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THE BIG READ: Class Action
Issue 128 - 03 May 2007
Issue 128, May 3, 2007: A fortnight ago, the remote Aboriginal community of Wadeye lodged a landmark case in the Human Rights and Equal Opportunity Commission alleging that for 30 years, the Northern Territory and federal governments have deliberately discriminated against the community by grossly underfunding their local school.
The case - which is being run on behalf of Wadeye by some of the best legal minds in the country - could have profound implications on how governments deal with Indigenous communities not just in the Territory, but all over the country.
CHRIS GRAHAM takes an in-depth look at the community of Wadeye, the discrimination case itself, and the NT government funding formula that has been used to deny Aboriginal children in remote communities access to an education.
For a tiny little town 400km south-west of Darwin, Wadeye has a very big reputation. Few Australians haven't heard of the community, although it wasn't always that way.
Wadeye town proper has a population of between 2,000 and 2,500 people. It services a regional population which fluctuates between 3,500 to 4,500 people.
The population depends on the time of year - when the wet season hits, some of the residents migrate to Darwin, or anywhere west of the Daly River.
There's a simple reason for that.
Wadeye has no road access for at least five months of the year.
The only road into Wadeye - aptly named the Wadeye Road - is impassable at numerous points along its route, as rain pours from the wetlands that surround the region and out into the Arafura Sea.
Wadeye's isolation from the rest of the nation comes despite the fact the community is home to the sixth largest population in the Northern Territory, beaten in size only by Tennant Creek, Nhulunbuy, Katherine, Alice Springs and Darwin.
So how could the sixth largest community in the Northern Territory possibly have road access for half the year?
The answer to that is pretty simple too.
Wadeye has been largely ignored by the Northern Territory and federal governments, left to fend for itself for the better part of four decades.
Despite being home to 20 clan groups with seven distinct Indigenous languages, the town of Wadeye, until fairly recently, had no full-time doctor.
Unemployment in the community is above 90 percent, and if it weren't for CDEP, the real figure would be just a few points short of 100 percent.
The level of overcrowding in housing in Wadeye almost beggars belief.
Around 17 people share a single dwelling, but that's just the average.
There are two bedroom 'homes' - and the term is being used loosely - which support more than 30 people.
The average life expectancy of a Wadeye male is 47 years - 30 years less than the national average for a white Australian male.
Then there's the school. Or rather, lack thereof.
Wadeye has no high school, despite being home to several hundred children of high school age.
The only school in Wadeye is Our Lady of the Sacred Heart (OLSH Wadeye), a primary school which was built to house less than 400 students.
As the name implies, the school is administered by the Catholic education system. It answers to the Catholic Education Office (CEO) in Darwin, but unlike the thousands of other schools that come under the purview of the CEO, it is not a Catholic school.
It's not a government school either. It's not even a non-government school.
OLSH Wadeye is a 'mission school', one of only five in the country, all of them based in the Northern Territory.
Its mission school status came about through an agreement signed in 1979 between the Commonwealth government and the Northern Territory.
Up to that point, OLSH Wadeye had been dealing direct with the Commonwealth, but with the NT gaining self-rule in 1978, the Commonwealth agreed to hand over control of OLSH Wadeye, plus two schools on the Tiwi Islands, and one each at Daly River and Santa Teresa.
But the agreement came with a rider.
"The Northern Territory Government will, from 1 July 1979, accept total responsibility for the support of Mission schools," the agreement read.
"The Commonwealth would expect this to be at no less a level than that previously provided by the Commonwealth which has been on the same basis as for government schools."
In other words, control of the five mission schools was being handed over to the Territory on the condition that it continue to provide funding at the same level as all other government schools.
The ramifications of that agreement are still being felt in Wadeye today.
What it did was condemn at least two generations of Wadeye children to an education system that no other community in Australia would tolerate, or be forced to tolerate.
The missions schools agreement primarily did two things - it prevented missions schools from ever accessing mainstream federal government funding, money that every other school in the country, without exception, is entitled to.
It also left five remote Aboriginal schools under the sole purview of the Northern Territory government which, for its first 23 years, was run by the overtly racist Country Liberal Party.
