- Milton James
Response to a ministerial complaint – do they really expect us to take them seriously?
This blog is a copy of WPS Developmental Note #61 taken from the book titled, WORK, NOT WELFARE, Critical Rural Social Work Practice and the history of the Work Placement Scheme.
On 30 November 2006, I was informed by Cape York Partnerships (CYP) that the State Manager of the Queensland Office of the Department of Employment and Workplace Relations (DEWR) had just suspended our funding whilst she waited for a report on a complaint made to Minister Joe Hockey. The Work Placement Scheme (WPS) has only enough operating funds to get us to the end of December with no guarantee that the WPS will be funded thereafter. What’s more, I have no knowledge of who made the complaint, and I had to contact the Deputy State Manager of DEWR to ask what the complaint was about.
So what is this complaint to the Minister all about? What is so terrible that warrants the suspension of our funding? Had someone died or been seriously injured? No, it is nothing like this.
According to the Deputy State Manager, there were two complaints. The first complaint is that I had abided by the WPS rule that we do not pay for the airflights of participants to attend funerals. The second complaint is that participants had walked from their place of employment back home to their caravan.
What follows are the facts of these two matters.
1. Yes, I did refuse to pay for the airflights of three boys from Mossman Gorge to fly home for the funeral of a new born child in accordance with a WPS policy and rule. Moreover, I told the boys and their families that funerals are a family matter and they must pay for their own flights back home from their savings or their families must pay for their flights.
This is the service offered by the WPS. We help young people to leave their outback welfare ghettoes to live and work in the real world. In the real world, families take responsibility for the funerals of their departed; this includes the transport arrangements of family members to and from funerals. This is the precondition of their acceptance into the WPS. This, however, is no longer acceptable to these three boys, their families, and, as we now know, DEWR.
2. The second complaint concerns these same three boys choosing to walk from their place of employment back home to their caravan at the local caravan park in protest of not receiving a free flight back home to attend a funeral. This was deemed unacceptable by DEWR. According to the Deputy State Manager, "this is a pretty dangerous practice and a breach of our duty of care"—they should not have been allowed to walk; they should have been driven home.
These complaints will now be discussed in detail, but first let me provide some contextual information.
In my April 2005 report on the trial of placing young Indigenous people from the Cape York Peninsula region into private sector employment picking fruit in southern states, and WPS Developmental Note #11: The use of distance, I had discussed the importance of distance—Distance will not only deter young people from leaving, it will also prevent others from interfering. The interference I am concerned about is from two sources:
1. unsupportive families, and
2. individuals and organisations committed to the welfare approach.
In my naivety, what I didn’t fully appreciate until now is that DEWR is also committed to the welfare approach and in the business of conjuring up new and novel forms of welfare handouts to Aborigines because they are Aborigines, like free flights to and from funerals.
With regard to families, I am concerned about those families who are, and have been, dependent on welfare for all of their lives, and the lives of their parents and grandparents—intergenerational welfare dependency. Once they know that their child has accumulated some savings while they are away working, many of them are keen to call their child back home so they can get their hands on their money.
I have had family members ringing me saying that they want their child to send them some money because the family has no money, no food and everyone is hungry—all of which may be true, but what has happened is that they have spent much of their welfare money on grog, drugs, cigarettes and gambling. I have had family members ringing me to say that their child must come home for a funeral, which was not true. Similarly, they just wanted to get their hands on the child’s money. Again, I have had family members ringing me threatening that they will call their child home if I do not send them their child’s savings.
On the child’s side, I have witnessed children and young people demanding to be sent home for a funeral only to witness this being an excuse for getting out of school or work or jail, just for the opportunity to lounge around and binge out on dope and booze.
Certainly, these young people did not choose to be born into this situation. The behaviour of their family is the product of historical and contemporary circumstances. Historically, things began to go terribly wrong back in the early 1970s with the introduction of unemployment benefits at a time when there was an abundance of work throughout much of the country, combined with the decision to turn temporary missions and government training centres into permanent welfare ghettos. I talk more about this in my book titled, The 1960s Aboriginal Fruit-Picking Scheme—A Critical Evaluation.
