Consumers can be given greater flexibility and control over their care by giving consumers (or their carers) greater control over their care budgets. It would also help them become more engaged in their care and to obtain more individualised services which better meet their needs, providing incentives for the efficient use of health resources and the development of innovative strategies. 5

b) How it works

People with chronic illnesses whose needs are not being met by current services would be able to apply for a consumer-controlled health budget. When a budget is allocated, based on current cost of services, a plan would be developed by the consumer, together with a care coordinator (for instance, a GP or a social worker). This plan would detail options for allocating the budget, care goals and outcomes. The consumer (or carer) would then be able to allocate the resources as they wish, within guidelines, as long as they contribute towards meeting the goals set. The goals and outcomes would be regularly reviewed by the care coordinator, in conjunction with the consumer (and carer). Clearly, it would also be important to ensure that consumers (and/or their carers) were willing and able to take on the additional tasks and responsibilities required to manage their own budgets. For some consumers the potential benefits may not outweigh the effort involved in taking on this role and they should be entitled to receive high quality care managed in the current manner. It is also important to recognise and put into place mechanisms to avoid the potential for exploitation of consumers, in particular those who may be more vulnerable due to issues such as cognitive impairment, by carers, family members or service providers who may seek to benefit personally from greater control over a health budget at the expense of the consumer.

How it works: example

Paul and Felicity have a six year-old son with developmental delay and challenging behaviours. They are entitled to respite care for six hours a week however have had problems finding a regular carer from the government’s approved list. Their preferred carer is Felicity’s mother, however, she lives interstate. Currently they cannot use their respite care budget to pay Felicity’s mother’s travel costs. However, with a consumer-controlled health budget, Paul and Felicity can spend their budget for respite care on a monthly airfare for her to come and look after their son one weekend a month while they go away.

Quick wins: Three fixes in three minutes

Combining pragmatic politics and progressive policies

If major health system reform is all too hard, here are three practical solutions to long-standing problems with our health system which successive governments have failed to address.  They can all be implemented without major structural changes and with minimal political risk.

Quick win #1 – Deal with the doctor dilemma

The problem: Too many doctors in some areas and not enough in others. For example, there are an estimated 335 doctors per 100,000 population in major cities and 148 in outer regional areas. 6

One reason for this is that the Government restricts the overall number of provider numbers (allowing doctors to provide Medicare-subsidised services) but is unable to control where doctors practice. This means doctors congregate in areas where they live, such as leafy green suburbs in major cities. This leaves many communities with a doctor shortage, in particular in rural, remote and outer-urban areas.

Governments have previously been reluctant to attach provider numbers to specific areas (which would greatly improve workforce planning) as the medical profession has argued that this would violate a clause in the Australian Constitution prohibiting civil conscription for doctors (and dentists). Other methods employed by governments to attract doctors to areas of need (such as bonuses for working in rural areas) are expensive and have only limited effectiveness.

The politics: The Government needs to juggle the needs of communities with doctor shortages with the political and public relations muscle of the Australian Medical Association (AMA) which vigorously opposes any restrictions on where doctors can practice.

The solution: Rather than tying new provider numbers to areas of workforce shortage (thus effectively forcing doctors to work in specific areas), the Government could simply restrict new provider numbers in the small number of areas of over-supply. This is a less coercive measure than compelling doctors to practice in specific areas (doctors retain the freedom to practice wherever they like, except in areas of over-supply) and therefore less likely to be opposed by the AMA or interpreted as comprising civil conscription. The result would be a more equitable allocation of the medical workforce without the need for increasingly high subsidies for doctors to work in areas of need.

How it works: Have a condition attached prohibiting the doctor from working in areas of demonstrated over-supply. Many provider numbers (for example those allocated to overseas-trained doctors) already have conditions attached to them so this would simply be an extension of the current approach to managing medical workforce supply.

Winners: Communities currently under-supplied by doctors. This includes almost everywhere apart from affluent inner-city areas.

Losers: Newly qualifying doctors wishing to practice in areas of over-supply.

Quick win #2 – Re-hash the rebate

The problem: A costly and inefficient rebate for private health insurance which costs more every year and delivers very little in terms of increased access to health care.

The politics: The rebate is generally agreed by health economists and stakeholders to be a public policy disaster. However, as much as many people resent being forced into taking out PHI, the rebate is seen as money in their pockets and removing it may cause a voter backlash.

The solution: Give private health insurance subsidies directly to consumers to spend on their choice of health care.

How it works: The funds currently going into the PHI rebate – approximately $4.5 billion per year – would be redistributed to low and middle-income households to spend on the health care of their choice. This would provide approximately $600 a year for each household earning less than $200,000 a year (this is based on 2007/08 figures from the Australian Bureau of Statistics publication Household Income and Income Distribution, published in 2009). These funds could be used to pay directly for health care services and products such as medical, dental, allied health and hospital costs, medicines and medical devices. It may also be used to purchase private health insurance. The subsidy could be used to pay for part or all of the health care product or service purchased. Any funds not used in one year would be saved and added to the additional contributions the next year so households would be able to build up a health fund over time, if they wished to.

