Social security law: what does the politics of 'conditional welfare' mean for review and client representation?
Abstract: This paper reflects on aspects of the meaning of new social security as 'conditional welfare' (such as welfare quarantining) and its implications for client rights, advocacy and public policy accountability. The paper considers the rising reliance on conditional welfare and related measures such as 'linked', localised or place-based welfare, and the increasing complexity of welfare discretions. The paper essentially makes the argument that it is past time to begin to debate the pros and cons for Australia of conditional welfare as it impacts on administrative law and new forms of welfare advocacy.

Keywords: conditional welfare, new welfare, reviews and appeals, new advocacy, complexity and change.
Article Type: Report
Subject: Securities law (Political aspects)
Quarantine (Political aspects)
Social security (Political aspects)
Author: Carney, Terry
Pub Date: 03/22/2011
Publication: Name: Australian Journal of Social Issues Publisher: Australian Council of Social Service Audience: Academic Format: Magazine/Journal Subject: Sociology and social work Copyright: COPYRIGHT 2011 Australian Council of Social Service ISSN: 0157-6321
Issue: Date: Spring, 2011 Source Volume: 46 Source Issue: 3
Topic: Event Code: 290 Public affairs; 970 Government domestic functions
Product: Product Code: 9108620 Securities & Commodities Regulatn; 9105310 Social Security NAICS Code: 92615 Regulation, Licensing, and Inspection of Miscellaneous Commercial Sectors; 92313 Administration of Human Resource Programs (except Education, Public Health, and Veterans' Affairs Programs)
Accession Number: 288627438
Full Text: Introduction

Nothing stands still in social security law, administration, or policy. We live in an ever-changing social, economic and political environment, as detailed in recent research and official intergenerational reports (Marston et al. 2010; Tepe & Vanhuysse 2010; Treasury 2010).

Not only has the world of work altered, fragmenting and casualising the once dominant 'standard employment relation' of permanent full-time work at standard hours (western-Europe aside), but technological and demographic shifts bring into question economic assumptions behind prevailing programs (for example, the sustainability of current models of residential aged care provision) and alter the politics of welfare (see Walker 2002), which discusses UK changes). For example the voting power and heightened expectations of the now ageing baby boom population cohort has resulted in increasing emphasis on choice and respect for individual autonomy in the crafting of welfare services. It may well also account for the disproportionate share of fiscal welfare accruing to this generation in the form of tax exemptions on retirement incomes (or earlier, the largest fiscal welfare tax-concession distortions to encourage superannuation, running at 26 billion in 2009: Stebbing & Spies-Butcher 2010: 592). Conditional social security, which curtails or removes the freedom to spend associated with cash provision, or which imposes onerous lifestyle or other conditions of eligibility (such as imposing education or drug treatment requirements), is one politically popular outcome of such changes.

Human rights influences, such as the shift towards 'supported decision-making' of people with cognitive incapacity, and welfare program reforms giving direct client control of funds previously delivered only as state-provided services, as encouraged by principles of individual choice enshrined in the Convention on the Rights of Persons with Disabilities 2006 'CRPD'), are also increasingly shaping welfare policy. One example is the provision of fungible welfare in the form of an individual budget (the so-called 'personal budget' approach) instead of access to standardised state delivery of aged and disability services (Needham 2011). This transformation puts pressure on more neglected aspects of social security law, such as payment and correspondence nominee provisions which empower third parties to make decisions for another person, or receive a copy of Centrelink correspondence; provisions currently drafted in unduly open ended terms (for example, FA(A)A 1999 s219TD) and administered with a paternalism more befitting of the 1950s than 2011, despite some limited progressive guidance from the Administrative Appeals Tribunal (AAT) (Re Henderson 2008; Re Boyling 2009). It also calls into question the way welfare currently interfaces poorly with state and territory adult guardianship laws (Carney 2012, forthcoming). Federalist issues too are rising in prominence in some areas, as state or territory agencies seek to maximise their revenue/authority, especially as social security income conditionality 'knits' with state agencies responsible for areas such as child protection or assessments of 'vulnerability', without sufficient regard to levels of required resourcing or protocols for review of referral decisions.

This paper reflects on aspects of the likely future directions of social security, particularly what is termed 'conditional welfare'--such as the restrictions able to be placed on the permissible expenditure of Australian social security payments for some indigenous and other social security recipients, a scheme known within Australia as 'welfare quarantining' (Billings 2010)--and its implications for client rights, representation and public policy accountability. In the next section the article considers the rising reliance on conditional welfare and related measures such as 'linked', localised (or 'place-based') welfare, and the increasing complexity of welfare discretions. The next section examines the 'politics' of new administrative arrangements for social security, along with a case study of the political economy of disability pension reform. This is followed by a mapping of some of the possible implications for administrative review and welfare advocacy and a short conclusion.

The paper essentially makes the argument that it is past time to begin to debate the pros and cons for Australia of a 'new administrative law' and new forms of welfare advocacy.

Substantive social security law

The rise of 'conditional welfare'

Dwyer's thesis (1998; 2004; 2008) of a 'conditional welfare state' is becoming more pertinent for Australian social security. Conditional welfare can be expected to grow, not only as current extensions are made of existing welfare conditionality schemes, but as interest centres on other populations (such as addicts) as in the United Kingdom and the United States, and--for people who are homeless--Australia (Carney 2011a); indeed the British Government recently expressed initial sympathy for citizen-initiated proposals to 'cut' social security benefits for people associated with the August 2011 riots (Kemp 2011).

This is not new: contractual welfare ('mutual obligations') would have been imposed in post-WW2 Britain in the form of retraining camps for the longer term unemployed (as the war reconstruction Beveridge Report recommended), had it not been for the fact that Cabinet decided there were expected to be too few unemployed to make it viable. The Howard era (re)embrace of the US ideas of mutual obligation as espoused by Lawrence Mead also did not drop from a Martian flying saucer: for those of workforce age it resonated with Australia's history of a parsimonious, means-tested, 'workers welfare state', serving as a (very temporary) backstop behind the primary measure of 'welfare through work'.