Noel Pearson says, “Widespread social problems didn’t come before passive welfare dependence – rather Aboriginal social problems arose out of the economic conditions of passive welfare dependence.” This is not entirely correct, but certainly the loss of employment and the introduction of unemployment benefits had catastrophic consequences. Take for example Halls Creek in the Kimberly region of Western Australia. In 1961, it was recorded that the Aboriginal population in the Halls Creek district was remarkably law-abiding. In that year, there was not a single Aborigine before the Court. This situation would dramatically change in the following years as a direct result of massive unemployment due to the growing capitalization and concentration of ownership in the pastoral industry, as well as the increased cost of labour due to their inclusion in the Cattle Stations Industry [Northern Territory] Award 1952. The population of Halls Creek virtually doubled overnight with refugees pouring in from the surrounding stations. This situation was foreseen by Mr Kerr QC in his address to the Commonwealth of Australia Conciliation Arbitration Commission in the 1965 equal wage case. He said: “[T]he big thing that the Commission will have to think about because if this structure is suddenly interfered with and broken down, the drift from the station properties will not be into other employment, it will be into the settlements.” Soon after, serious social problems began to occur. Today, the Halls Creek region has the second highest Indigenous offending rate in Western Australia and one of the highest suicide rates in the world.
And of course high levels of welfare dependency legitimised and increased government involvement in, and control of, Aboriginal peoples’ lives. Certainly, the recent history of Aboriginal people, the rollover of remote training settlements into permanent welfare ghettos, and their relationship with government would be totally different today should they never have had this legacy of dependency on welfare or dependency on government funding.
This brings me to my second concern — those people with a particular outlook who are responsible, in large part, for conditioning these people to resign themselves to squabbling over the slops from the welfare bucket. You can find these people everywhere these days. They dominate the helping profession and our major institutions, including key government departments and agencies.
The idea of trying to move beyond the reach of these people is, I can see now, not possible. And they are determined to force those that don’t share their point of view into submission, even though their approach has proven long ago to have been an abysmal failure. It is an approach that robs people of their potential — it robs them of their ability to aspire and develop the tools they need to escape this cycle of deprivation and poverty of mind. It is an approach that promotes the limitations of Indigenous people — real or imaginary. And when accepted, they submit themselves to dependency and to be controlled by others. Occasionally, you will see some resistance, but it's normally short lived, some of which is just a flash of false pride.
Even as I write this note, I received word from one of my supervisors that one of the board members of the Murray Valley Aboriginal Corporation has now resorted to bailing up our young people in the streets of Robinvale asking them if they want to go home and, if so, the corporation (tax payers) will pay for it. This is what they did to the young people who are the subject of this complaint.
Of course, neither DEWR nor the Office of Indigenous Policy Coordination (OIPC) will take up our complaint against the deplorable behaviour of certain members of the Murray Valley Aboriginal Corporation, but they are most quick to take up the corporation’s complaint against us (For more information, see WPS Developmental Note #58: The narrative dance and the perils of helping Aboriginal youths) and they immediately hobble the WPS by suspending our funding while they carry out their investigation.
I will now discuss these two complaints in detail.
The three young people at the centre of these complaints are from Mossman Gorge. They are aged 15, 16, and 17. They joined the WPS on 18 July 2006 and were placed into fulltime employment of a farmer at Weman in Victoria hoeing and picking lettuce.
Pictured above are our Cape York boys hoeing weeds out from a lettuce field at Weman.
They and five other young participants placed into this job proved to be good pickers/cutters. This job finished on 31 October and the group was then amalgamated with one of our orange and mandarin picking groups for another grower also in the Weman area.
The lettuce crew were not happy with this job, but they still performed well, with some boys picking four or five bins of oranges per day which is equal to some of our better orange-pickers.
In the week beginning 25 November 2006, the three Mossman Gorge boys began to lose interest in their work. They went from some of our best workers to our worst. Their work-group supervisor, Mat Worthington, first thought that it had something to do with the change in their job, but it wasn’t just their work performance that deteriorated, it was also their overall attitude. When Mat questioned them about their behaviour, the boys told him that there was a death in their family back home; a three day old child, and that they needed to go back home for the funeral. Mat contacted me, and on this same day I contacted Tim Jaffer of CYP asking him to contact the boys’ family to “sort this matter out.” By this, I meant for him to speak with the family and to advise them in accordance with our signup conditions.
Pictured above are our Cape York boys picking mandarins at Weman.
As mentioned, the position of the WPS in relation to the death of a close family member while they are away and the subsequent wish of a young person to return home for the funeral is clear — this is a family matter; not a WPS matter.
Prior to this event I didn’t fully appreciate that DEWR is also in the business of rescuing Aborigines with the provision of more welfare. This department is now expanding beyond the normal provision of income tested cash benefits (cash transfer payments) and tax concessions, to the provision of free, Indigenous only, non-means tested services — namely free travel for Indigenous youths to and from funerals from anywhere in the country, irrespective of their earnings. This is indeed a new and novel form of welfare.
