Dawson v Commonwealth of Australia

Relevant principles 15 The principles on which the Court acts on applications of the present kind have been settled in a number of the authorities. In discharging its function under s 33V, the Court acts in a protective role, i.e, in a manner similar to that exercised when the Court is considering the approval of an infant's claim: Australian Securities and Investments Commission v Richards [2013] FCAFC 89 at [8]. 16 The central question for the Court's consideration is whether the proposed settlement is fair and reasonable in the interests of group members considered as a whole. In Camilleri v The Trust Co (Nominees) Ltd [2015] FCA 1468 at [5], Moshinsky J helpfully summarised many of the applicable principles. It is not necessary to repeat them in these reasons. I will address later particular matters bearing upon the application of the principles which are pertinent in this case.

Evidence 17 For the purposes of considering the application for approval, I have had regard to the eight affidavits of the applicants' solicitor, Ms Bennett, affirmed 7 and 27 October 2021, 18 and 19 November 2021 and 9, 10 and 13 December 2021, two in the last case, and the affidavit of Mr Barker, a senior executive lawyer in the Australian Government Solicitor's Office, affirmed 9 December 2021. Mr Barker has had the conduct of the proceedings on behalf of the Commonwealth. I will make an order pursuant to s 37AF of the FCA Act in respect of the opinion of counsel which is Annexure KJB-11 to the affidavit of Ms Bennett made on 10 December 2021. 18 In addition to the affidavits, I have also been assisted by the helpful submissions from both the applicant and the Commonwealth, as well as by their oral submissions today.

Further background 19 By way of further background, I add the following. 20 Following the amendment of the proceedings pursuant to the Court's orders of 29 October 2021, the claim group has comprised persons satisfying the following criteria: (a) resident of the Shire of Ngaanyatjarraku; and (b) between the ages of 22 and 54 (inclusive); and (c) participating in the Community Development Program; and (d) … (e) a party to a Job Plan that contained a term pursuant to s 606(1) of the Social Security Act 1991 (Cth) as it applied for the period 1 July 2015 to 23 March 2019 (which was approved by the Secretary under s 606(2) of that Act), to the effect that the person: (i) during the period 1 July 2015 to 1 March 2019, complete in any week the number of hours in Work for the Dole and/or another approved activity specified below: A. 25 hours (if the person was aged 22 to 29 years), or B. any number of hours from 0 to 25 hours (if the person was aged 30 to 49 years), or C. any number of hours from 0 to 25 hours (if the person was aged 50 to 54 years), or (ii) during the period 1 March 2019 to 23 May 2019, complete in any week 20 hours in Work for the Dole and/or another approved activity; and (f) … (g) … (h) in receipt of activity tested income support known as NewStart Allowance. 21 The description of persons in subpara (e) of the definition can be paraphrased as those who are party to a job plan which contained a term pursuant to s 606(1) of the SS Act (which was approved by the Secretary pursuant to s 606(2)) to the effect that the person complete a number of hours each week in Work for the Dole or in another approved activity, which (varied according to the person's age). The terms pursuant to s 606 were known as "Activity Requirements" or as "Mutual Obligation Requirements". 22 The CDP commenced on 1 July 2015 with a view to delivering employment and community development services to participants or eligible "jobseekers" in designated remote areas throughout Australia. The Shire of Ngaanyatjarraku is a designated remote area to which the CDP applies. During the period 1 July 2015 to 23 May 2019 (which is the claim period in the proceedings), the CDP was administered by the Department of Prime Minister and Cabinet. It is now administered by the National Indigenous Australians Agency (NIAA). 23 During the claim period, approximately 80% of participants aged 18-49 in CDP Australia wide were of Aboriginal or Torres Strait Islander descent. The proportion in the 22-54 year age bracket, who make up the claim group, may have been fractionally lower. 