That is one reason why the politics of 'welfare blame' of the unemployed ('dole bludgers all?') has been so virulent in Australia over many decades; leading to long periods of highly punitive sanctioning of client breaches of compliance requirements (Carney & Ramia 2010).

The rise of broader-ranging 'area-based' welfare

The currently fashionable trend to knit income support into a package along with welfare services is not new either: this was a core proposal of the McClure report on Welfare Reform (2000); a proposal that the Howard government was taken to task for on the basis of 'cherry picking' mutuality without reciprocal provision of the wider supports and welfare integration recommended by McClure in order to better address vulnerability (Carney & Ramia 2002).

Social inclusion agendas of government (so far, rather more muted for Australia than under UK or European models, and currently expressed locally mainly in so-called 'place-based' area-based geographic initiatives), and new forms of 'governance' (something Australia has embraced with greater fervour than other countries, as witness the neoliberal assumptions of the Job Network, or the Disability Network) are also significant drivers. But the genuine devolution/ localisation of social security and welfare usually associated with social inclusion programs has rarely been attempted in Australia so far (Carson & Kerr 2010), unlike Europe, where properly decentralised job-services have received generally favourable report cards (Lindsay & McQuaid 2009; Damgaard & Torfing 2010). This is partly explained by the historical design of Australian social security, with its emphasis on rigid eligibility categories and tight arithmetic logic of means tests, leaving little room for discretionary powers. These features allow for highly automated administration, with low staffing levels, so unsurprisingly Australia has led the world in the speed and extent of adoption of information technology solutions, including data matching to detect overpayments (Henman & Adler 2003; Henman 2004; Henman & Marston, 2008). One inevitable consequence is that there is less room for, or interest in, professional casework within social security administration (McDonald & Marston 2006), and little enthusiasm for casework discretions commonly included to accommodate the case complexity and 'span' of welfare services necessarily associated with overseas social inclusion projects.

The exposure of significant areas of welfare policy to review by the Australian Productivity Commission (starting in 2002 with its reports on the Job Network, but most recently its references on disability and aged care: Productivity Commission 2011a, 2011b), has elevated the prominence given to reliance on market mechanisms (more accurately 'quasi-markets') as the delivery vehicle for social policy, and an increasing emphasis in policy-making on 'efficiency' and values of individual responsibility/personal choice.

The return of 'the new administrative discretions'

It is not only 'new conditional welfare' (and so-called place-based welfare) that raise new questions for welfare law. A quarter of a century ago the role of discretion was lauded, on the basis that 'some crucial policy objectives do not easily translate into definite rules' (Carney & Hanks 1986: 241). It has taken longer than anticipated to complete the circle on this, but--after many years of policy written, in reverse-engineered fashion, 'to run on the Centrelink computer'--there are now more, and more challenging, areas of subjectivity and discretion opening up. For instance the long-standing area of couple relationships has become even more nuanced than previously (Re Pelka, 2008; Re Hicks 2009; Re Official Trustee 2011). Likewise the section 24(1)(c) discretion to depart from the couple rule 'for a special reason in the particular case' (where, contrary to Centrelink guidelines about it being 'beyond the control' of the couple, the real focus is the applicability or otherwise of the pooling of income and assets: Re Holt 2010: paras [29], [30]).

In future, determining issues such as 'vulnerability' under the expanding reach of welfare quarantining potentially is equally challenging for external review. Originally part of the Northern Territory 'intervention' for indigenous communities, quarantining is now able to be applied in relation to child neglect, truancy, disengaged youth, long-term welfare recipients and 'vulnerable' clients--as new programs are rolled out in particular geographic areas (such as disadvantaged areas, including 5 new ones from July 2012) and/or for particular groups, such as those at risk of intergenerational poverty (Hutchinson et al. 2011; Treasury 2011: 25-29). This potential complexity for external review bodies is largely untested so far, because of the way the current legislation confines most of the enquiries about becoming subject to income management to meeting 'trigger-point' conditions and bases for exemption--such as being on a particular payment, and resident in a particular area, at the 'test time' (1)--effectively ousting from review much of the real discretion about who is selected to have their payments controlled, and why (see Re France 2011).

Vulnerability, despite its undefined width in law, (2) is currently narrowed in practice in two ways. First this happens through the obligation to apply the Ministerial determination calling for the presence of one of four 'indicators' of vulnerability (financial exploitation, financial hardship, failure to take reasonable self-care, or homelessness or a risk of such). Secondly, vulnerability is restricted by the requirement to show that the person is not allocating available resources to meet priority needs, (3) and that income management is an 'appropriate response' which would 'assist' the person to do so. (4) Such 'new-new' paternalism, then, is presently very tightly constrained: rather than empowering decision makers to assess issues such as vulnerability and tailor an individual response, primary decision makers (and review tribunals) currently only address more objective preconditions (reining in undue subjectivity). However vulnerability is a beguiling but slippery concept (Brown 2011), one fraught with difficulties and risks for rights should it ever become the main basis for decision making, as may happen in the future.

While these issues lie mainly in the law and policy domain, rather than the 'political', they are of course inevitably a mixture of both. There is after all no purist strand of 'evidence-based-policy', even if governments were prepared to cede their authority to the policy technicians. The inherent flexibility of the design of Australia's tax-funded social security system has long been utilised to adjust settings to current needs as judged by the government of the day (unlike insurance-related schemes overseas, where the politics of 'vested-rights' is a major constraint on change). Developmental trials of new policies are sometimes undertaken in Australia, but systematic piloting and evaluation has been rare by comparison with policy-making in the United States, for example; although more of this is now being undertaken. So the political trope or agenda in Australia can change quite rapidly over time, as governments court political favour variously as reformers ('welfare-reform'), as populist 'tough on fraud/ slackers' (dole bludgers, sole parents, or in the 1970s 'school leavers') or as champions of the 'deserving' (age pension rate increases, pension bonuses).

There is also a space for politics and policy within administrative arrangements and the sometimes ill-fated efforts to achieve policy outcomes, as discussed in the next section.

What about the 'politics' of welfare?