An alternative explanation for what is going on is that senior DEWR bureaucrats are simply using this situation as an opportunity to throw their weight around to remind us who is in charge. Or perhaps they are playing to a call of the Murray Valley Aboriginal Corporation for our removal from their area. Should it have anything to do with either of these alternative explanations, these bureaucrats obviously gave little thought to any overreach. Nor had they given any thought to the fact that they are assisting these young people to get the sack and rendering them unemployable, at least in this part of the country. This is just one example of DEWR actively engaging in the widening of the employment gap between Indigenous and non-Indigenous people.
It is plain to see that to provide return airfares for participants to attend funerals will result in virtually all participants wanting to return home for funerals on a near monthly basis. And what fruit grower would agree for his workforce to leave their job every month or so for a funeral? And while they are gone, what’s to become of their perishable fruit crop (that has already been locked into a contract with a strict delivery timetable)? Clearly, DEWR bureaucrats know little about commercial fruit-growing. Moreover, those with experience of our target group know that the majority of these youths will not stick to any agreed return date. There is no telling when they will return, if at all. The Bordertown trial provided a case-in-point (For more information, see WPS Developmental Note #29: The Bordertown trial).
At the time of their community-based initial suitability assessment, all young applicants and their families are told that the WPS does not fly participants home for funerals — this is a private matter; they and their families are responsible for this. If, at the time of their initial suitability assessment, an ailing close relative has been identified and likely to pass away within the next seven months they are advised to join the WPS at a later date. This has occurred on two occasions over the past 18 months.
One needs to understand that this project is about assisting disengaged and unemployed youths living in remote welfare ghettos experience life outside of their welfare ghetto. The thing is, flights cost money and in the real world governments do not provide its citizens, including fruit pickers, with free return flights home from anywhere in the country to attend funerals. This is not how the real world works.
But there is something else not right here. As it stands, these senior bureaucrats are unwilling to fund the full cost of this project, and now they are suggesting that they would fork out up to $50,000 per annum just for participants to travel to and from funerals. Clearly, there is something else going on here.
When drilling down deeper into this situation, one begins to see that there is a greater battle being waged. While senior bureaucrats are primarily concerned about their careers, theoretical influences, and language (i.e. risk discourse, political correctness, spin, and weasel words), I am concerned about the real harm being inflicted upon these people and the most precious of all things that was taken from them — their pride and dignity.
Do you remember the book or the film called To kill a Mockingbird? Remember the Cunninghams, a very poor farming family hit hard by the Great Depression? They had nothing in the way of income, but they had pride, and they refused to prevail upon the assistance of others or accept charity of any kind — poor but proud. Self-reliance and the resolve to pay for one’s way in the world was the source of their pride and dignity. Atticus Finch did some legal work for Mr Cunningham. In lieu of a cash payment, Atticus agreed to be paid in kind (a load of firewood, a sack of hickory nuts, and turnip greens). Atticus tells his children that Mr Cunningham comes from a set breed of men that are too proud to take handouts — they will be beholden to no one. All services or gifts must be paid in cash or kind or else they will be refused. His son, Walter Junior is just as proud as his father, and that is why he refuses to accept the loan from Miss Caroline for lunch, even though it meant going hungry.
This is how I remember my father, and it was real men much like the character of Mr Cunningham that my father held in high regard. To accept charity was to admit inferiority, inadequacy, dependency, or defeat — to be a “charity case” pitiful enough to be offered a hand-out. Additionally, accepting non-monetary help on a task or project might be experienced by them as conceding an inability to successfully complete the work on their own. But the world that gave rise to these men and women and their values has largely been erased by the expanding middle classes and middle class values that in many respects are more utility based, and less principle based, at least when it comes to their preparedness to make real personal sacrifices in holding true to their values, rather than just participation in soft power support activities like the reconciliation walk across Sydney Harbour Bridge. At least this has been my experience.
Those who work with people who have lived their entire lives in a house, on a street, in any place where everyone lives on welfare and has for generations, know that their pride or spirit of agency has been broken long ago in earlier generations (For more information, see WPS Developmental Note #12: The importance of work).
Spirits broken long ago - Natives of New South Wales in the streets of Sydney 1830.
Today, many in the middle classes are quick to give handouts, and the members of the underclasses are eager to receive these handouts from government or private individuals, no matter the source. I have seen all expenses paid by governments for those wanting to attend funerals, which includes charter flights, accommodation, food, and spending money. I know these things because I was one of the statutory social workers providing these handouts. I have seen the provision of free accommodation, vehicles, boats, fuel, food, and holidays. I have seen all expenses paid at amusement parlours and tourist attractions. And I have seen the harm that this sort of thing has caused on the ground — the complete absence of pride and dignity, at least in regards to accepting and demanding something for nothing, and degrading themselves in the process.