24 As I have already noted, the applicants alleged in their FASC that the specified hours in the Work for the Dole or other approved activity for the purposes of the CDP were higher than those specified in the Commonwealth's mainstream JobSeeker program which applied during the claim period to jobseekers outside of designated remote areas. This formed the basis of the claim that the Commonwealth was breaching ss 9(1), 9(1A) and 10 of the RD Act. 25 The evidence indicates that Ngaanyatjarra Community members experienced a number of problems resulting from the manner of implementation of the CDP. These included: (a) the mutual obligation requirements or activity requirements for Work for the Dole were regarded as too high and not proportionate to the opportunities and assistance available to jobseekers in their remote community, with the consequence that they found compliance with the obligations difficult; (b) the "safety nets" for which the scheme provided, such as Employment Service Assessments and Comprehensive Compliance Assessments were ineffective; (c) the training required to progress through levels of certified competencies was inaccessible; and (d) the penalties imposed for non-compliance were significantly higher than those imposed under the previously applicable Commonwealth Development and Employment Program (CDEP). 26 It was those problems which led to the initial complaint to the AHRC and ultimately to the commencement of proceedings in this Court. 27 The Honourable Robert French AC QC conducted a substantial mediation of the issues while the matter was before the AHRC. This included two days of mediation in Warburton itself which was attended by large numbers of community members. Several gave evidence during the mediation. Before the mediation, an anthropologist had prepared statements from members of the communities in relation to their experience with CDP and the Shire engaged in extensive consultation with community leaders and the Ngaanyatjarra Council in relation to the effects of CDP on the communities. I mention this because it is indicative of the substantial involvement of group members and of the wider Ngaanyatjarra Community in the complaint which led to the proceedings and, in turn, to their interest in obtaining a collective outcome to the complaint. 28 The complainants to the AHRC had sought to use the mediation to obtain an agreement from the Commonwealth that it and the Ngaanyatjarra Community develop a pilot for a Work for the Dole program tailored to the particular circumstances of a remote traditional Aboriginal community. 29 By reason of dissatisfaction with the reforms to CDP introduced by the Commonwealth in 2019, the complainants sought the termination of the complaints to the AHRC, which was granted, and the applicants then commenced the proceeding in this Court. 30 I have already referred to the mediation of the proceedings conducted by the Honourable Michael Barker QC and by Ms Zita Antonios. On any view, this was an extensive and protracted mediation, even taking account of the delays occasioned by the COVID-19 pandemic. In fact, that pandemic complicated the conduct of the mediation. However, it is apparent on the evidence that the mediation had extensive community engagement as those who participated in it included indigenous community leaders, elected members of the Shire of Ngaanyatjarraku, the President and Deputy President of the Shire, and representatives of the Ngaanyatjarra Council. In addition, throughout the mediation process, the applicants consulted with the Shire Board and the Board of the Ngaanyatjarra Council. The mediation culminated in the execution of a deed of settlement by the applicants on their own behalf and on behalf of the defined group members, by the Shire of Ngaanyatjarraku, by the Ngaanyatjarra Council, and by the Commonwealth in September 2021. 31 Again, I have mentioned the extensive community engagement in the mediation process as it underlines the collective approach of the applicants and the group members to the resolution of the proceedings and gives the Court confidence that there is wide community support for the Court's approval of the settlement reached. 32 I add that, in the circumstances of the mediation disclosed, there is no reason to think that this is not a genuine settlement. To the contrary, I am positively satisfied that it reflects a genuine resolution on behalf of a community, more particularly the group members, of the issues raised.