The funds could be accessed via the health credit card (as proposed above). Alternatively, they could be linked to the tax or social security system or Medicare/PBS cards.

How it works: example

With three small children, Beth and Evan have frequent health care expenses but because they are living on one income, they can’t afford private health insurance premiums (even with the subsidies). Mostly, they struggle to even afford the gap payments for GP visits and medicines. Currently, they gain nothing from the PHI rebate but under this system would be able to use their subsidy to pay for the GP and essential medicines.

Winners: Consumers who would have greater choice in how they spend their health care subsidy.

Losers: 1) Private health funds would lose the current guaranteed subsidy (although if they are providing consumers with a useful service they might not lose members); 2) People on high incomes who currently receive the PHI rebate.

Quick win #3 – Reduce adverse reactions: a MedicinesWiki

The problem: Adverse reactions to medicines are a common – and often avoidable – problem within our health system. Over ten per cent of general practice patients report experiencing an adverse drug event (ADE) in the past six months 7 and overall it is estimated that more than 1.5 million Australians suffer an adverse event from medicines each year resulting in at least 400,000 visits to general practitioners and 140,000 hospital admissions. 8

Currently, we are not using the collective knowledge and experience of consumers to improve the safety and quality of medicine use in the community. Changing the way in which consumers can access and share information about their medicines would help improve the quality use of medicines and reduce the current high rate of ADEs.

With the trend towards consumers taking a greater role in managing their own health, it is important that they have the information, support and tools to use medicines safely and appropriately. This needs to involve consumers actively sharing information with others in a collaborative and interactive environment. There is also the potential for consumers to play a greater role in monitoring the performance of new medicines on the market through providing opportunities for them to report suspected ADEs and other side-effects. We need a new model of engaging consumers in promoting quality medicine use and reducing ADEs.

The politics: Both pharmacists and the pharmaceutical industry have previously resisted moves to provide consumers with more information about medicines.

The solution: A MedicinesWiki 9 would provide a single point of contact for consumers accessing information about their medicines and reporting ADEs. This would enable consumers to obtain information about their medicines and provide an interactive source of information from consumers on their experiences in taking the drug.

How it works: The Government would establish and host a MedicinesWiki and actively seek consumer contributions. The Wiki would contain information about medicines (similar to Consumer Medicine Information) as well as provide opportunities for consumers to contribute their experiences of medicines and to ask questions. Over time, the Wiki would become a source of information on medicines for consumers and for health professionals and regulatory bodies interested in identifying problems with medicine use.

Winners: Consumers, particularly those with chronic conditions.

Losers: None, although some pharmacists and doctors may see this as reducing their authority.

So crazy it just might work…

Prediction markets for health care

Choices about medical treatment can be some of the most important decisions we ever have to make. However, in our current model of health care, consumers typically get only one opinion on diagnosis and treatment options from their doctor. In some cases consumers may seek a second opinion but it is very rare for consumers to seek any additional views, partly because it is so time- and resource-intensive. Given evidence that there is considerable variation in clinical practices among doctors, this model has significant limitations. Where there is clinical variation, not all the experts can be right.

A better approach would give consumers facing potentially life-changing decisions access to the most comprehensive information possible. This is difficult within our current model of medical practice as relevant knowledge is spread among large numbers of people and consulting them individually is not practical.

One solution is prediction markets. Prediction markets provide one mechanism for cost-effectively capturing the knowledge held by a large number of individuals. They work as a betting exchange where people are able to bet on the outcome of a specific event. This creates incentives for individuals with knowledge of a particular issue to participate 10.

In practice, prediction markets have proven to be more successful in predicting outcomes than consultation with experts. Companies such as Google use this mechanism as part of their corporate planning processes. Setting up a prediction market for health care would give consumers the opportunity of accessing knowledge from potentially hundreds or thousands of doctors and using this to inform their health care choices.

How it works: Example

Rani has been diagnosed with a melanoma on her back. She has received advice from two different specialists on treatment options. This advice differs according to the recommended margins of the incision and the follow-up treatment. Like many treatment options, these choices involve balancing benefits and risks and neither choice is clear cut. Rani would like to obtain information from a broader range of doctors with expertise in this area. Via a prediction market she asks doctors to bet on the chances that her cancer will recur within a defined timeframe given different treatment scenarios. Doctors are then able to bet on the outcome of different scenarios and those who turn out to make correct predictions benefit financially. Rani is able to use the information obtained via the prediction market to inform her choice of treatment.


In its first term in office, the Labor Government did more to progress health reform than the previous government managed in four consecutive terms. It tackled some of the most important structural barriers to reform and managed to gain COAG’s agreement to major funding and governance changes.

However, the failure of the government to articulate the principles underpinning the proposed changes means that the reform agenda lacks coherence and a clear link with community values. Overall, the reforms concentrate on the funders of health care and ignore important consumer issues, including co-payments for health services, and fail to address key areas requiring reform, such as health workforce practices and the need for a more equitable distribution of health resources. The Rudd-Gillard government also left some glaring policy failures of the Howard era untouched, such as the private health insurance rebate.