My introduction to the degrading nature of handouts was when I started work as the Renmark Community Welfare Officer with the South Australian Department of Community Welfare in 1987. Part of my job was to be at my Renmark office every Friday morning and receive visits from members of the community in ‘need’ of financial assistance. Assistance could be in the form of the department paying an outstanding electricity bill, a food voucher, or cash. Below is the first page of the form we affectionately called the “green slime” that we had to complete with every application. To receive this financial assistance, applicants would need to provide evidence of their need in addition to providing information that left the applicant with little privacy. I could never get over those people who would give up so much personal and private information for a messily $20.00.
I have seen government social workers and youth workers being verbally abused and threatened with violence for not providing assistance or not providing enough. After a time, my conscience got the better of me and I would join the ranks of the apostates — to say enough is enough, and to expose the harm that has, and continues to be, inflicted upon these people through the delivery of these perverse incentives that I call the welfare approach.
Certainly, DEWR and these young people are jumping up and down and making all sorts of threats but the position of the WPS remains clear and firm. If the young people and their family want them to return home for a family funeral, they should pay the cost using their own money. Why push the cost back on taxpayers? For ultimately there is a greater price to pay, including the loss of their job.
The strange irony of this situation is that the provision of material assistance to the poor has been a traditional activity of social workers. Now we have DEWR moving into this space and dismissing the broader knowledge, critical perspective, and wisdom of social workers. The department speaks of doing its part in closing the gap between Indigenous and non-Indigenous people, at least in the field of employment. But the employment gap is not closing; it is in fact widening. Why has it widened? What’s gone wrong? The answer can be explained in part by DEWR’s own behaviour. DEWR of course deny this but the fact of the matter is that all the young people who were assisted to return home for a funeral, only one returned to work. Once they return home they go straight back on welfare. Moreover, DEWR goes out of its way to try and silence those who dare voice their objection to what is going on here.
We do, however, offer an alternative solution that does not compromise the integrity of the WPS and the young people. If a close relation dies and the family is unwilling or unable to pay for the young person’s return we can organise a video conference linkup. This way, the young person is able to maintain their employment and their position in the WPS. This has already been successfully trialled with two young Aurukun participants (For more information, see WPS Developmental Note #40: Family communication with participants via video conferencing).
On 24 November 2006, I rang Mat to say that I have just received word from Tim Jaffer at CYP that the boys’ families have agreed to a video conference. Mat then spoke to the boys but before he could finish telling them the news the boys told him that, “A video conference is fucked,” and that, “Milton is full of shit because our family has told us to come home.” Their claim that their family had told them to come home was referred back to Tim Jaffer.
The following days proved to be very difficult. These boys got into the bus each morning to go to work with the others, but when they arrived at the orchard they refused to do any work. This was probably due to them knowing that an outright refusal to go to work would result in the grower sacking them, or us withdrawing our kitchen service.
More worrying is that their behaviour is starting to affect other boys. A number of them were also taking my name in vain and refusing to work. I could see that we could have a major problem on our hands unless we moved quickly to resolve the situation. Some readers may recall my September 2004 paper titled, A Return to the Real World Economy, where I discussed group dynamics and how negative peer pressure can easily overwhelm a group. It is extremely difficult to reason with unhinged emotionally charged youths — a Lord of the Flies situation.
The thing is, it is not just children. Standford professor Robert Sapolsky talks about recent research which shown that far more often than we would like to think we make decisions on implicit emotional automatic reflexes. We make them in milliseconds by parts of our brain that are marinated in emotion and hormones which are activated long before the cortexual rational parts are activated. And often what we believe is rational thinking is instead our cognitive selves trying to play catch-up by rationalising why our emotional instincts are perfectly logical and make sense. Sapolsky speaks of experiments that have shown that manipulation of the emotional, automatic, the implicit, subterranean aspects of our brains can occur while people are unaware of it, and that this can change our decisions. We then come up with highfalutin explanations for why we just behaved the way we did because of some event that occurred in our early childhood or what took place with our ancestors a hundred years ago. But no, it was actually because of the manipulation that had just occurred.
Readers may also recall in WPS Developmental Note #49: Early trail blazers, where I talked about how, in late 1968, an earlier version of the WPS was in shambles; participants were refusing to work, there was violence and a severe breakdown in law and order after which everyone was taken back home and the scheme was abandoned.