Where politics (with a small 'p') arguably has actually been quite prominent (though largely overlooked by the public and others) is on the administrative front.

The politics of administrative reorganisation?

Organisational models have shifted around a great deal in recent decades. Once, organisational politics for people of workforce age mainly centred on a 'pass the parcel' regarding which part of the bureaucracy was responsible for the 'work test' for the unemployed--the then Department of Social Security (DSS) or the then Commonwealth Employment Service (CES)--while its intensity, such as the number of job applications to be made each fortnight or other such requirements, was simply adjusted by Ministerial edict (Carney & Hanks 1986: 89, 96). Policy and administration of social security resided with a single department, DSS. In the 1990s much began to change. Administration of all federal payments (including veterans payments etc) became the responsibility of a statutory 'payment agency' (known as Centrelink). Mthough never sold off, it was privatisation ready, had government chosen to go down the US path (where Lockheed Martin was a major delivery agency of privatised welfare: Bezdek 2001; Gilman 2001).

Placed into a contractual relationship with government departments responsible for the policy and design of the payments, Centrelink was rendered as a mere amanuensis (or implementing arm) of departmental policy, through contractual terms excluding it from exercise of any real policy autonomy even in response to rulings of external review bodies, and reducing the role for exercise of professional social work discretions (McDonald & Marston 2006). Compounding this fragmentation between policy and its administration, the interface between Centrelink and commissioning policy departments became less receptive to feedback or suggestions, compared to the previous relationships where policy refinement and application worked more seamlessly or symbiotically. With no doubt the best of intentions (unifying payments for people of workforce age), the successor to DSS (now FaHCSIA) in 2007 lost policy responsibility for these payments to the distant parent of the CES: DEWR. In turn, this intensified differences in the underlying logics or rationales of payments--most noticeably with the 'double movement' of radical labour market deregulation ('Work Choices') combined with a 'work first' approach to workforce age social security payments (Carney 2007; 2008)--where established welfare rights of those of workforce age, such as to 'suitable work' on reasonable conditions, were radically transformed by purist economic logics that any job was better than no job.

This kind of outcome of increasingly diversified policies, payment rates and rules between one payment and another has led some overseas commentators such as Roy Sainsbury (2010) to argue for a 'single benefit' system or other radical simplification of categories (Sainsbury & Stanley 2007), taking countries like New Zealand as showing the way. These reforms are designed to avoid artificial distinctions between payments, or pressure by clients to favour one category over another (such as due to rate or fringe benefit advantages) and other poverty traps (such as those associated with perverse disincentives in the construction of means tests). Joined-up-governance, for its part, seeks a similarly holistic outcome for government policies across departments and agencies, but has been critiqued as hollow window dressing (preserving rather than overcoming policy silos) due to the failure to properly recognise the bureaucratic politics in play between departments (Davies 2009).

To further complicate the picture, unfair or perverse policy outcomes are not confined to administrative structures, but can be expressed over the course of history of a particular payment category, as illustrated by the invalid pension saga, where the 'politics' of cost-containment has led to the introduction of a series of untested policies, most of which have proved unable to achieve the intended capping of growth in the payment.

The 'politics' of disability pension reform?

Of longest standing political and policy concern in Australia has been the right to disability payments. For over 30 years the numbers of people on disability payments have continued to grow at a faster rate than changes in the demographic profile of the population (that is, adjusted for impacts such as the larger cohort of baby boomers), giving rise to an appearance of moral panic by both major political parties when in office (driven mainly by Finance department concerns to limit government outlays). A bewildering array of measures have been tried and have failed over this time (Carney 1991; 2006: 148-149). Internal bureaucratic initiatives such as changing the operational definition of disability for work (to exclude all but medical factors); insistence on at least half of the inability to work being the result of medical factors; imposition of public service senior medical officers to review all initial medical assessments; and introduction of unlegislated impairment tables--all failed to alter the growth trajectory (some due to legal inadequacies). Legislative measures such as enactment of impairment tables in the 1990s; the 2006 halving, from 30 to 15, of the number of hours defined as constituting a capacity for work; and the broadening at this time of the pool of disability assessors from medically qualified people to 'job capacity assessors'--are just three legislative examples of failed measures so far as capping growth in numbers is concerned. Difficulties were also encountered in conceptually aligning eligibility for Disability Support Pension (DSP) with contemporary understandings of a 'social' rather than a medical model of disability, as the pension reforms pushed in the opposite direction (Carney 2003).

But what are the underlying forces, and will the 2011-12 round of reforms fare any differently? In reflecting on this we need to understand what the drivers may be. One thing we have known from the outset is that structural change to the labour market was a major source of pressure on disability payments, especially for unskilled older male workers, including unskilled migrants engaged in post-WW2 manufacturing industries (Stricker & Sheehan 1981). Another is that closure of pension payments for older women (as increased pension ages phased in) and widows without children (when these favourable gender specific payments for women were abolished), saw roughly commensurate surges in the numbers of women on disability payments (Perry 2011, personal communication). Widening of the gap between the (poverty level) Newstart rates of payment and the more adequate (if certainly not princely) pension rates is undoubted another. Cultural factors too are at work: a whole generation or more of workers came to expect early retirement at age 60, or earlier, partly fuelled by perverse pre-reform-era superannuation arrangements favouring lump sum payments able to be spent prior to reaching pension age. Delayed rehabilitation interventions for injured workers, which 'miss the window of opportunity for recovery', are another adverse influence to consider; complicated because workers compensation (variously now Work Care/Cover) and motor accident compensation is a State/Territory not a Commonwealth (national) sphere of responsibility.

So in what ways might the latest reform package (FaHCSIA 2011) do better than its predecessors and what are its implications for client rights and review? For the stock of existing DSP recipients there is a welcome (and long overdue) policy shift towards boosting incentives to take part-time work without jeopardising ongoing DSP eligibility, by offering enhanced monetary rewards under the generous tapering of external earnings, and some prospects of gradual extension of hours of part-time work. But since existing DSP clients have already long passed the window of opportunity for rehabilitation, the reduction of DSP pensioners drawn from this pool is likely to be small. From July 2012 those under 35 of age with a work capacity of at least eight hours per week will also become subject to a participation requirement, but while this sensibly targets the group most amenable to work re-entry, it remains to be seen what its actual impact will be on this sub-set of the current stock of DSP recipients.