Elemens of the settlement 33 There are six principal elements in the settlement. 34 The first is the 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 elements of the proposed pilot program are set out in Schedule 1 to the Deed of Settlement, which is Annexure KJB-1 to Ms Bennett's affidavit of 7 October 2021. It is not necessary presently to set out the detail of the proposed scheme. 35 A key word in the Deed of Settlement on this topic is, however, "intend", i.e, the Commonwealth intends to take the appropriate legislative and administrative action. However, the Court can be satisfied that this is a serious commitment. Both the applicants and the Commonwealth referred to the following paragraphs in the applicants' submissions: [73.1] on 11 May 2021, the Minister for Indigenous Australians, the Hon Ken Wyatt AM MP, announced the introduction of a new remote jobs program in 2023 (now referred to as the Remote Engagement Program), to replace the CDP; [73.2] on 1 September 2021, the National Indigenous Australians Agency published a discussion paper about the new Remote Engagement Program, inviting submissions in response to issues raised in the discussion paper; [73.3] on 22 October 2021, the Minister for Indigenous Australians publicly announced that the Shire of Ngaanyatjarraku would be 1 of the 5 sites at which a pilot of the Remote Engagement Program would be conducted. This was so notwithstanding that, under the Settlement Deed, the Pilot is contingent on the Court approving the settlement; [73.4] various other relevant media releases have been made by the Federal Government; [73.5] on 29 November 2021, the Social Security Legislation Amendment (Remote Engagement Program) Act 2021 was passed by the Senate, having been passed by the House of Representatives on 26 October 2021. The Act received the Royal Assent on 2 December 2021. Item 7 of Part 1 of Schedule 1 to the Act inserts a new 'Part 2.13 - Remote engagement program payment' into the Social Security Act 1991. This Part (amongst other things) provides for a Remote Engagement Program payment (being a supplementary payment) to be made to persons who meet certain qualification criteria, including that the person is participating in a remote engagement placement under the Remote Engagement Program. That payment ends on 1 July 2024. The Explanatory Memorandum states that the Bill introduces a supplementary payment to be made to eligible job seekers in remote engagement program pilot communities; [73.6] the Applicants and Communities will be part of a joint design process (see Settlement Deed, Schedule 1, cl 3) and can ensure any concerns can be properly ventilated and dealt with in that process; and [73.7] in the event that there is any dispute arising under the Settlement Deed in relation to the design, implementation or evaluation of the Pilot or the matters relating to the Remote Engagement Program, the Settlement Deed contains a robust Dispute Resolution Procedure which imposes various obligations on the parties to seek to resolve the dispute (as well as engage in dispute resolution before an independent third party, who will either have power to direct or recommend a form of resolution). (Citations omitted) 36 For those reasons, the applicants have confidence, and the Court can be satisfied, that the Commonwealth has a genuine desire to work in partnership with the Ngaanyatjarra People on the pilot program for an improved form of CDP. It is evident that the pilot program is expected to have significant benefits for the Ngaanyatjarra Community more generally. Some of those benefits will be tangible and some intangible. Amongst the latter will be the relief of stress and anxiety concerning the receipt of income support payments and the benefits which will arise from the participation of the community in the development and implementation of the pilot program. Amongst the latter will be the boost for the local economy arising from an increased circulation of money in the Ngaanyatjarra Community. 37 The second key element of the settlement is that, contingent on the settlement being approved, 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. Accordingly, group members will forego the opportunity to forego the amounts of the penalties imposed on them, which they contend are unlawful, as well as any consequential damage resulting from the imposition of those penalties. It will be necessary to return to this topic. 38 Of significance for present purposes, however, is that it is the intention of the Ngaanyatjarraku Shire and the Ngaanyatjarra Council to use the grant moneys for the benefit of the communities as a whole by expending it on: (a) an infrastructure program; and (b) an arts project at Warburton. 39 I mention in this regard that the eighth affidavit of Ms Bennett indicates that the agreement pursuant to which the sum of $2 million is to be paid to the Shire and to the Ngaanyatjarra Council has been executed earlier today, so that one step in the implementation of that part of the settlement has been progressed. 40 Thirdly, the Commonwealth will pay the applicants' costs and disbursements of the proceedings and of the first complaint to the AHRC. The agreed amount is $278,897.19. Having regard to the extensive work performed by the applicants' solicitors and counsel, there is no reason for the Court to suppose that this is not a fair and reasonable estimate of the value of the work performed by them. It certainly could not be concluded that the amount of costs and disbursements is disproportionate having regard to the benefits of the overall settlement. 41 The last three elements of the settlement comprise the provision by the applicants of releases and acknowledgement that the Commonwealth makes no admission or concession of legal liability, and the applicants' consent to the dismissal of the proceedings.