In addition to this, we had the problem of their employer. A week earlier, six of our participants got the sack because two of them were caught by the grower sitting down on the job. The following day, Mat approached another grower looking for employees and was promptly told, “No, once bitten twice shy.” When Mat asked him what he meant by this, he replied that word had got around the district that our boys are a waste of time. Apparently the grower that gave our boys the sack attended a general growers meeting that same evening and told everyone at that meeting what happened. This is another reason why we cannot afford to have participants causing too much trouble as they may destroy what few employment opportunities that are open to these young people who have no prior work experience and very little education. Most are unable to read, write, tell the time, and describe or measure weights, volumes, and distances. This has already happened to many of the Robinvale Aborigines. They have now spun the tail that it is all about racism. In truth, racism has nothing to do with it, at least not in the manner that they portray. It is about their bad behaviour.
The three Mossman Gorge boys were heard regularly saying that they were leaving on Wednesday 29 November 2006. This, I thought, was odd for it suggested that there was an external influence at work assisting these young people – how else could they leave? Either this or they were bluffing. This oddity was perceived to be of no great importance to our immediate problem so I pushed it to the back of my mind. The first thing I had to do was to nip their self-destructive behaviour in the bud.
The following morning, Tuesday 28 November, 2006, I instructed Mat to inform all the boys that they must each pick their minimum of two bins of oranges by day’s end. If they were not picked, they would be left on the farm until they were picked. Mat repeated my instruction to all the boys throughout that day. Shortly after midday, a number of boys had finished their two bins and Mat took them back home to the caravan park. He also had to pick up some more water as one of the boys decided to wash his hands in everyone’s drinking water. He returned with the freshwater to find that they still had not done any work. He again repeated my instruction. On his way back to the van, he saw that the water container had been tipped over. He again refilled it and repeated that, “Milton had said you are to all remain here until you finish your two bins.” At this, one of the Mossman Gorge boys said: “Fuck you Mat, and Milton can fuck himself too, we are not staying here.” The boy then kicked over the water container and said: “Now we are thirsty and you can’t let us go dry.” Again Mat went and refilled the water container, but when he returned the boys had taken off.
The fact of the matter is that these boys chose to walk off from the job, we did not tell them to walk off. And what would these senior bureaucrats have me do? Do they really expect me to chase them down and drag them back? These bureaucrats are now presenting themselves as the definers of good professional practices; the embodiment of all wisdom and skill. Perhaps the next time we have any behavioural problems I will call on these people to shows us “amateurs” on the frontline how it is done. The truth is that these people are part of a bureaucracy that primarily deals with implementation of government policy. Over the past two decades, outsourcing has led to these people becoming disconnected from our target group and direct service delivery. They increasingly lack the expertise and experience to appreciate the complexity of human service delivery, to identify the key systemic challenges, and design a viable system that can effectively address structural and residual unemployment.
This brings me to an earlier point I made in WPS Developmental Note #46: Is the Department of Employment and Workplace Relations an appropriate partner for the WPS? What we have here is another example of where DEWR is not fit for our purposes. These senior bureaucrats are approaching the situation with a “spillway” type mentality where everything is designed upfront in some sort of neat beautiful package, and then, and only then, is it released into the world. This is not how developmental work works. In developmental work mistakes are part-and-parcel of how things are. These bureaucrats really need to read my soon to be released book, The 1960s Aboriginal Fruit-Picking Scheme—A Critical Evaluation.
What is important is that we acknowledge our mistakes along the way, correcting them and learning from them. In the end you will arrive at a much better place than if you assume from the outset that you can build the whole thing correctly. A good agile process acknowledges that we are erring and learning as we go. As I said in WPS Developmental Note #14: The importance of these Developmental Notes:
The reason I write these WPS Developmental Notes is to speak up and speak out. To try and create some learning – a history or a trail for those who are following or perhaps for those who are travelling in parallel directions – to build upon. Perhaps I am running behind, and for some reason those in front did not leave a trail of their experience, findings or conclusions. I do know that some have gone before me and they did leave a trail in the form of research and discussion papers, which I and others have benefited from. This has saved us a great deal of time. Where this has happened, there is no need for us to discover gravity, it is already been discovered.
But this is not the way these senior bureaucrats are approaching the situation or expect us to approach the situation, which says to me that they should keep well out of the business of developmental work.
These senior bureaucrats say that this action of the boys taking off is “a pretty dangerous practice and a breach of our duty of care.” So let me now examine their claim from a practice perspective.
For starters, it is NOT a “practice” of the WPS for our young workers to walk home from work. Our practice is that we have vans and we employ supervisors to drive the vans to transport our young people to and from work.
