This post has been contributed by Dr Shelley Bielefeld, a member of the Law Futures Centre.

Welfare conditionality is about placing conditions on people’s access to social security payments, and it is underpinned by the rhetoric that such conditions change the behaviour of people in need who seek state support for their everyday essentials. Often such behavioural change objectives have been determined by policymakers, without the input, let alone the consent, of those to whom the welfare conditionality levers are applied. It is therefore unsurprising that the consequences of welfare conditionality measures are frequently grim for people who are subject to them.

While there has been a long history of social assistance coming with conditions attached, stretching back to the English Poor Laws, contemporary welfare conditionality programs often impose significant obligations on people claiming state support that are multi-layered and complex in terms of their consequences. In many ways, contemporary welfare conditionality turns obtaining and retaining social security payments into a labour-intensive activity. It is fair to say that welfare conditionality structures disincentives into claiming government income support.

Peter Dwyer explains how ‘very few rights to social benefits and services in contemporary welfare states are in effect “unconditional”’ and that ‘conditions of category, circumstances and conduct … routinely function to define and limit an individual’s right to social security.’ This occurs on a global scale, with Western nations eagerly pursuing a multitude of welfare conditionality programs, and it also happens in Australia.

An approach in line with Indigenous People’s rights to self-determination would see this historical approach, which has particularly impacted Indigenous Peoples, reversed and replaced with a system designed to empower people, based on deep listening to people’s experiences.

The Intervention, BasicsCard, Cashless Debit Card and the Community Development Program

Australia’s commitment to welfare conditionality has been entrenched for many decades. However, in terms of how this has impacted Australia’s First Peoples, welfare conditionality has often been intensified, especially when welfare reforms are introduced in remote Indigenous communities or in areas where a high proportion of government income support recipients are Indigenous.

Lengthy colonial power dynamics have resulted in an Australian Indigenous policymaking approach where laws and policies have often been pre-determined by government and then presented to First Nations Peoples as a fait accompli. For example, this occurred with the 2007 Northern Territory Emergency Response (the ‘Intervention’), and the lack of consultation and negotiation with Northern Territory Indigenous elders and communities has been criticised in the strongest terms, as has the trauma, shame, and stigma inflicted through this policy.

In addition to a range of other measures, the Intervention introduced welfare conditionality into Indigenous communities with compulsory income management via the BasicsCard, which has a PIN and allows cardholders to purchase ‘priority needs’ while also restricting a range of purchases from income quarantined funds. Key aspects of the government’s rationale were to reduce access to alcohol, tobacco, pornography and gambling products, and to promote ‘socially responsible behaviour’. Compulsory income management has been applied irrespective of whether people managed their finances responsibly and regardless of whether they engaged in the type of behaviours that the government attributed to Indigenous Peoples who were living in prescribed areas.

Although the BasicsCard has been portrayed by government as a supportive welfare conditionality measure, this view has routinely been contested by those cardholders who are subject to it as a compulsory measure. Furthermore, power outages in remote locations that persist over days mean that people are left without access to essentials when the BasicsCard cannot be used.

Aileen Moreton-Robinson, an Australian First Nations scholar and a pioneer of Critical Indigenous Studies, explains that measures such as compulsory income management pressure Indigenous Peoples to behave as ‘extra good citizens’. The pressure of being subject to surveillance and control by others when shopping using the BasicsCard has also been reported in government evaluation of income management: ‘we had incidences in the supermarkets where the checkout chick would tell the customer, no, oh well you are on that card, you can’t have that steak. You go and get that other steak, that cheaper one. You are wasting your money.’

Towards the end of 2020, the Federal Government announced that BasicsCard holders in the Northern Territory would all be forcibly transferred to the Cashless Debit Card (CDC), and the vast majority of these cardholders are Indigenous. This was yet another instance of the government telling Indigenous communities what they were about to do to them rather than working ‘in partnership’ with communities, as the recent Closing the Gap policy language said would be necessary and appropriate for better outcomes.

Aboriginal Medical Services Alliance Northern Territory CEO John Paterson stated that the proposed compulsory roll out of the CDC in the Northern Territory was ‘like the Howard era Intervention all over again’. Numerous Aboriginal organisations went on the public record demonstrating that they were opposed to a mandatory CDC rollout; their reasons included that there had been no previous trial of the card in the Northern Territory, research indicates that the card is ineffective, and there had been no meaningful consultation with Northern Territory Indigenous communities about the transition prior to the formulation of the law and policy change.

In December 2020 the Federal Government realised that they could not get the votes in Parliament to make the CDC a permanent compulsory measure in the Northern Territory and other sites where the CDC has been implemented. Their compromise was to extend the CDC until the end of 2022 in the earlier trial sites (where most cardholders are subject to the CDC as a compulsory measure with 80% of their fortnightly income restricted to the card), and to introduce the CDC in the Northern Territory as a voluntary measure with 50% of people’s fortnightly income restricted to the card. Income restricted to the CDC cannot be spent on alcohol, gambling or ‘cash-like’ products. However, in practical terms there are also a range of other everyday items that people have had trouble purchasing with the CDC.