Discretionary matters 42 Although the proceedings have been on foot now for nearly two and a half years, they are still at a relatively early stage. The pleadings have not been finalised and so the full ambit of issues which may arise is not known. However, the Commonwealth has foreshadowed that in the event that the settlement is not approved and the matter proceeds, it will apply to strike out the whole, or at least substantial parts, of the applicants' FASC. Amongst other things, the Commonwealth says that it will contend that there are no, or few, common issues of law or fact justifying the pursuit of the proceedings as Pt IVA proceedings - see s 33C of the FCA Act. Even if the applicants' pleading withstands that challenge, it is evident that the Commonwealth will be seeking substantial particulars. In short, it is apparent that there is likely to be a substantial amount of interlocutory activity in the proceedings if the settlement is not approved. 43 The parties have provided realistic estimated timetables for the prosecution of the matter if it proceeds. On that basis, it can be seen that it may take another six or so years before the proceedings may be concluded. 44 It is obvious from the nature of the claims made by the applicants that they involve both legal and factual complexity. The submissions of the Commonwealth give a clear indication of why that is so. I am comfortably satisfied that, if the litigation does proceed, it will be complex, expensive and protracted. That is a significant matter bearing upon an assessment of the reasonableness and fairness of the parties' settlement at this early stage. 45 Both parties have recognised, sensibly, that there are risks in the litigation. Not unnaturally, the Commonwealth has emphasised the risks for the applicants, and the applicants have emphasised the risks for the Commonwealth. I have had the advantage of an opinion from the applicants' counsel setting out their appraisal of the prospects of success. The risk of no or only partial success for the applicants or, for that matter, for the Commonwealth, is plainly a live matter of which the parties have sensibly taken account. 46 The support of the members of the claim group and of the Ngaanyatjarra Community more generally for the settlement is a particularly important consideration. That is especially so having regard to the extensive involvement of the community in the two mediations. I add that the scheme for provision of notices and the scheme for provision of advice with respect to the notices and with respect to the settlement and concerning provision of opt-out, which the Court approved, was reasonably rigorous. Given that the individuals would be foregoing at the opportunity to obtain individual benefits in favour of the community more generally being advantaged, the Court wished to ensure that all group members were properly notified and had the opportunity to express individual views regarding the proposed settlement. I am satisfied that there has been compliance with the Court's directions with respect to the provision of notices, other than in minor ways which are of no consequence. 47 Only two opt-out notices have been lodged. They are by Vincent Campbell and Jermaine Ashwin. They will, accordingly, not be bound by the settlement. No objections to the settlement have been filed or lodged. I accept the evidence of the applicants' solicitor, based on the information provided to her by a principal community advisor, Mr McLean, that there have been no concerns or expressions of disquiet communicated to community advisors who were natural points of reference for community members. To the contrary, the affidavit of Ms Bennett affirmed today confirms that those group members who did speak to Mr McLean or to a community advisor concerning the matter, related the settlement to the mediation conducted in Warburton and reacted positively to the prospect of changes in the CDP and to the prospect of reductions in penalties. 48 I referred earlier to the potential claim for recovery of penalties and consequential loss which will be foregone by the group members. It is appropriate to have regard to the extent of the amounts being foregone. The total of the penalties imposed by the Commonwealth on the 680 group members who were subject to penalties in the claim period was $1,291,438, an average of $1793.29. 49 However, not all group members met the group definition for the whole of the period. When account is taken of that, the probable total of penalties was $534,628.77, an average of $786.22. It can, accordingly, be seen that the potential recovery for each group member in the event that he or she made out the whole of his or her personal claim would, while no doubt significant for that group member, be modest. That is especially so given the risks (perhaps even the probability) that many group members will not be able to establish all of the matters necessary in order to recover the whole of the penalties imposed on them. 50 The extent of any consequential damage resulting from the imposition of the penalties is not known but, in my view, the Court can comfortably conclude that group members are not foregoing substantial individual entitlements. It is understandable that they would take the view that it is preferable to obtain the overall advantages for their remote community rather than pursuing individual claims for relatively modest amounts. That is consistent with the community's tradition of acting in a collective or community way. 51 There is no reason for the Court to suppose that the settlement favours the interests of the applicants in the proceedings, that is to say the leaders of the class, over the remainder of the group. 52 I accept the following submissions of the applicants' counsel: [90] This settlement is forward-looking and is premised on achieving a human rights based outcome. It is not concerned with trying to right alleged wrongs of the past with payment of a (relatively) small amount to the group members. That would do nothing to address the underlying problems the Communities (including the group members) have with the CDP and the vision they have for something that better meets the needs of the group members and other Ngaanyatjarra people. [91] The CDP is not delivering on its intended objectives in the Shire of Ngaanyatjarraku for the Ngaanyatjarra people. The Commonwealth has heard what the Applicants, other communities and stakeholders have said about the CDP and, in this settlement, acknowledges that job seekers in remote communities have unique needs and concerns. [92] At a very early stage of this proceeding, the Applicants, the Communities and the Commonwealth chose to put aside their differences on questions of liability and come together to develop the key elements of, and process to further design, something new that addresses the concerns, and meets the economic, social and cultural needs, of the group members and the broader Communities. The critical role that it is intended that the group members and other Ngaanyatjarra people will have in that design process … is a significant part of the settlement itself. The settlement empowers group members and other Ngaanyatjarra people to meaningfully participate in, and directly shape, the development of policy and practices that affect their lives. [93] This, together with the $2 million grant for the benefit of Communities, will provide the best possible chance for sustained improved outcomes for the group members and other Ngaanyatjarra people. For these reasons, a price cannot be placed on this settlement. The value and benefits to group members of the settlement (discussed above) are very real and significant but cannot (or cannot adequately) be measured in monetary terms. (Citations omitted)

Summary and conclusion 53 I repeat that this is an unusual Pt IVA action and the settlement proposed is unusual. It takes account of the particular circumstances and nature of the Ngaanyatjarra Community and the consideration of their long term interest. I am comfortably satisfied that the settlement negotiated in the extensive mediation is fair and reasonable and in the interests of group members considered as a whole and, accordingly, I will make the orders sought by the parties. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.

SCHEDULE OF PARTIES SAD 154 of 2019 Applicants Fourth Applicant: JANIKA HUNT Fifth Applicant: JESSIE WEST