A PRO-BONO action being run by Arnold Bloch Leibler (ABL) on behalf of the Wadeye community in the Northern Territory could potentially net $60 to $80 million from a government accused of indirect racial discrimination over the course of three decades.
ABL lodged a claim with the Human Rights and Equal Opportunity Commission (HREOC) last week, hoping for an official apology and compensation for the community without the need to resort to the Federal Court.
Led by partner and public interest law practitioner Peter Seidel, the claim concerns one of five mission schools in the NT, and alleges gross under-funding in breach of the Racial Discrimination Act 1975.
“I hope it doesn’t [go to court]. I really do hope that wizened heads will prevail, and that there will be, in the form of conciliation, a mediated outcome,” Seidel told Lawyers Weekly.
“The community does not want to get caught in the litigation threshing machine. It has attempted in vain to have a conciliated outcome informally, and it is beyond them. It has gone some of that way through the Commonwealth initiatives, but the administrator of all of this is the Northern Territory, and it has proved immovable.”
The present situation follows years of NT administration of the Our Lady of the Sacred Heart school in Wadeye, control of which was ceded by the Commonwealth in a 1979 agreement, Seidel said. But continual under-funding by the NT Government and the use of a misleading attendance formula has resulted in what ABL says is clearly indirect racial discrimination.
“It is indirect discrimination under the 1979 agreement, which only applies to the mission schools, and then it is compounded by this attendance policy. As a consequence, it hits hardest these former mission schools, which of course are race-based,” Seidel said.
“Even though the NT [Government] says it applies this funding formula across the NT — and that’s correct — it is still racially discriminatory, because under the Racial Discrimination Act, indirect discrimination occurs if a seemingly benign condition hits peoples of a particular race harder,” he said.
“That’s exactly what is happening here, and they just don’t get it. They continue to say, when the complaint has been lodged, ‘how can it be racially discriminatory when we are applying the same formula across the Territory’. They miss the point that this hits hardest race-based schools, and that is racial discrimination writ large.”
Seidel said that as Our Lady of the Sacred Heart has insufficient teachers and desks, the 600 students who turned up this year for classes quickly thinned out to approximately 200 after only four weeks, at which point the NT Government ran a funding audit of students.
The audit is used to average funding over the year, a self-perpetuating cycle that discourages more students from attending each year, resulting in a further drop of funding for the following year, Seidel said.
There may also be grounds for a complaint under the Disability Discrimination Act 1992, for according to Seidel “there are at least 10 students who are profoundly disabled. There is one student in particular who was born with no arms, and she is profoundly deaf”.
“The school receives little, if any, funding services for her and the other profoundly disabled students, [which] is a clear contravention of the Disability Discrimination Act.”
A spokesperson for the office of Paul Henderson, NT Minister for Employment, Education and Training, said no claim had been lodged to the HREOC in regard to the Wadeye community at the time Lawyers Weekly went to print. Lawyers Weekly has been advised by ABL that a claim was in fact lodged on 20 April 2007.