Despite the government claiming that the CDC is not a racially discriminatory program, data from 3 September 2021 show that Indigenous Peoples are grossly overrepresented under the CDC. Research shows that the CDC has created a range of problems for numerous cardholders, from difficulties with basic bill payment to difficulties managing their finances. Evidence reveals that the CDC is a financial services product that is not working well for many of those who have been forced to use it, with government evaluation research indicating that 74% of people on the card wanted to exit the program.

As is the case with the BasicsCard, people on the CDC have also been impacted by power outages and other technical problems, which has rendered their social security income inaccessible at times and restricted their capacity to pay for essentials when these were needed.

Another contemporary form of welfare conditionality that greatly impacts Indigenous Peoples living in remote areas is the Community Development Program (CDP), where workfare obligations have been imposed as a condition of access to social security payments with the goal of ‘increasing employment and breaking the cycle of welfare dependency’. As is the case with the BasicsCard and the CDC, CDP is described by government as a way of supporting people in receipt of social security.

During the early phase of the program, CDP labour obligations were imposed for five hours a day and scheduled across five days of the week for working age program participants. In 2019, the labour obligations were reduced to 20 hours per week for program participants, with a little more flexibility in terms of when the labour needed to be undertaken. However, steep penalties for non-compliance with program rules have routinely been administered during much of CDP’s operation.

CDP has been criticised as a penalty heavy regime that ignores the structural barriers to employment faced by Indigenous Peoples living in remote regions, with penalties administered under CDP creating ‘financial hardship’ that ‘negatively impacted on … food and housing security, physical and mental health and well-being’ for program participants. During the early phase of the COVID pandemic, from 1 January to 31 March 2020, 22,872 ‘Total Financial Penalties’ and 18,216 ‘Income Support payment suspensions’ were administered under the CDP program. It is impossible to see these penalties as a supportive measure.

Coercive, Counterproductive and Against the Right to Self-determination

There are good reasons to be sceptical about the claimed virtues of welfare conditionality via workfare at the best of times, however, during a pandemic, the imposition of workfare obligations is especially cruel and shows a reckless disregard for the people upon whom these bad bargains are imposed. Although governments imposing welfare conditionality often emphasise that the terms are ‘agreements’ between the social security recipient and the state, the nature of welfare conditionality is essentially coercive in character.

As Robert Goodin explains, ‘The rhetoric of workfare and mutual obligation insists that the unemployed repay their dole payments with some very specific thing: labour time, spent in one of the prescribed activities’, however, ‘the unemployed have no choice but to accept the offer on whatever terms it is made, whether or not they think it is a “good”, “fair” or even “remotely reasonable” offer. It is a “contract concluded under duress”, in that sense.’

Overriding the autonomy of people in need of social security has been a popular pastime for conservative governments desiring to reshape the behaviour of those struggling to survive on the lowest incomes. Welfare conditionality measures hark back to a time when people in need were told to bow their heads and bend their knees in deference to their socio-economic superiors.

While this is a problematic power dynamic for all people, for Indigenous Peoples it is a specific and direct contradiction of their rights to self-determination.

Indigenous peoples have a right to self-determination under Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples and a right to autonomy contained in Article 4. An essential feature of self-determination is that it allows free independent choice – an issue of critical importance for First Peoples – and the very thing that each of these welfare conditionality programs with compulsory program elements systematically erodes.

Australia’s dominant politicians have often portrayed First Nations Peoples as ‘not yet’ ready for the challenges of self-management, self-determination, and autonomous decision making – both on a collective level and on an individual level. As Megan Davis, a First Nations scholar with human rights expertise points out in Coercive Reconciliation, Indigenous Peoples are often treated as if they have to ‘earn’ human rights through modelling ‘good behaviour or the performance of duties.’

Empowering and listening: the way forward

Rather than routinely restricting the human rights of Indigenous Peoples in need of resource redistribution, governments need to address ‘the immediate, underlying, and structural causes of the non-realisation of rights.’ The government needs to create programs that genuinely empower rather than disempower people in need, and listen deeply, respectfully and responsively when program participants give feedback about their everyday experiences.

The COVID-19 pandemic reveals now more than ever the impact of structural factors on unemployment and underemployment rates. The reality of market failure looms large, and the reluctance of capital to cater for the needs of humanity is apparent with turbo charged inequality during the pandemic. However, the pandemic provides an opportunity for reflecting on the purpose of social security.

Alternative mechanisms for resource redistribution are needed—dignity enhancing alternatives to the punitive, stigmatising, expensive and intensive welfare conditionality policy cycle. The quest for unconditionality in social security has much to recommend it, and the people who are currently made more vulnerable through intensive welfare conditionality measures could certainly benefit from a reprieve, and even more so from a permanent change in approach.