Indigenous Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Indigenous Law Bulletin |
|
By Jane Robbins
On 8 March this year the Warmun Community in the Kimberley region of WA won an appeal in the Administrative Appeals Tribunal (‘AAT’) against a decision by Customs that they were not eligible for a rebate under the Diesel Fuel Rebate Scheme. This was an important decision for other indigenous communities, many of which spend large amounts of money on diesel, in order to generate electricity.[1]
Warmun has also lodged a complaint in the Human Rights and Equal Opportunity Commission (‘HREOC’), arguing that the failure of the WA government and Western Power to connect the community to the State distribution system is discriminatory and results in significantly higher electricity prices for the community. This case illustrates the problems experienced by many remote indigenous communities in accessing essential services.
The Diesel Rebate Scheme has operated since 1982 and was administered by the Australian Customs Service until it was transferred to the Australian Tax Office (‘ATO’) recently. Rebates of customs/excise duties are granted for specified purposes:
a) in mining operations (otherwise than for the purpose of propelling a road vehicle on a public road);
aa) in primary production (otherwise than for the purpose of propelling a road vehicle on a public road);
b) at residential premises to generate electricity for use in:
i) providing food and drink for;
ii) providing lighting, heating, air-conditioning, hot water or similar amenities for; or
iii) meeting other domestic requirements of;
residents of the premises;
c) at a hospital or nursing home or at any other institution providing medical or nursing care; or
d) at a home for aged persons.[2]
For a number of years Warmun successfully applied for a rebate under the residential category (after subtracting an amount for electricity used for non-residential purposes, including the community offices, the school and the roadhouse). However an application for a rebate for the period December 1996 to June 1997 was refused. The disputed issue was whether the Warmun community could be said to be generating electricity at the premises.
Customs argued that the generators were located too far away from the community residences (between 200 and 700 metres) to be considered ‘at the premises’ and that, given the use of electricity by a range of facilities such as an arts centre, mechanics shop, street lighting and by commercial premises such as the roadhouse and a caravan park, the supply of electricity was more characteristic of a town than ‘on the premises’ for residential purposes.[3]
The AAT considered a number of precedents. In Collector of Customs v Rottnest Island Authority the Federal Court had ruled that to qualify for the rebate a generator must be:
in sufficient proximity to the premises as to enable it reasonably to be identified with the premises. It must be appurtenant to the premises and coherent with them.[4]
However, in the earlier Flinders Island case, Collector of Customs, Tasmania v Flinders Island Community Association, the Federal Court gave a complex analysis of what characterised use ‘at the premises’. Factors considered relevant included:
common ownership of each of those “premises” by the respondent, the proximity of each house to the generator, the existence of relationships – other than merely contractual relationships – between the respondent on the one hand and each of the residents on the other and between the residents themselves, the supply to each resident of electricity at cost rather than as a commercial transaction, the communality of operation of the generator involving each resident taking his or her share of responsibility for the supply of electricity to them all and the fact that the generator was appropriate in size and design genuinely to fulfil the purpose of supplying the domestic needs of these eight houses.[5]
The AAT was influenced by many of these factors in the Warmun decision. It was seen as significant that all the premises are owned by the Warmun community and leased to members of the community, as was the fact that the Warmun Community council is a non-profit representative body which supports the community generally, not just in the provision of power:
The residents themselves all have bonds stronger than mere coincidence of residence and are all members of Warmun Community Inc. As such, the residents purchase the fuel in their collective capacity as Warmun Community Inc but use it in their individual capacity.[6]
Other circumstances noted by the AAT were the flat rate paid for electricity by community residents in Warmun, which does not cover actual costs, and the maintenance and supervision of the generator by the residents themselves. On the question of the distance between the generator and the houses the judgment was less forthright:
Although the present case may be nearing the furthest distance which would be classed within the term “proximate”, it is still possible that this still fits within that definition.[7]
In the summary it was concluded:
The fuel is clearly bought by the people for their own domestic use, with the provision of power not being on a commercial basis. It would be quite untenable to suggest that separate generators had to be installed in order to claim the rebate.[8]
The AAT win was a relief to the Warmun Community, which cannot afford to lose the thousands of dollars involved in the rebate scheme. The decision will reassure other communities that have chosen, for sound environmental health reasons, to locate their diesel generators away from residences.[9] It is also good news for Regional Councils of the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) which have been called upon to meet the shortfall in the budgets of affected communities.[10]
But the case raises questions of equity in the operation of the Diesel Fuel Rebate Scheme. Why, for example, is the rebate available in the residential category (the category indigenous communities generally use) restricted to fuel purchased for the generation of electricity? The agriculture category (which is included under primary production) and the mining category allow rebates on fuel for a range of ‘residential’ purposes including generation of electricity, but also home heating and heating of swimming pools.