Secondly, walking off the job is a regular occurrence with our target group. It is not uncommon for participants to walk 20 kilometres from their place of employment back to their caravan park without our knowledge. On one occasion five participants walked 32 kilometres before I located them. Now before these senior bureaucrats start throwing their arms up in the air in pretend animated horror, let me point out that in both the Renmark and Robinvale groups the boys regularly walk in and out of town. In Renmark, their houses are six and seven kilometres from town (For more information, see WPS Developmental Note #54: Trial of rental homes). In Robinvale, their caravan park is about three kilometres from town. I would hope that nobody would dare suggest that walking from their home on the outskirts of Renmark into town, or walking from their caravan park on the outskirts of Robinvale into town is “a pretty dangerous practice and a breach of [our] duty of care.” So what do these bureaucrats mean by this?
I asked Paul Clarke (a very mysterious character who works for Central Murray Area Consultative Committee and appears to be closely affiliated with the Robinvale Murray Valley Aboriginal Corporation) this same question. He answered, “What would happen if they were hit by a truck?” My answer to him was, “If they get hit by a truck they get hit by a truck—what do you expect me to say?” And again, before these senior bureaucrats start throwing their arms up in the air again in pretend horror let me introduce a bit of reality to the situation. What I am saying is that these boys, like me, and nearly every other person in the world regularly walk along the side of a road. Most certainly these senior bureaucrats also walk alongside of road, possibly on a daily basis. Or perhaps, for reasons that I am unaware of, they think that you are more likely to be hit by a track on the Weman road ten kilometres from town than when you are five kilometres from town?
Personally, I think that riding a pushbike on the road is pretty dangerous. I see that highly paid senior public servants living and working in the cities are also getting in on the act these days, even politicians. They think it is the environmentally responsible thing to do, and good for their health. I think they are more likely to be hit by a truck than those who walk. But there is nothing much I can do about this because these people are not indentured to me in anyway.
I also see many kids riding their pushbikes to school. I recall letting my own daughter ride her pushbike to school on a few occasions, and I am a social worker with 15 years’ experience as a statutory child protection worker. Similarly, I think it is more likely that they will be hit by a truck than those who walk. And I don’t hear these senior bureaucrats suggesting that the parents of these children who ride their pushbike to school are in “breach of their duty of care.”
The truth is that these people can no more provide protection to any of my clients than the Pope for the simple reason that they are not going to be there when they’re facing a REAL danger and in REAL need of protection. These people might pretend that they can, but they can’t.
What is really going on here is that these senior bureaucrats are simply grasping at straws in their search for a problem; any problem no matter how ridiculous or hypocritical. As I mentioned earlier, I suspect senior bureaucrats want the WPS stopped or at least reined in. I can think of two reasons for them wanting this.
The first reason would be to appease certain members of the Murray Valley Aboriginal Corporation and associated individuals and organisations.
The second reason may have everything to do with the very nature of the organisation. DEWR is a bureaucracy and therefore hierarchal by nature and where everyone is required to adhere to a fixed set of rules. Unlike a meritocracy that privileges knowledge and expertise, advancement up the bureaucratic hierarchy takes place on the basis of individual ambition and only through the structure of the organisation. This results in behaviours that are more often than not about desperately holding on to or advancing their position within the organisation rather than what is in the best interests of the people they serve. I mentioned in WPS Developmental Note #48: The tail of two clients that those who subscribe to the welfare approach favour “safe” and familiar methods of intervention—never mind that these “safe” and familiar methods have been an abysmal failure. The important thing is that if it concerns poor policy it’s the responsibility of the politicians and parliament. If it concerns the poor implementation of policy it’s important for the bureaucrat to cover their arse or disperse responsibility so that their careers are safe, or at least no less than those above or below them.
What keeps people like these senior bureaucrats awake at night is the possibility of being held personally responsible, or worse, personally liable, should something go wrong. This is why they come up with statements like “breach of duty of care” and “bringing the department into disrepute” which are euphemisms for me placing their social standing and security at risk. However, I will give them the benefit of the doubt, and consider their claim from a legal perspective. Before I do so, let me return to this sorry saga for a moment.
Mat informed me about what had just happened and I said I would drive to Robinvale and sort it out when I got there. When I arrived one hour later we both headed out in my vehicle to find the boys. We found them half way back home, walking along the main Weman-Robinvale Road.
I pulled over and asked the boys to gather around for a talk. My first question was to ask who their leader is. Nobody answered. I then said, if the leader was not going to identify himself would someone like to identify him. All the boys started looking at each other and then the oldest boy spoke up and said that he was the leader. I then told him that he was free to leave the WPS if that is what he wants; I will not stop him. When he gets back home he is free to pack his bag. At that, he got up and started walking off saying he was “out of here.” He then called to the other two Mossman Gorge boys to come with him, which they did. I called to these other two boys to come back. “Why do you listen to him? He’s just going to drag you guys down,” I said. At this, the two stopped and began to turn back. The oldest boy then yelled out ordering them to return to him. The boys turned and went back to him again. Certainly, the WPS would operate more smoothly without this individual. I have written about this situation in my pay paper titled, Petrol Sniffing on Cape York Peninsula: An Intervention Strategy. The two other boys that were tagging along with them were not having anything to do with this and they immediately jump into the back of my vehicle and we drove back to the caravan park.