For new applicants for DSP from September 2011, other than the severely impaired, arguably the most significant change is the insistence on provision of 'sufficient evidence' of inability to work, despite receipt of 'appropriate employment assistance' (currently interpreted as participation in a general open employment service or vocational rehabilitation program). Applicants not meeting this requirement now have their claims rejected and are referred to an appropriate employment service for a program of support, for up to 18 months, (5) during which time they are kept on other payments, generally Newstart. Even though this is mainly an administrative rather than a policy change, and has been implemented in a softer form than the original announcement implied, (6) it seems likely to delay significant numbers of claims previously accepted on this aspect. Locked-in for a longer period of reliance on the austere Newstart rate, there will certainly be great pressure to exploit whatever opportunities remain for returning to work, though this will no doubt have seriously impoverishing effects for an already vulnerable group of people.

The revised Impairment Tables (Advisory Committee 2011: Appendix F), which are estimated from a pilot study to exclude around 40 per cent of those accepted under the previous tables (Taylor Fry 2011: 1) may or may not end up having as large an impact as suggested by the trial; at least if past experience is any guide. Rather the maintenance of the broadened pool of assessors, and some differences in approaches depending on their discipline backgrounds, may instead continue to be of greater import.

Changing welfare rights paradigms?

New welfare paradigms such as conditional welfare, social inclusion or place-based welfare may reasonably be expected to call into existence new, matching forms of advocacy and review.

New advocacy?

What does all this mean for welfare rights? One implication is that structural change achieved through winning test cases of novel arguments is even less viable than it ever was: it is over a quarter of a century since commentators first observed the phenomenon of governments ignoring the impact of adverse rulings outside the individual case (Froehlic 1985; Maranville 1986; Carney 1989); and retrospective legislation to restore an invalidated policy is not rare in social security, even in anticipation of an adverse ruling, as in the recent High Court of Australia ruling in Commonwealth Director of Public Prosecutions v Poniatowska [2011] HCA 43 (26 October 2011)

A related implication is that the 'purchase' of law is reduced (or reduced in scope): not only are areas such as case-management decisions partially withdrawn from external review (as with the terms or content of Employment Pathway Plans for those required to seek work or other activities), but law struggles to find viable ways of realising positive socio-economic rights like access to the services bundled in with income under 'conditional welfare', such as place-based welfare; see, for example, in health Harrington & Stuttaford (2010).

Another implication is that advocacy needs and models of advocacy may shift, in various ways. As more assertive or better informed clients emerge --and consistent with UN treaties such as the Convention on Rights of Persons with Disabilities 2006 (CRPD 2006) with its endorsement of supported decision-making ahead of traditional 'substitute' decision-making--more weight can be expected to be given to facilitating 'self-advocacy' (standing 'behind' clients) rather than the more common practice of supported advocacy ('standing beside' clients in a partnership between client and advocate), much less the traditional 'representation' (standing 'in front of' clients). This first is already a primary approach to social security representation adopted by many members of the Welfare Rights Network. Such supplementing of the existing knowledge base of clients, to better equip them to cope with the increasing (and sometimes impossible) complexity of decisions will undoubtedly come increasingly to the fore in many areas, as is already the case in navigating admission to residential aged care or disability services. Indeed, determining the efficacy and limits of such supported decision making, and finding ways to achieve it in practice, is one of the major policy challenges now required to be sorted out following adoption of the CPRD.

The attenuation of Weberian accountability and its replacements?

As accountability regimes alter in mode (for example, the composition of panels, extent of use of conciliation and alternative dispute resolution methods), or model (for example, from substantive review of concrete issues to examination of professional issues associated with many welfare-service questions)--new strategies of individual advocacy and support will need to be considered.

For instance, to the extent that the substance of a social security or welfare issue is contracted out to private providers, that issue becomes largely insulated from the public gaze (meaning less policy transparency) and is much less responsive to orthodox external administrative review (Diller 2000: 1128; Gilman 2001; Bacon 2002). Different approaches may therefore need to be considered to secure fairness and merits review of such issues.

Moreover, some shifts may undermine the comparative simplicity of administration of fundamental pillars of Australia's current social security architecture. For instance, with declining numbers of workers remunerated as wage and salary earners, significant levels of negative gearing of property income, and other pressures favouring establishment of family trusts or company structures--the integrity of the measure of 'income' currently used to determine need is degrading for all but the dwindling numbers of 'standard' employees. Private trust and private company provisions since 2002 certainly now expose the underlying financial realities to examination (SSA 1991: Part 3.18, ss1207-1209K); but accountancy practices in drawing up profit and loss statements or balance sheets of the self-employed or contractors mean that it can now be very difficult and quite time consuming to obtain reliable measures of financial capacity, short of engaging in an exercise of forensic accounting.

This is all perhaps best illustrated by applications in the child support jurisdiction for a 'departure' from the child support formula. While pre-hearing conference and general settlement powers (CS(RA)A1988: ssl03, 103W) offered some space for alternative dispute-resolution approaches to child support matters, the more challenging 'ground 8' change of assessment applications based on special circumstances rending application of the formula 'unjust'(CS(A) A 1989, s98L(1)(a))--test, perhaps to breaking point, the current capacity of administrative review to provide merits review. Some SSAT reviews for instance have been set aside for an error of law on the basis that they essentially but wrongly considered adjusting 'within the formula' (by inserting different values into the calculation), rather than depart from the formula by independently setting an amount which meets the various statutory objectives, as the law arguably requires (Re Voss, 2009; Re Wales 2010). The whole purpose of the departure provisions is to enable adjustment for situations where the formula does not capture the special complexities of the case at hand. The focus therefore should be on determining the particular needs of the particular child or children in the case under review (such as whether needs are different from those stipulated in 'costs of children' tables).