Another aspect deserves consideration from the equity or, perhaps more appropriately, from the ‘justice’ perspective. Customs argued that one of the main reasons for reviewing Warmun’s eligibility was a fear that ‘the floodgates would be opened and there would be nothing to stop any small town in rural Australia claiming the rebate’.[11] The AAT judgment dismissed this as an unrealistic concern, pointing out that very few towns would have the communality demonstrated by Warmun. But there is a specific group of towns that does share the characteristics of Warmun ¾ other remote indigenous communities, not all of which currently claim the diesel rebate.
From an equity perspective it is important that eligibility criteria for rebates do not disadvantage indigenous communities compared to non-indigenous communities. The AAT decision confirmed that communality, non-profit purposes and self-reliance are special characteristics of communities that must be taken into account when implementing the Diesel Fuel Rebate Scheme. The argument that benefits should be withheld because it would open a ‘floodgate’ is opportunistic rather than just. If cost is a significant consideration, then a fairer approach would be to review the entire scheme.
But there are also bigger questions about equity. Why are communities like Warmun expected to take responsibility for the generation of electricity, given that essential services such as power, sewerage and water are usually provided through State government utilities or, in this era of commercialisation, by a contracted service provider? Warmun’s cost for power generation are significantly higher than the price charged by Western Power. Most WA residents pay a uniform tariff, irrespective of the costs involved in generating the electricity they use.[12]
Delivery of essential services to indigenous communities in WA has been the source of considerable dispute between State and Commonwealth. Traditionally the State government has funded only those communities on a ‘list of 48’ for repair and maintenance costs.[13] This was specified in a 1986 State/Commonwealth Agreement[14], but ATSIC has repeatedly argued that it should not be expected to fund the basic infrastructure needs of indigenous communities which should have the same entitlements as any other community in the State. It has been estimated that ATSIC has spent over $5 million annually on fuel for power generation in WA communities. Expenditure for this purpose is negligible in all other States.
The Warmun community is on the National Highway, some two hundred kilometres south of Kununurra, and is a near neighbour of the Argyle diamond mine and the Ord River hydroelectric plant. Electricity produced at Ord River is transported 200 kilometres by powerlines to Wyndham, a town of 750 to 800 people.[15] Warmun is only 32 kilometres from the hydroelectricity plant and has a population of 400 to 600 (fluctuating with the seasons), yet it has to take responsibility for the generation of its own power. Warmun is not on the State government’s list of communities.
In 1998 the Warmun Community lodged a complaint in the HREOC, alleging that the failure of the WA government and Western Power to provide them with power was discriminatory, contrary to the Racial Discrimination Act 1975 (Cth).[16] The WA government argues that it has no statutory obligation to provide electricity services to all communities in the State. The provision of electricity has been corporatised in WA since 1994 and it is claimed that inclusion in the mainstream electricity scheme administered by Western Power is purely a matter of commercial profitability or historical obligation. There is therefore no racial discrimination involved in the exclusion of remote indigenous communities which were never connected to mainstream power systems and are not commercially viable customers.
But it could be argued that historical obligation is a significant aspect of this dispute completely different reasons. Many of the indigenous communities that are now established in remote places are a product of colonial policies of segregation and were historically administered as missions or reserves. The indigenous people who inhabited them had no choice but to live where they were directed ¾ under State legislation they had no right to leave without permission. In this context it seems unjust for government to adopt the principle that citizens who choose to live in remote places must take responsibility for their own essential services. It ignores a number of relevant historical and cultural factors.
Warmun’s experiences with the Diesel Rebate scheme and the State Government’s refusal to include the community in the power distribution system illustrate a broader problem of essential service delivery in remote indigenous communities.
