Human rights focus of racial discrimination case settlement

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This class action against the Commonwealth of Australia found that mutual obligation requirements for access to social welfare payments are discriminatory against certain groups, and provided a landmark settlement premised on a human rights outcome rather than righting alleged historical wrongs. 

This was a class action against the Commonwealth by indigenous persons from a remote community in a socio-economically disadvantaged area of Western Australia (Ngaanyatjarraku). The class alleged that the ‘mutual obligation’ requirements which obliged applicants for NewStart Allowance to engage in minimum periods of work and make a minimum number of applications for work in the period between July 2015 and May 2019 were discriminatory. The parties agreed to settle the proceeding following a successful private mediation.

In this judgment, White J approved a settlement of the proceeding. The settlement is somewhat unusual, insofar as it does not involve the payment of compensation by the respondent to class members. Rather, it is forward-looking and is premised on achieving a human rights-based outcome rather than trying to right alleged wrongs of the past. A significant part of the settlement concerns the empowering of class members and other Ngaanyatjarra people to meaningfully participate in, and directly shape, the development of policy and practices that affect their lives through new approaches that addresses the concerns, and meets the economic, social and cultural needs, of the class members and the broader communities. In approving the settlement, his Honour noted that this is consistent with the community's tradition of acting in a collective or community way, and seeking an overall advantage for their remote community rather than pursuing individual claims for relatively modest amounts.

His Honour also observed that a significant matter bearing upon an assessment of the fairness and reasonableness of the parties' settlement at an early stage of the proceeding was the complexity, enlarged costs and protracted duration of the litigation if the settlement is not approved and the matter were to proceed. 

The support of the members of the claim group, and of the Ngaanyatjarra Community more generally, for the settlement was a related and particularly important consideration. This was because of the extensive involvement of the community in the two mediations that gave rise to the settlement. Although the approval of the settlement would mean individuals would be foregoing the opportunity to obtain individual benefits in favour of the community more generally being advantaged, his Honour was satisfied that, other than in minor ways which are of no consequence, all class members were properly notified and had the opportunity to express individual views regarding the proposed settlement.

Dawson v Commonwealth of Australia (No 2) [2021] FCA 1636

Federal Court of Australia, White J,
13 December 2021

Applicants’ Solicitors: Johnston Withers Lawyers;
Respondent’s Solicitors: Australian Government Solicitor;
Applicants’ Funder: N/A

Austlii Link: Available here

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