Channeling the more discretionary and at-large judicial process, rather than the more mechanical Child Support Agency (CSA) statutory formula enquiry in this way, is not an impossible task of course (the SSAT has long applied complex equitable principles about constructive trusts). However, it may require greater investment in the available hearing time, panel composition and allied tribunal processes and exercise of investigative powers than is currently provided for. To continue with the CSA example, it is arguably unduly challenging for the SSAT to properly discharge its 'departure from' mandate, in the absence of routine CSA appearances, representation or more generous available time to assist in getting to the bottom of questions such as what private company resources are really 'available' for child support (Re Ladd 2010), or in reasoning with precision about every last element of a calculation involving the resources of an applicant found to have withheld or misstated information (such as double counting credit card expenditure: Re Agrippa, 2010). Among other things, it must be questioned whether it is right for the CSA not to routinely attend such hearings. After all there is no one else to speak to the interests of children and the public interest issues, or to respond 'on the run' to issues raised between the remaining parental 'parties'.

There are yet other implications for social security review if Paul Smyth (2008: 55) is right about the rise of collaborative welfare, otherwise known as 'joined up government' or networked governance (see Wanna et al, 2010: 289-295). As already discussed, collaborative welfare ties-in previously disparate programs (as for instance income support and welfare services), and forms bonds between government (at various levels), non-government agencies (for-profit or not-for-profit) and civil society elements of family or volunteers. This pattern of welfare is quite common overseas (Hemerijck 2009: 89; Damgaard & Torfing, 2010) and we have already seen some of the ways such conditional welfare is coming to the fore in Australia under the banner of the NT Intervention (quarantining) and place-based welfare. However, under such arrangements it may no longer be acceptable (or viable) to confine review and accountability advice to one segment or node in that interlocked welfare and services matrix, such as by isolating review of social security issues from the associated issues of access to or quality of welfare services (such as the supply of child care places, or accessible transport, arguably so essential to any viable targeting of groups such as teenage mothers). These are also not simple issues, as illustrated by the way supported decision-making might struggle to engage with the complexities of personal budget models of service delivery for disability (and aged care) services which are rapidly being adopted as being more in tune with the principles of the CRPD 2006 (Carney 2011b, 2012 forthcoming).

Due to such pressures, radical new forms of adjudication/accountability--such as the random sampling of quality control models, provision for negotiated/ mediated outcomes, or localised administration and grievance resolution--cannot be ruled out in the future (Mashaw 2006, 2010), as discussed below. Even more orthodox (but nevertheless contentious) changes, such as a welfare division of a mega-tribunal cannot be assumed to be entirely off the agenda (Bacon, 2006; Creyke 2002).


New or 'conditional' welfare is certainly contestable, but this is not the place to try to do justice to those debates. Suffice it to say that, for better or worse, conditional welfare is now part of the furniture and it certainly has its virtues if done well.

From a normative dimension, the new welfare recalibration entails both 'a reorientation in social citizenship, away from freedom from want towards freedom to act ... and a guaranteed rich social minimum' (Hemerijck 2009: 88, emphasis in original). Such trends entail reconfiguring the former welfare state to 'create and develop welfare markets, that is social welfare provision operated by market actors' (Bode 2009: 162, emphasis in original). Done well, they may realise the German notion of the 'ensuring state' (gewahrleistungsstaat), where state responsibility extends to oversighting achievement of standards within systems predicated on, but extending beyond, mere citizen empowerment (Boysen 2009: 352-55). Done badly (such as by neglecting the provision of State/Territory or NGO services, or failing to enable review of key service-access or referral decisions), it will fail to achieve its policy objectives, while also denying clients their rights of review or accountability. As the holder of ultimate constitutional power over income support, Australian governments cannot legitimately abdicate responsibility for deficiencies in other services being tied-in as part of conditional welfare, as somehow being an unfortunate price of federal systems of government; it is not--review rights therefore arguably must encompass the quality or otherwise of the whole package.

Considerable thought has already been given overseas to the implications for administrative law and advocacy of such 'new welfare' trends as those towards government out-sourcing of services, case management, devolution to area level, and transformation of governance away from the government 'command and control' model of provision around which current administrative review (and advocacy) has been designed. Thus case management has been shown to introduce responsiveness to localised values and conditions (McDonald & Marston 2005). But there are several different forms of new regulation (or what is sometime called 'soft law'), and they may either be substituted for hard law regulatory models or be assembled in complementary, competitive or parallel forms (Trubek & Trubek 2007). The stresses imposed on this model once government is no longer a prime actor, or as more multi-faceted welfare issues are put in play, therefore draws attention back to Mashaw's work from the 1980s on two main alternative accountability pathways of professional treatment (best reflected by casework, clinical review and like domains) and bureaucratic-rationality (best reflected in models reliant on internal quality-control) (Mashaw 1974, 1985), as later developed by Mashaw (2006, 2010) as issues of accountability and governance.

One possible response to these challenges, favoured by this writer, is simply to broaden the jurisdiction of merits review tribunals to cover the welfare or government service domain previously seen as beyond their ken for involving subjective issues like 'casework' (as in the content of employment pathway plans), or 'professional' judgments (as with work capacity assessments), or issues of resource allocation (such as allocation of intensive training packages). Such review responsibilities can be discharged by traditional tribunals, as shown in areas such as review of access to special education and other services (Richardson &Genn 2007), and, in the same way that tribunals review medical reports, they can determine whether State/Territory actions are a sound basis for any federal 'new welfare' implications.

Alternatively, in similar vein, individual accountability might be split across a suite of measures, where complaints commissioners are combined with inspectorates and merits review tribunals, as is increasingly the fashion for review of access to intellectual disability services (Joffe 2010; Carney 2011b). Finally, faith may instead be placed in professional models of peer review, such as through structured second opinion and related mechanisms utilised as part of gateway issues around involuntary mental health care (Carney 2012).

