Aboriginal communities sue Federal Government over 'racially discriminatory' work-for-the-dole scheme

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Nine remote Aboriginal communities in Western Australia are suing the Federal Government in a landmark action over its controversial remote work-for-the-dole scheme which they argue is racially discriminatory.

Key points: The legal action in court follows two years of failed mediation between the two parties

The complainants argue the CDP, or work-for-the-dole, is racially discriminatory and unlawful

CDP has faced criticism from participants, advocates, Labor and the Greens

The remote work-for-the-dole scheme is formally known as the Community Development Program, or CDP.

The dispute has reached the Federal Court after two years of mediation, overseen by retired judge Robert French, which failed to resolve the matter.

The former High Court chief justice was appointed as external mediator after the Aboriginal communities lodged a formal complaint with the Australian Human Rights Commission in late 2016.

In a letter sent to Race Discrimination Commissioner Chin Tan in April, Mr French said he had formally ended mediation after two years of fruitless correspondence.

"Regretfully it has not been possible for the parties to reach agreement," the letter read.

The nine communities argue the scheme breaches sections 9, 10 and 13 of the Racial Discrimination Act.

It marks the first time the CDP has been challenged in court on such grounds.

Each of the communities lies within the Shire of Ngaanyatjarraku, a vast and sparsely-populated area near the borders of the Northern Territory and South Australia.

With a median weekly income of $307, it is one of Australia's most disadvantaged local government areas.

The communities argue it unfairly applies more onerous requirements of participants — 85 per cent of whom are Indigenous — compared to the mainstream Jobactive program, for the same welfare payments.

Confidence in legal case

Led by shire president Damian McLean, the communities have engaged Adelaide firm Johnston Withers Lawyers to mount their case against the Commonwealth.

"We've been working with our lawyers for the last couple of years," he said.

"We are confident that there is a basis for saying that the Australian Government has broken the law in running this program — the CDP."

Mr McLean said he hoped that should their case be successful, the Government will pay back money it has collected in penalties, as well as restitution to participants.

"This should completely finish the argument once and for all as to whether or not Aboriginal people need to have a voice to Government in relation to policy and program that affects them."

Interactive map: which regions are being issued with the most work-for-the-dole fines?

Minister for Indigenous Australians Ken Wyatt said now that mediation had failed, he was planning to visit the Ngaanyatjarra Lands to speak to locals affected by the CDP.

"I intend to go out to the Lands, and one of my colleagues has asked if he can join me, [Minister for Government Services] Stuart Robert," he told the ABC in June.

"I haven't been to the Lands for some time, and I've already had two community groups talk to me in Perth imploring me to come out and see them."

Ongoing criticism of scheme

The CDP, administered by the newly created National Indigenous Australians Agency, has faced bitter criticism from participants and Aboriginal advocates since it was created in 2015.

Under the program, participants living in remote communities must complete work-like tasks in order to receive Newstart payments owed to them.

Missing an appointment with a work provider can result in payments being suspended, or penalties of roughly $50 issued per day, which has been blamed for worsening poverty among participants.

"I would like to see things change. We need some changes [with this scheme]," said Ronald Hunt, a CDP participant in Warburton community.

Local community leader Derek Harris said the CDP scheme reminded him of the way his great-grandparents were treated in the 1920s.

"Working for the dole now, that's taken away our dignity. It's taken away who we are. Nobody wants to work for the dole," he said.

Data obtained by the ABC last year showed places with higher numbers of Indigenous participants in the $275 million-a-year program were issued with more penalties.

Since the rollout of the scheme to June last year, almost 560,000 penalties have been handed out in remote areas to participants, at least four in five of whom are Indigenous.

Those required to take part in the CDP make up a little over four per cent of work-for-the-dole participants nationwide, but represent more than half of the total penalties, according to ANU research.

A spokesperson for the National Indigenous Australians Agency said the Government had recently made improvements to the CDP this year in response to feedback.

"Early feedback on the changes suggests they are improving participants' experience of the program," the spokesperson said.

The agency claimed it could not comment on the dispute, citing confidentiality reasons, but insisted the scheme complied with the Racial Discrimination Act.

Topics: aboriginal, welfare, work, kalgoorlie-6430