The challenge for this new electoral term will be for the minority Gillard Government to deliver on the promises of reform while addressing the gaps in the current agenda. Tackling the vested interests of professional and industry groups will be the key to driving reforms in these areas. Ensuring consumers and consumer interests are at the centre of all reform efforts will be essential if the next three years are to result in real improvements in health care rather than simply administrative changes which shift costs from governments to consumers.

Photo Credit: Selma Broeder,


  1. These included: the National Primary Care Taskforce; the National Health and Hospitals Reform Commission; the Preventative Health Care Taskforce and COAG processes.
  2. Although some important issues, such as the private health insurance rebate, were excluded from these inquiry and consultation processes.
  3. National Health and Hospitals Reform Commission (2009) A healthier future for all Australians – National Health & Hospitals Reform Commission Final Report June 2009. Available online:
  4. More information on citizens’ juries, including a free ebook on how they work in practice, can be obtained from
  5. The National Health Service in the UK is currently trialing a similar model (called personal health budgets). More information about this trial can be found at
  6. Australian Institute of Health and Welfare (2008) Rural, regional and remote health: indicators of health system performance. Available online:
  7. Miller, G.C., Britt, H.C. and Valenti, L. (2006) ‘Adverse drug events in general practice patients in Australia’, Medical Journal of Australia, 184 (7): 321-324.
  8. Roughhead, E.E., Lexchin J. (2006) ‘Adverse Drug Events: counting is not enough, action is needed’, Medical Journal of Australia, 184 (7): 315-6.
  9. Wikis are being increasingly used in other areas of health and medicine. An example of a Wiki on Diabetes is available at
  10. One useful introduction to the features of prediction markets is: Watkins, J.H. (2007) ‘Prediction Markets as an Aggregation Mechanism for Collective Intelligence’, Proceedings of 2007 UCLA Lake Arrowhead Human Complex Systems Conference, Lake Arrowhead, California. Available online:

AUTHORS(S): Jennifer Doggett

Sharing the luck

Human Rights at the cross-roads

1 Comment 13 June 2010

by Phil Lynch

The promotion and protection of human rights in Australia is at the cross-roads.

The next three years provide an opportunity for the Gillard Government to give real substance to Australia’s promise to be a ‘principled advocate of human rights for all’. 1

Alternatively, the next three years could see Australia squander much of its human rights capital, with recent events such as the asylum freeze and deaths in police custody showing that we must always remain vigilant against human rights regression.

May 2010 alone witnessed historic progress on Indigenous rights and gender equality, with the establishment of the National Congress of Australia’s First Peoples and amendments to modernise the Sex Discrimination Act 1984 (Cth). That month also witnessed the unlawful suspension of asylum claims from Afghanistan and Sri Lanka, a Federal Government announcement that the Curtin detention centre would be re-commissioned, and a decision to deport a long-term Australian resident in direct contravention of a request by the UN Human Rights Committee not to do so.

What has brought us to the cross-roads is the Labor Government’s response to the report of the National Human Rights Consultation, its new ‘Human Rights Framework’. 2 It has been variously described as ‘positive and practical’, 3 ‘icing without the cake’ 4 and ‘just a damp squib’. 5

The story so far

Human rights have not always been a political football. Just over 60 years ago, Labor Attorney-General and foreign minister Herbert ‘Doc’ Evatt presided over the UN General Assembly as it adopted the historic Universal Declaration of Human Rights. Evatt rightly predicted that ‘millions of people all over the world would turn to it for help, guidance and inspiration’. 6 Conservative leader Winston Churchill advocated its adoption into the British legal system, calling for a charter of human rights ‘guarded by freedom and sustained by law’. 7

Some 20 years later, the UDHR was enshrined as international law in two major treaties: the covenants on civil and political rights, and on economic, social and cultural rights. Labor Prime Minister Gough Whitlam signed both treaties within the first two weeks of his election. Malcolm Fraser, his Liberal successor, ratified both covenants. The importance of the legal recognition and protection of human rights was one of the few issues on which, at the time, both men agreed.

Despite this, and despite Australia being a consistent champion of human rights on the international stage for the next 40 years, no Australian leader has taken the further steps necessary to protect those rights in Australian law.

National Human Rights Consultation

Launched on December 10th 2008, the 60th anniversary of the Universal Declaration of Human Rights (UDHR), the National Human Rights Consultation asked Australians three simple questions:

  • Which human rights should be promoted and protected in Australia?
  • Are these rights sufficiently promoted and protected?
  • How could we better protect and promote human rights?

The consultation was one of the most extensive exercises in participatory democracy in Australian political history. The independent Committee concluded that ‘after 10 months of listening to the people of Australia, [there is] no doubt that the protection and promotion of human rights is a matter of national importance.’ 8

Fast facts

The Consultation Committee received over 35,000 public submissions, the largest response to a public consultation exercise ever undertaken in Australia.