This, however, did not make much sense to me. I was calling the older boy’s bluff, but it appeared he was not bluffing. I couldn’t understand this; it made no sense. The funeral had already taken place, so why go home? They had spent all their money and their family had said they wanted them to stay. It was not until the following morning that the missing pieces of the puzzle revealed themselves. At around 11:30 am, we were visited by someone associated with the Robinvale Murray Valley Aboriginal Corporation who pulled up directly outside their caravan and told the boys to get in.
Ahh. There was one of the missing pieces. A second missing piece revealed itself soon after when I had learnt that certain associates of the family of these young people were communicating with the Robinvale Murray Valley Aboriginal Corporation asking for their assistance in returning the boys home. It appeared that the family were playing both sides of the fence with opposite messages.
Let me now look at this claim by these senior bureaucrats that we are in breach of the duty of care, from a purely legal perspective.
It is clear to me that these senior bureaucrats have had little or no legal training, for they use legal terminology without any real understanding of its meaning. So, for them, this part of my note will be an education. What will be revealed is that there was no breach of our duty of care and therefore no breach of our funding agreement, but rather an insight to the ugly side of the Aboriginal welfare industry.
Breach of duty is an element of the torts of negligence. No cause of action lies in negligence unless and until a plaintiff has suffered an injury. In our situation, no injury occurred so there is no basis for any breach of duty of care.
Putting this serious oversight of these senior bureaucrats to one side for the moment, I can still run through the various steps as if an injury did occur so that these senior bureaucrats can get the general idea.
1. Duty of care
The next step in a negligence case is to establish whether or not a duty of care was owed in our particular situation. In novel cases, such as this one, the duty of care is determined on a case-by-case basis. A duty is established by:
1. satisfying the reasonable foreseeability test, and
2. applying an incremental approach.
1.1 Reasonable foreseeability
The reasonable foreseeability test establishes that a duty of care arises should we have engaged in an act or omission that a reasonable person in our position could reasonably foresee would likely injure the plaintiff.
In this case, nobody was injured, giving support to my assessment that there was no foreseeable injury. The High Court has stated that this approach of recognising reasonableness is a touchstone for whether a duty of care should be owed and that the concept of reasonableness should take into account the ‘realities of ordinary life’. It is not sufficient that harm suffered by the plaintiff was reasonably foreseeable in a general sense. This confirms my point that being hit by a truck is too broad a claim and disregards the reality of ordinary life.
1.2 Incremental approach
The incremental approach involves two steps. Firstly, it relies on deduction and analogy with case precedents on novel scenarios of the same kind involving issues of duty of care. I can reassure these senior bureaucrats that in the kind of duty of care that they are asserting, there are no case precedents. Secondly, it relies on an examination of ‘salient features’ that support or derogate from a finding of duty. Some ‘salient features’ are universal, while others are relevant in discrete categories. A non-exhaustive list may include:
As a general rule, responsibility ceases when control ceases. Clearly, in this case we had no control over these young people’s actions and therefore our responsibility ceases. A finding of duty also depends upon the control we would have over the relevant risk of harm to the plaintiff. The more remote the control is over the direct source of harm, the less likely a duty of care arises. Using the example of a truck, I would suggest that it would be near impossible to argue that I had any control over each and every truck driver that happened to drive passed these young people as they walked along the side of the Weman-Robinvale road.
The meaning of the term ‘vulnerability’ is not merely that the plaintiff would be exposed to a risk or is likely to suffer injury if reasonable care were not taken. Rather, a plaintiff is vulnerable where he is unable to protect himself from injury as a consequence of our lack of reasonable care. In this case, the WPS participants were in a familiar environment as they travelled this road six days every week for the past five months.
Other factors that make them less vulnerable include, for example, their parents and teachers have taught them basic road skills, they have considerable experience with walking along the sides of roads back home, they have considerable experience with trucks passing them as they have walked along the sides of roads back home. In colloquial terms, they are street smart. Therefore, if these attributes mean that these young people are aware of the risk and can ameliorate that risk by keeping an eye and ear out for passing traffic, then such a duty of care as alleged cannot be owed.