These choices raise many issues beyond the scope of this article (for further discussion, see Adler 2003). But while broadened merits review still leave the question of how to cross the 'contractual divide' to change behaviour of private sector providers/or professionals (Carney 1998), the other two can perhaps lay some claim to being able to impact those spheres. In an early paper on 'managed health care', for example, Louise Trubek argued for a model of public interest advocacy characterised by collaboration, 'linked local action', and a 'diffusion of roles and practices' (Trubek 2002). This entailed continued representation of health consumers to 'ensure quality services' and 'assuage their fears'. However, it additionally involved creation of state-based collaborations and partnerships with healthcare professionals (compare Considine & Lewis 2003); involvement in cross-state networks; and a lessening of emphasis on old regulatory pathways in favour of influencing 'internal structures of managed care organisations', and using 'market data-driven systems'.

Principles of deliberative democracy or establishment of additional accountability machinery may be called for. Writing recently in the Clearinghouse Review, Bach (2011) explores the contribution (and limitations) of deliberative democratic strands of what Australia would now term a 'place-based' approach to privatised welfare-to-work contracts (Vincent-Jones 2000; Bezdek 2001). To 'render meaningful community participation in the governance structure,' she advocates:

the creation of a body to monitor social service contracts. Perhaps the most important attribute of any monitoring structure is assurance that substantial participation by welfare recipients and low-income communities is part of all aspects of the body's work. Such a structure would broaden the range of participants in policy formulation and augment and build on the political power of community-based groups (Bach 2011: 552).

In addition to empowering such a body with a genuine degree of community control (also, more elaborately, contended for by Melish, 2010), Bach envisages that the new body should oversight procurement (the letting of Job Services Australia job matching agency contracts, to take an Australian example) and commissioning of evaluative research (Bach 2011: 553).

Currently of course, both of these areas are closely held by the relevant Australian policy department (DEEWR) in the presumed interests of efficiency and of an 'accountability' which Mulgan, for one, found wanting overseas (Mulgan 2006). Thus the politics of any such institutional reforms would likely be anything but smooth. Deliberative democratic pathways are even stonier ground on any dispassionate reading of the current political environment, however, so such measures should not be discounted.

In raising these issues this article does not pretend to have ready-made solutions to offer as a way of renovating accountability, review and advocacy arrangements. Nor does it necessarily intend to convey endorsement of any of the options canvassed; some may not work, some may not be politically or operationally viable, or may do more harm than good. Surely, however, it is past time that we began to debate the pros and cons for Australia of a 'new administrative law' and new forms of welfare advocacy?


Adler, M. (2003) 'A socio-legal approach to administrative justice,' Law & Policy, 25 (4), 323-52.

Advisory Committee (2011) Final Report: Review of the Tables for the Assessment of Work-related Impairment for Disability Support Pension. Canberra, Department of Families, Housing, Community Services and Indigenous Affairs.

Bach, W.A. (2011) 'Responding to welfare privatization: new tools for a new age', Clearinghouse Review, 44 (11/12), 545-54.

Bacon, R. (2002) 'Rewriting the social contract? The SSAT, the AAT and the contracting out of employment services', Federal Law Review, 30, 39-68.

Bacon, R. (2006) Amalgamating tribunals: a recipe for optimal reform. PhD thesis, University of Sydney (unpublished) handle/2123/621.

Bezdek, B. (2001) 'Contractual welfare: non-accountability and diminished democracy in local government contracts for welfare-to-work services', Fordham Urban Law Journal, 28 (5), 1559-1610.

Billings, P. (2010) 'Social welfare experiments in Australia: more trials for Aboriginal families?', Journal of Social Security Law, 17 (3), 164-97.

Bode, I. (2009) 'On the road to welfare markets: institutional, organisational and cultural dynamics of a new welfare state settlement'. In J. Powell & J. Hendricks (eds), The Welfare State in Post-Industrial Society: A Global Perspective, Dordrecht, Springer.

Boysen, S. (2009) 'Germany'. In: M. Krajewski, U. Neergaard & J. Van De Gronden (eds) The Changing Legal Framework for Services of General Interest in Europe: Between Competition and Solidarity, The Hague, T.M.C Asser Press.

Brown, K. (2011) "Vulnerability': handle with care', Ethics and Social Welfare, 5 (3), 313-21.

Carney, T. (1989) 'Administrative law in the welfare state: cloaking the bureaucratic dagger?', Canberra Bulletin of Public Administration, 58, 123-32.

Carney, T. (1991) 'Disability support pension: towards workforce opportunities or social control?', University of New South Wales Law Journal, 14 (2), 220-46.

Carney, T. (1998) 'Merits review of 'contractual' social security payments', Journal of Social Security Law, 5 (1), 18-43.

Carney, T. (2003) 'Disability and social security: compatible or not?', Australian Journal of Human Rights, 9 (2), 139-72.

Carney, T. (2007) 'Travelling the 'Work-First' road to welfare reform', Just Policy, 44, 12-20.

Carney, T. (2008) 'Australian social security welfare-to-work: avoiding Freudian slips?', Journal of Social Security Law, 15 (2), 51-75.

Carney, T. (2011a) 'Conditional income transfers & choice in social services: a 'new convergence'; or just more conditions and more markets?' Paper presented at Max Planck Institute for Social Law and Social Policy, Munich, Germany, July [Revised for G. Meagher & S. Goodwin (eds) Markets, Rights and Power in Australian Social Policy, Sydney, Sydney University Press, forthcoming].

Carney, T. (2011b) 'Participation rights, family decision making & service access: a role for law?', paper presented to the 6th Roundtable on Intellectual Disability, Melbourne, November.

Carney, T. (2012) 'Mental Health Tribunals--rights, protection & treatment; or 'space' for tribunals as governance?', International Journal of Law and Psychiatry, 35 (1), 1-10.

Carney, T. (2012 forthcoming) 'Guardianship, citizenship and theorising substitute decision making law'. In I. Doron & A. Soden (eds). Beyond Elder Law: New Directions in Law and Aging, NY, Springer.

Carney, T. & Hanks, P. (1986) Australian Social Security Law, Policy and Administration, Melbourne, Oxford University Press.

Carney, T. & Ramia, G. (2002) 'Mutuality, Mead & McClure: more big 'Ms' for the unemployed?', Australian Journal of Social Issues, 37 (3), 277-300.