It hosted 66 roundtables in 52 metropolitan, regional and rural locations. It also commissioned a national phone survey and focus group research.

Participants were able to share their views by making a written submission online or by post, attending a community roundtable discussion, or posting a comment on an online forum.

The consultation process concluded with three days of public hearings, held in Parliament House from 1-3 July 2009.

The Committee’s report, released in October 2009, made five key findings:

  1. Human rights matter deeply to Australians. They resonate with Australian democratic values, the rule of law and our sense of a fair go. There is strong support for the promotion and protection of all human rights, including economic, social and cultural rights, such as the rights to education, housing and the highest attainable standard of health.
  2. Our democratic and legal institutions do not provide comprehensive or even adequate protection of human rights. While our institutions are strong, the patchwork quilt of human rights protection is missing pieces and this is felt most keenly by the marginalised and vulnerable. 9
  3. Human rights are not enjoyed fully or equally by all Australians. Both in fact and in law, many groups within Australia experience profound disadvantage, including the homeless, people with mental illness, Aboriginal Australians, asylum seekers and children with disability. There is a strong view that ‘we could do better in guaranteeing fairness for all within Australia and in protecting the dignity of people who miss out’. 10 Independent polling found that up to 75 per cent of Australians support stronger measures to protect the human rights of people with mental illness, the elderly, Aboriginal Australians and people with disabilities.
  4. There is a need for better education about human rights within the community. 11 Human rights also need to be better understood within government and given greater consideration in the development of legislation and policy. 12 Instilling a human rights culture in the federal public sector is integral to better protect and promote human rights in Australia. 13
  5. There is very strong support for a comprehensive national Human Rights Act. Of the submissions which considered the issue, 87 per cent supported a Human Rights Act, while independent polling found 57 per cent support enactment, and only 14 per cent oppose it.  The Consultation revealed that Australians understand the fundamentally democratic role of the judiciary in protecting human rights and the rule of law. Some 86 per cent of us consider that government has a high level of responsibility in relation to the promotion and protection of human rights; 84 per cent also recognise the significant responsibility of the courts in this regard.

In response to these five key findings, the Committee made 31 recommendations.  The most significant and vigorously debated recommendation was that:

Australia should adopt a comprehensive, enforceable Human Rights Act, the aim of which should be to promote a dialogue about human rights between parliament, the executive, the courts and the community.

The Committee recommended that this Act be modeled on the ‘legislative dialogue’ model of human rights protection, reflected in instruments such as the Victorian Charter of Human Rights and Responsibilities Act 2006, the ACT Human Rights Act 2004 and the United Kingdom’s Human Rights Act 1998. Under the Act proposed, human rights would be able to be tested in the courts and enforceable, but parliament would retain sovereignty and ‘the final say’.

The Committee was persuaded by the evidence that a national Human Rights Act would promote more accountable government, improve public services, address poverty and disadvantage, and enshrine fundamental unifying values.


The report confronted and comprehensively debunked myths about a Human Rights Act.  The evidence demonstrated a Human Rights Act would not:

  • result in a substantial increase in litigation
  • diminish parliamentary sovereignty or the constitutional balance of power between the executive, legislature and courts
  • protect minority rights at the expense of the majority
  • undermine religious freedoms

The Government response – no Human Rights Act

On April 21st 2010, the Government released ‘Australia’s Human Rights Framework’ in response to the National Human Rights Consultation Committee report. Launching the Framework, the Attorney-General Robert McClelland MP stated that it contains ‘positive and practical’ measures and ‘reflects the key recommendations made by the Consultation Committee, including the need for greater human rights education’. 14

Significantly, however, the Framework does not include a commitment to a Human Rights Act. The Attorney-General stated that such an Act would be ‘contentious’ and that ‘the enhancement of human rights should be done in a way that as far as possible unites, rather than divides, our community’. 15

The failure to commit to a comprehensive Human Rights Act is a missed opportunity to strengthen Australia’s democracy and build a fairer, more inclusive community. It flies in the face of evidence, a strong democratic mandate and the status of human rights as universal minimum standards which must be promoted and protected by all means necessary.

The basis upon which a Human Rights Act was rejected – that it would be contentious and divisive – was spurious and an abdication of leadership.  That conclusion failed the test of political leadership, vision and resolve. Far from being divisive, a Human Rights Act would unite us through legal protection and institutional strengthening of those Australian democratic values we hold in common. As the Apology to the Stolen Generations demonstrated, political leadership and vision can unite people, even on controversial issues.  That is particularly the case when what is proposed is good, evidence-based policy that resonates deeply with our Australian commitment to respect, tolerance, fairness, freedom and the rule of law.

A Human Rights Act deferred is human rights denied. The Government’s rejection of an Act until at least 2014 is a denial of the many benefits which demonstrably accompany human rights legal protections. Evidence and experience from Victoria, the ACT and the UK, each of which have ‘dialogue-model’ Human Rights Acts, demonstrate that a national Act would promote more accountable government, 16 improve public services, 17 address poverty and disadvantage, 18 and enshrine fundamental unifying values. Instead, the homeless, the elderly, people with mental illness and children with disability — all of whom have been beneficiaries of human rights laws in comparative jurisdictions — must now wait at least another four years before their human rights are adequately protected and promoted at the national level.

