Introduction
This case concerned an application for approval of the settlement of a class action pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (FCA). The action differed from a standard commercial class action, since it involved considerations arising from the particular nature of the class group. Namely, that they are members of a remote Aboriginal community, who expect to continue to live in the community and who have an interest in obtaining benefits for their community which will continue, rather than individual monetary benefits.
Background
The first three applicants commenced the action on 22 July 2019, while the fourth and fifth applicants joined as applicants on 29 April 2020. The applicants and group members were members of the Ngaanyatjarra Community in the Shire of Ngaanyatjaaraku in the Central Reserves Area of Western Australia. The eastern boundary of the Shire abuts the western boundaries of South Australia and the Northern Territory. It is a remote community located 1542 kilometres northeast of Perth.
The Ngaanyatjarra Council represented the interests of around 2,000 Ngaanyatjarra, Pintupi and Pitjantjatjara Traditional Owners who reside in the Ngaanyatjarra Communities. The Ngaanyatjarra Council was contracted by the Commonwealth to deliver job services to jobseekers in the Shire on income support payments under the Community Development Program (CDP).
The Commonwealth admitted that, according to the 2016 Census, 86% of the Shire’s population were Aboriginal and/or Torres Strait Islander. The applicants alleged that the per capita income of residents in the Shire was the lowest on mainland Australia. The Commonwealth did not admit that allegation but did plead matters which indicated that the Shire was an area of socioeconomic disadvantage.
In the proceedings, the applicants alleged that the Commonwealth discriminated against them and group members in contravention of ss 9(1), 9(1A) and 10 of the Racial Discrimination Act 1975 (Cth) (RDA), by requiring them to participate in the CDP to receive income support payments under the Social Security Act 1991 (Cth) (SS Act). The discrimination was alleged to be a consequence of the mutual obligation requirements imposed on NewStart Allowance recipients; Persons who did not comply with those requirements suffered the penalty of reduced social security payments or did not receive payments all together. The applicants’ claim was that the mutual obligation requirements which obliged the recipients to make a minimum number of applications for work during the period were discriminatory. The claim also alleged that the specified hours required of the CDP were higher than those specified in the Commonwealth’s main JobSeeker program, which applied to persons outside the designated remote areas.
Complaints concerning the conduct of the Commonwealth were lodged with the Australian Human Rights Commission (AHRC), first on 7 September 2016 and second on 6 March 2020. These were terminated by a delegate of the President of the AHRC on 23 May 2019 and 1 April 2020 respectively. In October 2020, the parties came to a mediated agreement. The Court then put a timetable in place for the filing of the orders under this settled agreement. The applicants filed that application on 7 October 2021. The central consideration in this case was whether the proposed settlement was fair and reasonable in the interests of group members considered as a whole.
Elements of the settlement
There were six principal elements in the settlement. These were as follows:
Intention of the Commonwealth to take all necessary or appropriate legislative and administrative action to design, implement and evaluate in the Shire a pilot program for a more appropriate CDP scheme.
The Commonwealth will grant $2 million (plus GST) to the Ngaanyatjarra Council. Apart from costs, that is the only monetary amount to be paid directly under the settlement.
The Commonwealth will pay the applicants’ costs and disbursements of the proceedings and of the first complaint to the AHRC. The agreed amount was $278,897.19.
The provision by the applicants of releases.
Acknowledgement that the Commonwealth makes no admission or concession of legal liability.
The applicants’ consent to the dismissal of the proceedings.
Decision
Based on the first element of the settlement (see above), White J held that there was a genuine desire for the Commonwealth to work with the Ngaanyatjarra People on the pilot program for an improved form of CDP.
Additionally, the Court observed that the proceedings were still at a relatively early stage and the pleadings were not finalised. His Honour noted the Commonwealth would seek to strike out the whole, or at least substantial parts, of the applicants claim if the settlement was not approved by the Courts. It was also obvious form the nature of the claims made by the applicant that they involved both legal and factual complexity. If allowed to proceed, the litigation would have been complex, expensive and protracted.
His Honour was also satisfied that there had been compliance with the Court’s directions with respect to the provision of notices, other than in minor ways which were of no consequence. Two opt out notices of Vincent Campbell and Jermaine Ashwin were lodged, thus, were not bound by settlement.
The Court then went on to consider recovery of penalties. Since not all group members met the group definition for the whole of the period, the probable total was $534,628.77, an average of $786.22. Thus, his Honour concluded that group members were not foregoing substantial individual entitlements.
Based largely on the above reasons, his Honour found that the negotiated settlement was fair, reasonable and in the interests of the group members considered as a whole. Orders were made consistent with those sought by the parties.