Carney, T. & Ramia, G. (2010) 'Welfare support and "sanctions for non compliance" in a recessionary world labour market: post-neoliberalism or not?', International Journal of Social Security and Workers Compensation, 2 (1), 29-40.

Carson, E. & Kerr, L. (2010) 'Contractualism and social inclusion: strands of policy emulation in UK and Australian local employment services', Policy & Politics, 38 (1), 41-55.

Considine, M. & Lewis, J. (2003) 'Networks and interactivity: making sense of front-line governance in the United Kingdom, the Netherlands and Australia', Journal of European Public Policy, 10 (1), 46-58.

Creyke, R (2002) 'Tribunals and access to justice', Queensland University of Technology Law and Justice Journal, 2 (1), 64-82

Damgaard, B. & Torfing, J. (2010) 'Network governance of active employment policy: the Danish experience', Journal of European Social Policy, 20 (3), 248-62.

Davies, J.S. (2009) 'The limits of joined up government: towards a political analysis', Public Administration, 87 (1), 80-96.

Diller, M. (2000) 'The revolution in welfare administration: rules, discretion and entrepreneurial government', New York University Law Review, 75 (5), 1121-1220.

Dwyer, P. (1998) 'Conditional citizens? Welfare rights and responsibilities in the late 1990s', Critical Social Policy, 18 (4), 493-517.

Dwyer, P. (2004) 'Creeping conditionality in the UK: from welfare rights to conditional entitlements?', Canadian Journal of Sociology, 29 (2), 265-87.

Dwyer, P. (2008) 'The conditional welfare state'. In M. A. Powell (ed.) Modernising the Welfare State: The Blair legacy, Bristol, Policy Press, 199-218.

FaHCSIA 2011 Review of the tables for the assessment of work-related impairment for Disability Support Pension, Canberra, Department of Families, Housing, Community Services and Indigenous Affairs http://www. aspx

Froehlic, M. (1985) 'Administrative nonacquiescence in judicial decisions', George Washington Law Review, 53 (1-2), 147-67.

Gilman, M. (2001) 'Legal accountability in an era of privatized welfare', California Law Review, 89, 569-642.

Harrington, J. & Stuttaford, M. (eds) (2010) Global Health and Human Rights: Legal and Philosophical Perspectives, London, Routledge.

Hemerijck, A. (2009) 'In search of a new welfare state in Europe: an international perspective'. In J. Powell & J. Hendricks (eds) The Welfare State in Post-Industrial Society: A Global Perspective, Dordrecht, Springer, 71-98.

Henman, P. (2004) 'Targeted! Population segmentation, electronic surveillance and governing the unemployed in Australia', International Sociology, 19 (2), 173-91.

Henman, P. & Adler, M. (2001) 'Information technology and transformations in social security policy and administration: a review', International Social Security Review, 54 (4), 23-47.

Henman, P. & Adler, M. (2003) 'Information technology and the governance of social security', Critical Social Policy, 23 (2), 139-64.

Henman, P. & Marston, G. (2008) 'The social division of welfare surveillance', Journal of Social Policy, 37 (2), 187-205.

Hutchinson, T., Dickson, E. & Chappell, D. (2011) 'Juvenile justice and truancy legislation', Alternative Law Journal, 36 (2), 104-109.

Joffe, K. (2010) 'Enforcing the rights of people with disabilities in Ontario's developmental services system

Kemp, D. 2011 'Cameron backs plan to evict convicted rioters', Sydney Morning Herald, 12 August 20110811-1iow8.html

Lindsay, C. & McQuaid, R.W. (2009) 'New governance and the case of activation policies: comparing experiences in Denmark and the Netherlands', Social Policy & Administration, 43 (5), 445-63.

Maranville, D. (1986) 'Nonacquiescence: outlaw agencies, imperial courts and the perils of pluralism', Vanderbilt Law Review, 39, 471-538.

Marston, G., Moss, J. & Quiggin, J. (eds) (2010) Risk, Welfare and Work, Melbourne, Melbourne University Press.

Mashaw, J. (1974) 'The management side of due process: some theoretical and litigation notes on the assurance of accuracy, fairness and timeliness in the adjudication of social welfare claims', Cornell Law Review, 59, 772-824.

Mashaw, J. (1985) Bureaucratic Justice: Managing Social Security Disability Claims, New Haven, CT, Yale University Press.

Mashaw, J. (2006) 'Accountability and institutional design: some thoughts on the grammar of governance'. In M. Dowdle (ed.) Public Accountability: Designs, Dilemmas and Experiences, NY, Cambridge University Press, 115-56.

Mashaw, J. (2010) 'Bureaucracy, democracy and judicial review: the uneasy coexistence of legal, managerial and political accountability'. In R. F. Durant (ed.) Handbook of American Bureaucracy, Oxford, Oxford University Press.

McClure, P. (2000) Final Report: Participation Support for a More Equitable Society. Canberra. Reference Group on Welfare Reform.

McDonald, C. & Marston, G. (2005) 'Workfare as welfare: governing unemployment in the advanced liberal state', Critical Social Policy, 25 (3), 374-401.

McDonald, C. & Marston, G. (2006) 'Room to move? Professional discretion at the frontline of welfare-to-work', Australian Journal of Social Issues, 41 (2), 171-82.

Melish, T.J. (2010) 'Maximum feasible participation of the poor: new governance, new accountability, and a Twenty-First Century war on the sources of poverty', Yale Human Rights and Development Law Journal, 13, 1-133.

Mulgan, R. (2006) 'Government accountability for outsourced services', Australian Journal of Public Administration, 65 (2), 48-58.

Needham, C. (2011) 'Personalization: from story line to practice', Social Policy & Administration, 45 (1), 54-68.

Productivity Commission (2011a) 'Caring for Older Australians,' Canberra, Productivity Commission .

Productivity Commission (2011b) 'Disability Care and Support.' Canberra, Productivity Commission

Richardson, G. & Genn, H. (2007) 'Tribunals in transition: resolution or adjudication?', Public Law, Spring, 116-41.