What difference would a Human Rights Act make?

Case Study 1: Threatened eviction of father and three year-old son from public housing breaches Human Rights 19

A man and his three year old son who lived in a home owned by the Director of Housing were threatened with eviction. The home was leased to the man’s late mother in 1998 by the Victorian Department of Housing and he continued to occupy the premises after his mother died from cancer. The Director of Housing applied for a possession order under the Residential Tenancies Act. The case was brought before the Victorian Civil and Administrative Tribunal which found the Director’s decision to seek eviction without any justification or evidence was in breach of the right to family and home under the Victorian Charter of Rights. This case will affect 70,000 public housing applicants in Victoria.

Case Study 2: Child with autism gains entitlement to disability assistance

A 13 year-old boy with Asperger Syndrome was ineligible to receive disability support services because the Victorian Department of Human Services had an inflexible policy stating that Autism Spectrum Disorders do not constitute a ‘disability’. The child’s mother applied for a review of the government decision based on the human rights to respect for private and family life and the best interests of children. The government settled the case by amending policy to acknowledge Autism Spectrum Disorders as disabilities, thereby entitling Victorians with autism to disability assistance. The government backed this announcement by $2.75 million in additional funding.

Case Study 3: Better solutions for young people with brain injuries20

A rehabilitation centre operating as part of a public hospital wanted to discharge several young people with acquired brain injuries because their two-year contracts at the centre had ended. However, the only alternative care facilities available were aged-care facilities, which would not provide the environment or support necessary for the young people to continue their recovery.

A disability advocate raised the Charter with the rehabilitation centre, which agreed not to move the young people until it had considered its obligations under the Charter. The centre took a collaborative approach and consulted with the young people and their families. The result was that all five young people were placed in accommodation that was acceptable to them, their families and the rehabilitation facility.

Using the Charter opened a space for creative, tailored solutions to be developed.

The campaign for a Human Rights Act that befits, protects and unites us has only just begun.

Australia’s new Human Rights Framework

The absence of a Human Rights Act aside, the new ‘Human Rights Framework’ contains several significant and valuable commitments. These commitments include:

  • a Joint Parliamentary Committee on Human Rights, which will be mandated to review legislation and conduct inquiries on human rights issues
  • legislation requiring that each Bill introduced to parliament be accompanied by a statement which assesses its compatibility with the seven core human rights treaties to which Australia is a party
  • a review of legislation, policies and practices for compliance with Australia’s international human rights obligations
  • the development of draft exposure legislation to harmonise and consolidate Commonwealth anti-discrimination laws, and
  • enhanced human rights education, both for the community and the public sector.

Appropriately conceived and effectively implemented, these measures will improve the development of laws, policies and practices, and help ensure that human rights are properly considered in legislative, parliamentary and executive decision-making processes.

So, how can we ensure that these benefits are realised?

Parliamentary scrutiny and protection of human rights

The Federal Government has moved quickly to implement the recommendations relating to parliamentary protection of human rights, introducing the Human Rights (Parliamentary Scrutiny) Bill 2010 to the House of Representatives on June 2nd 2010.  The Bill establishes a Joint Parliamentary Committee on Human Rights to:

  • examine all Bills, legislative instruments and existing Acts ‘for compatibility with human rights’ 21;
  • inquire into ‘any matter relating to human rights which is referred to it by the Attorney-General’ 22

The powers, proceedings and modalities of the Committee are to be ‘determined by resolution of both Houses of Parliament’.

Essentials for effective parliamentary oversight

For the Committee to fulfill its functions effectively, it should:

  • be given expanded functions, namely:
  • ‘to inquire into any matter relating to human rights which is referred to it by resolution of either House of Parliament’.  This would enhance the independence and effectiveness of the Committee and ensure that its capacity to conduct thematic inquiries is not solely determined by the Government of the day; and
  • ‘to monitor and report on the implementation of the recommendations and views of UN human rights bodies’.  This would enable parliament to play an active role in monitoring, overseeing and following up on the implementation of recommendations and decisions of international human rights mechanisms.
  • be given broad and permissive powers. The broad mandate and modalities of the UK Joint Committee on Human Rights, recommended by the Council of Europe as an example of best practice in parliamentary human rights scrutiny, is one of its key strengths. 23
  • conduct its own rigorous, evidence-based independent analysis in assessing and reporting on the human rights compatibility of legislation, to ensure effective scrutiny of Bills. It should not just rely on the Government’s Statements of Compatibility (see below).
  • have the power to call for submissions, convene public hearings and examine witnesses.  This is imperative if the Committee is to facilitate an “increased level of community engagement” with the parliamentary dialogue and “play a key role in influencing the accessibility and utility of this dialogue”.’
  • be given sufficient time to conduct inquiries and produce reports so as to enable community engagement and meaningfully inform parliamentary debate. This is particularly important where a Bill raises major human rights issues, limits or intrudes on human rights significantly, or is developed hastily.
  • have an adequately resourced secretariat with the requisite human rights law experience and expertise.