1.2.3 Autonomy of defendants
Generally, where it would be an unreasonable burden on our autonomy to uphold a duty of care, a duty will ordinarily be denied.
The degree of a reasonable burden rests upon the circumstances. It can be argued that if a duty of care involves the supervisor and director focusing on matters outside of the main purpose and function of the WPS, that is, outside the purpose and function of the WPS to place young Indigenous people into mainstream employment, then it is arguable that it is unreasonably burdensome on the autonomy of the supervisor and the director to uphold such a generalised and over-extended duty of care.
1.2.4 Public policy
Policy considerations often deny a duty of care even if quite a few of the other salient features are present. Some examples of policy considerations which justify us not owing a duty of care include issues of resource allocation and budgetary considerations together with the purpose and principles of the WPS. Even if it were found by a court that the supervisor and director do owe a duty of care in such circumstances an action for negligence is still likely to fail at the breach of duty stage, and causation stage, should a successful defence be presented. However, we still must remember that no injury has occurred and therefore such considerations are purely an academic exercise.
2 Breach of duty of care
Where a duty of care is established it is then necessary to establish that it has been breached. In order to do this two issues need to be addressed.
1. What is the relevant standard of care?
2. Has that standard of care been breached?
2.1 Setting the standard of care
There is a whole body of law dealing with standards of care, but I will not go into them here. Suffice it to say, the standard of care in any particular case is a question of law. The onus is on the plaintiff to prove the relevant standard of care required. The common law test for standard of care is an objective one, that is, how would a reasonable person have acted in our position with a view to eliminating the risk of injury or preventing the injury from occurring or, if that is not possible, with a view to reducing the seriousness of the consequential injury or the chance of it occurring?
2.2 Breach of standard
Once any standard of care owed by the defendant in the circumstances has been set, it is then a question of fact as to whether the defendant has achieved that standard or is in breach. Remember, no injury has occurred so there can be no breach in this case. Furthermore, it is not for these senior bureaucrats who have little if any knowledge of this area of law to conduct their own ‘kangaroo court’. Only a legally constituted court can make such a determination.
Applying civil liability legislation provisions, three questions need to be addressed in order to determine whether the standard of care has been breached in fact:
1. Was the risk foreseeable?
2. Was the risk not insignificant?
3. Would a reasonable person in our position have taken the precaution?
2.2.1 Foreseeable risk
For the “foreseeable risk” element to hold up, it requires the defendant to either know of the risk or a person in their position ought to have known of the risk. However, the mere recognition that a risk was foreseeable does not by itself impose liability on the defendant. In this case, however, it was Paul Clarke that conjured up the idea that these young people were at risk of being hit by a truck. I, on the other hand, held no such thoughts and when suggested by Paul Clarke I thought it to be far-fetched and fanciful.
2.2.2 Not insignificant
The High Court has held that ‘not insignificant’ means ‘not far-fetched or fanciful’, which in practice apparently means the same thing.
As I said earlier, Paul Clarke is a mysterious figure that lurks in the shadows of the Robinvale Murray Valley Aboriginal Corporation. He has been seen bailing up our boys in the streets trying to extract information from them, and most likely feeding that information to others. When I met Mr Clarke, I asked him what interest he had with our boys. He replied, “I don’t want to say.” I asked, “Who do you work for?” He replied, “I don’t want to say.” When pressed for a better answer, he said, “I work for the government.” I asked, “Do you work for a welfare department?” He replied, “No”. I asked, “Do you work for DEWR?” He replied, “No – No – Yes – I worked for DEWR – in the past.” Mat asked him for his contact number, he replied, “You don’t need that.” As I said, this man came across as a very mysterious character and the man most likely feeding information to senior DEWR bureaucrats. Perhaps the complaint made to the Minister’s office came from this man or from the Robinvale Murray Valley Aboriginal Corporation.
In summary, the decision by the State Manager of DEWR to suspend WPS’s funding on a complaint made by an undisclosed source for us carrying out our policies and rules smacks of the department trying to ‘do a number on us’. It’s plain to see that they have little or no direct experience working with our target group. They were confused about what is and is not the practice of the WPS. They were pretending they know what they are talking about when claiming that we were in breach of our duty of care. And they had no qualms about dismissing correct legal and/or procedural processes and procedural fairness.
No doubt they will extract their pound of flesh from me for responding to their complaint in this manner. This is the price we pay for daring to work with Aboriginal youths in any serious fashion in this day and age and for not holding these senior public servants in awe.
Monday, 11 December 2006
 Farrow, K., Hurley, S. & Sturrock, R. (2015). Grand Alibis: How declining public sector capability affects services for the disadvantaged, Centre for Policy Development.