Sainsbury, R. (2010) '21st Century welfare--getting closer to radical benefit reform?', Public Policy Research, 17 (2), 102-107.

Sainsbury, R. & Stanley, K. (2007) 'One for all: active welfare and the single working-age benefit'. In J. Bennett & G. Cooke (eds) It's All About You: Citizen-centred welfare, London, Institute for Public Policy Research.

Smyth, P. (2008) 'Collaborative governance: the community sector and collaborative network governance'. In J. O'Flynn & J. Wanna (eds) Collaborative Governance: A New Era of Public Policy in Australia? Canberra, ANU E Press.

Special Issue 2002 Queensland University of Technology Law and Justice Journal, 2(1).

Stebbing, A. & Spies-Butcher, B. (2010) 'Universal welfare by "other means"? Social tax expenditures and the Australian dual welfare state', Journal of Social Policy, 39 (4), 585-606.

Stricker, P. & Sheehan, P. (1981) Hidden unemployment: the Australian experience, Melbourne, Institute of Applied Economic and Social Research.

Taylor Fry (2011) Analysis of the testing of draft impairment tables, Department of Families, Housing, Community Services and Indigenous Affairs, Canberra.

Tepe, M. & Vanhuysse, P. (2010) 'Elderly bias, new social risks and social spending: Change and timing in eight programmes across four worlds of welfare, 1980-2003', Journal of European Social Policy, 20 (3), 217-34.

Treasury (2010) Intergenerational Report 2010--Australia to 2050: Future Challenges. Canberra, Department of the Treasury.

Treasury (2011) Building Australia's Future Workforce: Trained Up and Ready for Work, Canberra, Department of the Treasury,.

Trubek, D. & Trubek, L. (2007) 'New governance and legal regulation: complementarity, rivalry and transformation', Columbia Journal of European Law, 13 (3), 539-64.

Trubek, L. (2002) 'Public interest lawyers and new governance: advocating for health care', Wisconsin Law Review, 2, 555-602.

Vincent-Jones, P. (2000) 'Contractual governance: institutional and organizational analysis', Oxford Journal of Legal Studies, 20 (3), 317-51.

Walker, A. (2002) 'The politics of intergenerational relations', Zeitschrift fur Gerontologie und Geriatrie, 35 (4), 297-303.

Wanna, J., Butcher, J. & Freyens, B. (2010) Policy in Action: The Challenge of Service Delivery, Sydney, UNSW Press.

Cases and Legislation

Re Agrippa 2010 Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144

Re Boyling 2009 Re Boyling and Sec DFHCSIA [2009] AATA 100

Re France 2011 Re France and Sec DEEWR [2011] AATA 463 (30 June 2011)

Re Hicks 2009 Re Hicks and Sec DFHCSIA [2009] AATA 939

Re Henderson 2008 Re Henderson and Sec DFHCSIA [2008] AATA 468

Re Holt 2010 Re Holt and Sec DEEWR [2010] AATA 143

Re Official Trustee 2011 Re Official Trustee on behalf of Jennie Martyniak and Secretary, DFHCSIA [2011] AATA 5

Re Ladd 2010 Ladd & Child Support Registrar & Anor (SSAT Appeal) [2010] FMCAfam 23

Re Pelka 2008 Pelka v Secretary, DFHCSIA [2008] FCAFC 92

Re Voss 2009 Voss and Child Support Registrar and Anor (SSAT appeal) [2009] FMCAfam 1296

Re Wales 2010 Wales & Falls & Anor (SSAT Appeal) [2010] FMCAfam 116

CS(A)A 1989 Child Support (Assessment) Act 1989 (Cth)

CS(RA)A 1988 Child Support (Registration and Assessment) Act 1988 (Cth)

FA(A)A 1999 Family Assistance (Administration) Act 1999 (Cth)

SSA 1991 Social Security Act 1991 (Cth)

SS(A)A 1999 Social Security (Administration) Act 1999 (Cth)


(1) See SS(A)A 1999 ss 123UCA [vulnerable welfare clients], 123UCB [disengaged youth] 123UCC [long term welfare payment recipients], 123UD [school enrolment], 123UE [school attendance], 123UF [referral by Qld Commission], 123UFA, 123UM [by agreement].

(2) The Act speaks broadly of being a 'vulnerable welfare client': SS(A)A 1999 s123UCA(c). Currently, vulnerable welfare clients are designated (for a period of up to 12 months) by individual written determinations of a delegate of the Secretary, acting in accordance with any Ministerial guideline, subject to a right to request internal reconsideration every 90 days: ss 123TC (and the definition and review supplied by s123UGA).

(3) As defined in s123TH(1), amplified for example by Ministerial specification to cover educational toys: s123TH(q), Social Security (Administration) (toys are a priority need) Specification 2010 (11 March 2010).

(4) Social Security (Administration) (Vulnerable Welfare Payment Recipient) Principles 2010 (29 July 2010), cl 3(2), 5(1)(a) [indicators and requirement to find at least one], 5(1)(b)-(d) [additional required findings]. See also cl 2(3)-(5) for definitions of three of the 'indicators'.

(5) Elaborated in a Ministerial determination listing designated providers, requiring that the program be tailored to the person's needs (and provided in the last 36 months), and authorising shorter durations of participation where termination was for reasons such as that it was a shorter program, or proved unsuitable: Social Security (Requirements and Guidelines--Active Participation for Disability Support Pension) Determination 2011 [subsequently 'Determination 2011'].

(6) No additional requirement is imposed for an applicant with a 'severe impairment' (someone who achieves the required 20 point impairment rating from a single functional table: Social Security Act 1991, s 98(3B)). Applicants reliant on a 20 point score derived from two or more functional tables of impairment must have 'actively participated' in a 'program of support': ss 98 (3C), (5) and Determination 2011 cl 6. Participation is required for 18 months in the previous 3 years (Determination 2011 cl 5(1),(2)), unless the program was for less than 18 months (such as a work for the dole program) and it was successfully completed: cl 5(3).
Gale Copyright: Copyright 2011 Gale, Cengage Learning. All rights reserved.