Statements of compatibility

The Human Rights (Parliamentary Scrutiny) Bill 2010 also requires Ministers to provide a ‘Statement of Compatibility’ to accompany all new bills.  This Statement must assess whether the Bill is compatible with the human rights set out in all seven core UN human rights treaties to which Australia is party. 24

The Bill is silent on the nature, scope and detail of this assessment.

If Statements of Compatibility are to fulfil their purpose of ‘improving parliamentary scrutiny of new laws for consistency with Australia’s human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development’ 25, they should have the following features:

  • human rights should be considered, and Statements of Compatibility prepared early in the policy development process. 26
  • statements must include rigorous analysis of the human rights issues and interferences raised by a Bill.  Statements of Compatibility should explain limitations in an evidence-based manner which demonstrably justifies the intrusion on rights.
  • the detail and length of Statements should be commensurate with the human rights implications of the proposed legislation.
  • in considering the scope and content of the seven core human rights treaties, ‘proper consideration [should] be given to international human rights law and the judgments of domestic, foreign and international human rights courts, bodies and tribunals’. 27
  • this would encourage and enable both policy-makers and parliamentarians to draw on extensive and illuminating international and comparative human rights jurisprudence.
  • statements of Compatibility should be tabled with the Second Reading Speech and Explanatory Memorandum of a Bill and also included in Hansard.  This will ensure that they meaningfully inform parliamentary dialogue and debate and are accessible to the public.

Review of legislation, policies and practice

The Framework contains a significant commitment to review existing ‘legislation, policies and practice for compliance with human rights’ standards. Priority should be given to amending those laws and practices which have been the subject of UN treaty body recommendations, together with the Human Rights Consultation Committee, the Australian Human Rights Commission and reputable human rights organisations, including:

  • anti-discrimination legislation, policies and practices;
  • national security laws, particularly those relating to control orders, preventative detention, and the powers of ASIO;
  • legislation providing for immigration detention, offshore processing, and the rights of refugees and asylum-seekers; and
  • the Northern Territory Emergency Response legislation.

Harmonisation and consolidation of Commonwealth anti-discrimination laws – or a sweeping new Equality Act?

Equality is a pre-eminent Australian value and the bedrock of a fair, cohesive and productive society. Some of the most pressing social issues of our time – including Indigenous disadvantage, violence against women and poverty – are both causes and consequences of inequality. Prime Minister Rudd recognised that inequality contributes to ‘poorer educational results, lower productivity, worse health outcomes, shorter working lives and lower workforce participation.’ 28

The law can and should play a central normative and educational role in advancing equality for all Australians. This requires a shift away from an outdated and ineffective complaints-based, remedial model of anti-discrimination laws. 29  Australian law should promote a rights-based model of substantive equality which emphasises equal outcomes and addresses structural causes of inequality. For over 20 years detailed, high-level reports have recognised the significant shortcomings of our anti-discrimination laws and called for greater legal protection of equality. 30

These include that they:

  • are reactive and complaints-based
  • fail to actively promote equality or address systemic discrimination 31
  • do not address all grounds of discrimination or multiple discrimination 32, and
  • are ineffective in areas that have been granted permanent exemptions 33

The Government’s Human Rights Framework commits to ‘harmonise and consolidate Commonwealth anti-discrimination laws to remove unnecessary regulatory overlap, address inconsistencies across laws and make the system more user-friendly’. 34 The so-called ‘Consolidation Project’ will be an opportunity missed if it is restricted in scope to issues of regulatory overlap and inconsistencies.

A new Equality Act: a robust and comprehensive legal framework which promotes real equality and addresses all grounds of discrimination

The Consolidation Project provides a unique opportunity to modernise and strengthen our anti-discrimination regime. The Federal Government should use this opportunity to consult on and enact a single, comprehensive Equality Act to:

  • ensure that our equality laws meet the standards enshrined in the international human rights treaties to which Australia is party
  • proactively and progressively contribute to a fairer Australia by requiring the active promotion of substantive equality
  • adopt a legal framework that not only prohibits individual instances of discrimination, but also provides for a positive duty to prevent discrimination, and
  • ensure that equality is linked to governmental and administrative decision-making, performance management and accountability frameworks.