Governments have acknowledged the problem repeatedly. Senator Herron, the Federal Minister for Aboriginal Affairs said in 1996:
[I]n urban areas, the vast majority of people have electricity at the flick of a switch, clean water, sewerage, sealed roads, hospitals and schools. In remote areas these basic services that we all take for granted are often non-existent, or sub-standard.[17]
Poor access to services in non-urban areas affects indigenous people disproportionately because more of the indigenous population lives in rural or remote locations. In WA a number of reports to government have highlighted the problems and have urged an expansion of the State’s responsibilities in the provision of services to indigenous communities to achieve ‘normalisation’,[18] yet the State Government continues to dispute its obligations with the Commonwealth Government.
It appears that the political will to confront the issues constructively and urgently is missing. Practical opportunities to address the lack of essential services in remote indigenous communities are ignored or, at best, proceed very slowly.[19] Policy decisions which could address the disadvantages of indigenous communities, are instead debated using the rhetoric of commercial viability or cost containment. Economic considerations are the legitimate concern of responsible governments but, in societies like Australia, surely the equality of opportunity and life experience of its citizens is also an important concern? The quality of basic infrastructure in many remote indigenous communities is so poor that it raises questions about Australia’s commitment to fundamental human rights. This, presumably, will not escape the scrutiny of the international media eager for stories in this Olympic year. Is this the record we wish to present to the world?
Jane Robbins is a lecturer in the School of Political and International Studies, Flinders University, Adelaide.
[1] A newspaper report suggested that another community, Warburton, could lose over $115,000 if its eligibility for rebates was withdrawn. Kalgoorlie Miner, 29/9/97, p 1.
[2] Customs Act 1901(Cth) s 164(1).
[3] Administrative Appeals Tribunal, General Administrative Division, Decisions and Reasons for Decision, No. D99/5, Re. Warmun Community (Turkey Creek) Inc. and Chief Executive Officer of Customs, 8 March 2000, pp 3-4.
[6] Administrative Appeals Tribunal, General Administrative Division, Decisions and Reasons for Decision, No. D99/5, Re. Warmun Community (Turkey Creek) Inc. and Chief Executive Officer of Customs, 8 March 2000, p 5.
[7] Ibid.
[8] Ibid 6.
[9] The finding will presumably flow on to other communities like Warakurna in the Ngaanyatjarra lands where the ATO has also withheld diesel rebates.
[10] Each ATSIC Regional Council has discretion to adopt specific formula in funding essential services. Warmun is in the Wunan Regional Council area where current policy is to fund the cost of diesel fuel used in power generation, minus the rebate, minus any power costs recovered from non-community users, minus a charge of $10 per week for every community participant in the Community Development Employment Program. Wunan Regional Council Meeting 00/4, 30 May-1 June 2000, Wyndham, WA. When Warmun lost its diesel fuel rebate, the Regional Council announced that it would stop funding power generation as it believed that it was not an ATSIC responsibility, and instead it offered to transfer the money to the State government.
[11] Above n 3, 6-7.
[12] According to a news bulletin on ABW2 on 25/3/99, 7pm, the price of power in Warmun is 3 times the city rate. Transcript, Media Monitors.
[13] The WA Government has recently increased the number of communities that it funds to 62 and the list will be increased to 72 by 2002. (Personal communication, Aboriginal Affairs Department).
[14] Aboriginal Affairs Department, WA, Remote Areas Essential Services Program: Arrangements for Repair and Maintenance of Capital Works, 04/04/98.
[15] This came about because the diesel generators at Wyndham were inefficient and in need of replacement. Ord Hydro was contracted by Western Power to generate the power and paid for the transmission lines. Western Power accepts that it has an historical obligation to provide power to Wyndham and this arrangement reduces the losses it incurs overall.
[16] West Australian, 30/3/99.
[17] Senator the Hon John Herron, Joe and Dame Enid Lyons Memorial Lecture, Australian National University, University House, Friday 15 November 1996, p 5, transcript.
[18] See Task Force on Aboriginal Social Justice ( Daube Report) Government of Western Australia April 1994; The Chief Executive Officer Working Party on Essential Services, Report of the Chief Executive Officer Working Party on Essential Services to Aboriginal Communities ( Hames Report), Government of Western Australia, June 1995; Aboriginal Affairs Legislative Review Reference Group, Provision of Services to Aboriginal People in Western Australia. An Action Plan and Proposed Legislation, (McCarrey Report), Government of Western Australia, January 1997.
[19] The WA Government has been slowly implementing a reform process that has improved some aspects of Remote Area Essential Service Program (‘RAESP’) delivery to communities included on the ‘list’. However, it is also true that there is a vast unmet demand for essential services.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/IndigLawB/2000/37.html