A single, comprehensive Equality Act should:

  1. create a legal right to substantive equality
  2. provide comprehensive coverage through a non-exhaustive list of protected attributes – Commonwealth anti-discrimination law currently only prohibits discrimination on the basis of age, sex, race and disability
  3. reverse the onus of proof in discrimination cases. It is notoriously difficult to prove discrimination.  If the complainant has made out a prima facie case that discrimination has occurred, the onus should be on the respondent to show that the conduct complained of was justified 35
  4. provide mechanisms to identify, target and address systemic discrimination. Under the new Victorian Equal Opportunity Act 2010, for example, the Victorian Equal Opportunity and Human Rights Commission has the power to issue guidelines, conduct education and research, and conduct investigations and public inquiries into serious instances of systemic discrimination 36
  5. provide for representative complaints. This would recognise that much discrimination is not individual but systemic in nature
  6. provide for temporary special measures to promote equal opportunity – this would enable positive steps to address structural disadvantage, and
  7. remove permanent exceptions that do not meet human rights standards of reasonableness and proportionality. Current anti-discrimination laws contain anachronistic carve outs, such as for clubs and religious groups, that automatically trump the right to equality without assessing the reasonableness, necessity and proportionality of doing so in any given case 37
  8. create the machinery for the measurement and transparency necessary to recognise and address inequality and provide an evidence base for further action – poor data makes it extremely difficult to effectively identify and address inequality.  All public bodies should be required to publish annual equality reports.

The strongest legal mechanism to promote the right to equality in Australia is a Constitutional guarantee of equality. Constitutional entrenchment would have significant symbolic effect and ensure that the government cannot easily amend or overturn the right to equality simply by passing legislation. Reflecting this, the federal Equality Act should include a provision mandating that, after four years of operation, an inquiry be held into a constitutional amendment aimed at enshrining the right to equality.

Human rights education

The new Framework is said to prioritise human rights education. While $12.4 million has been allocated over four years to give effect to the report’s recommendation that ‘human rights education be the highest priority’, the effectiveness of such measures will be substantially reduced without a robust enabling framework in the form of a comprehensive, judicially enforceable Human Rights Act. Evidence clearly establishes that human rights legislation and education are complementary and mutually reinforcing and that there is both a causal and consequential link between the legislative protection of human rights and the extent and effectiveness of human rights education. 38  Reflecting this, a recent Australian Public Service Commission report which discusses the importance of regulation, among other policy instruments such as education, in effecting cultural and behavioural change, found that:

Ad hoc, piecemeal action can have some impact but it is significantly more limited than a carefully planned, comprehensive, long-term approach encompassing education and information, legislation and restrictive measures. The comprehensive approach takes action in a range of areas using a range of policy tools. The effectiveness of the whole package is significantly greater than the sum of its parts. 39

The report further found that legislation can and should play a critical role in effecting cultural and behavioural change. 40

Back to the cross-roads

Effectively implemented, the new Human Rights Framework will enhance community understanding of rights, strengthen parliamentary human rights scrutiny, and instill greater respect for human rights in policy making and public services.

We have the opportunity to improve legislative protection and parliamentary scrutiny of rights. The Australian parliament will become the first in the world, for example, to scrutinise all proposed legislation against all of the core human rights treaties. The question is, how effectively and to what result?

We have the opportunity to promote equality and redress discrimination. The Federal Government’s proposal to review Commonwealth anti-discrimination laws is an opportunity to move beyond a reactive, complaints-based system and enact legislation which actively promotes substantive equality.  It will be deeply regrettable if the review only results in legislative consolidation.

The apology to the Stolen Generations two years ago displayed the power of bold, responsible political leadership and the ways in which a commitment to fundamental human rights and the alleviation of disadvantage can unite us. We should now unite around a Human Rights Act and a new Equality Act.

Photo Credit: Amanda BH Slater,


  1. Department of Foreign Affairs and Trade (2010) ‘Respecting human rights’, Australia and the United Nations. Available online:
  2. Announced by the Hon Robert McClelland MP Attorney-General on 21 April 2010.
  3. Attorney-General’s Department (2010) ‘Foreword’, Australia’s Human Rights Framework. Available online:
  4. Homeless man in Melbourne, quoted in Lynch, P. (2010) ‘Human Rights Framework: Icing without the Cake’, ABC Online, 22 April 2010. Available online:
  5. Correspondence between the author and an independent expert member of the United Nations Human Rights Committee.
  6. Hogan, A. (2008) Moving in the Open Daylight: Doc Evatt, an Australian at the United Nations, Sydney, Sydney University Press.
  7. Norman, J. and Osborne, P. (2009), Churchill’s Legacy: The Conservative Case for the Human Rights Act, UK, Liberty, p.19.
  8. National Human Rights Consultation Committee (2009) Report of the National Human Rights Consultation, p.xiii. Available online:
  9. ibid, pp.127-8.
  10. ibid, pp.343-4.
  11. ibid, pp.149-51.
  12. ibid, pp.149-51, 175, 355-6.
  13. ibid, p.186.
  14. Attorney-General’s Department, op. cit., p.1.
  15. ibid.
  16. For examples, see Brennan, G. (2008) ‘The Constitution, Good Government and Human Rights’, Paper presented at the Human Rights Law Resource Centre seminar, Melbourne, 12 March 2008. Available online:
  17. For example, see Victorian Equal Opportunity and Human Rights Commission (2010) Making Progress: The 2009 Report on the Operation of the Charter of Human Rights and Responsibilities. Available online:
  18. For example, see British Institute of Human Rights (2007) The Human Rights Act: Changing Lives. Available online:
  19. Director of Housing v Sudi (2010) VCAT 328.
  20. For more case studies, see
  21. Human Rights (Parliamentary Scrutiny) Bill (2010) ss.7a and b.
  22. ibid, s.7c.
  23. For further information on parliamentary committees, see Human Rights Law Resource Centre (2010) Parliamentary Committees and the Promotion and Protection of Human Rights, Submission to the Senate Scrutiny of Bills Committee: Inquiry into the Future Direction and Role of the Committee. Available online:
  24. Human Rights (Parliamentary Scrutiny) Bill, op. cit., s.8.
  25. Second Reading Speech, Human Rights (Parliamentary Scrutiny) Bill (2010).
  26. Australian Human Rights Commission (2010), ‘Human rights bills should strengthen protections for all Australians’, Media Release, 2 June 2010. Available online:
  27. Section 32(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is expressed in similar terms and encourages and enables both policy-makers and parliamentarians to draw on extensive and illuminating international and comparative human rights jurisprudence. For a discussion of the benefits of drawing on such jurisprudence, see Kracke v Mental Health Review Board & Ors (2009) VCAT 646, 201 (per Bell J).
  28. Rudd, K. (2009) ‘One year on from the crisis: economic and social policy challenges for Australia’, Sambell Oration address to the Brotherhood of St Laurence, Melbourne. See also United Nations (2000) Human Development Report. Available online: . The ABS has reported that ‘(a) more cohesive society is one in which communities are strong and inclusive, in which inequalities are reduced and people have a sense of belonging’. Available online: For a detailed discussion of the case for equality see Equalities Review Panel (2007) Fairness and Freedom: The Final Report of the Equalities Review. Available online: See also Goldman Sachs JB Were (2009) Australia’s Hidden Resource: The Economic Case For Increasing Female Participation. Available online:
  29. Sex Discrimination Act 1984 (Cth), Racial Discrimination Act 1975 (Cth), Disability Discrimination Act 1992 (Cth), Age Discrimination Act 2004 (Cth)
  30. See, for example, Constitutional Commission (1988) Final Report of the Constitutional Commission; Australian Law Reform Commission (1994) Equality before the Law, ALRC 69, 4.17; Senate Legal and Constitutional Affairs Committee (2008) Effectiveness of the Sex Discrimination Act 1984 in Eliminating Discrimination and Promoting Gender Equality.
  31. For example, see Senate Legal and Constitutional Affairs Committee, op. cit.
  32. Under domestic law, sex, race, age and disability are all protected attributes. This is a narrower set of grounds than under international human rights treaties, which prohibit discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Multiple (or compounded) discrimination occurs when a person or group is discriminated against on more than one grounds; for example, where an Indigenous woman is discriminated against on the basis of her sex and her race, her experience of discrimination is different than if she had been discriminated against on one of those grounds alone.
  33. For example, under the Sex Discrimination Act 1984 (Cth), sporting clubs, religious bodies and charities are permanently exempt from the operation of the Act.
  34. Attorney’ General’s Department, op. cit.
  35. Under this approach the complainant must make out a prima facie case that discrimination has occurred and the onus then shifts to the respondent to show that the conduct complained of was justified: see, for example s.809 of the Workplace Relations Act (Cth).
  36. For example, see the newly enacted Equal Opportunity Act 2010 (Vic). Of particular significance are the positive duty to eliminate discrimination (s.15), the strengthening of the Victorian Equal Opportunity and Human Rights Commission’s role in issuing guidelines, action plans, education and research (Parts 10 and 11), and the new powers of VEOHRC to conduct investigations and public inquiries into serious instances of systemic discrimination (Part 9).
  37. Many exceptions in Federal anti-discrimination legislation protect traditional social structures and hierarchies that discriminate against marginalised and disadvantaged groups. Rather than allowing a nuanced balancing of rights in cases where particular rights conflict, many permanent exceptions appear to be arbitrary, inflexible, broad, and unreasonable. For a detailed discussion of the human rights compatibility of permanent exemptions and exceptions, see PILCH and HRLRC (2009) Joint Submission to the Scrutiny of Acts and Regulations Committee on its Inquiry into the Exceptions and Exemptions in the Equal Opportunity Act 1995 (Vic), July 2009. Available online:
  38. Gerber, P. (2008) From Convention to Classroom: The Long Road to Human Rights Education, Germany, VDM Publishing, pp.270, 324.
  39. Australian Public Service Commission (2007) Changing Behaviour: A Public Policy Perspective, p.29. Available online:
  40. In Ireland, regulation is identified as having resulted in a 90% reduction in the consumption of plastic bags: see also Collins, J. et. al. (2003) Carrots, Sticks and Sermons: Influencing Public Behaviour for Environmental Goals, A Report by the Demos/Green Alliance for the UK Department for Environment, Food and Rural Affairs, p.37. Available online: Similarly, tobacco regulation is the single most effective tool to reduce smoking: see also The World Bank (1999) Curbing the Epidemic: Governments and the Economics of Tobacco Control, p.10. Available online:

AUTHORS(S): Phil Lynch