Education, at least in Wadeye, all but ground to a halt with Commonwealth officials no longer holding (or taking) any interest in the school.
It wasn't even counted in federal government school census data.
But now the residents of Wadeye are fighting back. And that probably comes as no surprise to mainstream Australia, because that's mostly what Wadeye is known for - fighting.
It wasn't really until very late in 2005 that Wadeye really became known to anyone outside Indigenous affairs, or the Northern Territory.
And it was all thanks to a riot.
In early December, up to 400 local residents went on a rampage, destroying homes and government buildings in a series of clashes that ran on and off for several weeks.
Local police were unable to restore order, no doubt due in part to the fact that Wadeye only had four full-time police officers (compared to 26 stationed at Tennant Creek, which has a similar population).
The local council - Thamarrurr - had been warning the federal and territory governments for months that tensions in Wadeye were building.
In October 2005, it had even submitted a law and order strategy along with a request for
urgent funding to the federal Attorney Generals (AGs) department.
Commensurate with how all other government departments - state and territory - had treated Wadeye, AGS promptly ignored it.
Then the riots came.
The story made world news headlines after the army was brought in to help evacuate hundreds of local residents.
Suddenly, the Territory and federal governments took notice.
But Wadeye was already well-known to bureaucrats and politicians prior to the riot.
In 2002, Wadeye was named as the first Council of Australian Governments (COAG) trial site, a 'radical' new program which aimed to slash government red tape and re-invent the way bureaucracies engage with Aboriginal communities.
Former Indigenous affairs ministers Philip Ruddock and Amanda Vanstone both repeatedly pointed to Wadeye in the media as an example of a model Aboriginal community that was doing things to help itself.
COAG, they said, had proved that if Aboriginal people worked hard, then governments would work with them.
As is now well known, the COAG trial proved to be an unmitigated disaster, particularly for the people of Wadeye.
Red tape actually doubled under the course of the trial, and almost none of the objectives were met (including goals set for new housing - just four homes were built in the course of the trial, while 14 had become uninhabitable).
But there was, at least, one very positive aspect to the COAG trial.
It resulted in the then Department of Family and Community Services agreeing to fund a study of the community, to establish what was there, and what needed to be done.
That report was delivered in April 2005. It was officially called 'The Opportunity Costs of the Status Quo in the Thamarrurr Region', but became known as the Taylor report, after one of its authors, Dr John Taylor (a researcher with the Centre for Aboriginal Economic Policy Research [CAEPR] at the Australian National University in Canberra).
In Aboriginal affairs, the Taylor report is famous.
In government circles, however, it's infamous. It was a devastating document.
What Dr Taylor and co-author Owen Stanley revealed - in addition to the housing statistics mentioned above - was that the Northern Territory and federal governments were underspending in key 'positive' areas like health, while over-spending in 'negative' areas like welfare and law enforcement.
In essence, the Taylor report showed that government spending in Wadeye was totally arse-about - it was a road map for how to destroy a community without really even trying.
But the most explosive revelation came in relation to education.
The Taylor report revealed that for every dollar spent on the education of a child anywhere in the Northern Territory, the NT government spent just 26 cents on a child in Wadeye.
That figure was later revised upwards after the NT government 'discovered' some extra money it had earlier over-looked.
Suspect though that discovery was, Dr Taylor agreed to rework the figures.
The final result came in at 47 cents. Not something to crow about either.
The NT government went quiet, but down south in Canberra, bureaucrats went looking for answers.
What they discovered was that OLSH Wadeye was still classified as a mission school.
No-one could work out how, or why.
Documents obtained by NIT reveal the level of confusion among government officials.
An email exchange between two senior bureaucrats trying to establish the funding position of OLSH Wadeye notes the mission school agreement, and then reads: "This means that for the purposes of GRG funding [general mainstream education funding], the students attending the mission schools are not included in the non-government schools census... the students are also not included in the government schools census collection and GRG funding is therefore not provided to the NT for them... I was wrong, we don't fund them at all."
The underlining is that of the bureaucrat. Her emphasis is obviously based on her alarm at the discovery - there's only five mainstream schools in the Commonwealth that can't apply directly for federal government funding... the five mission schools. As far as the federal government funding is concerned, the students at OLSH Wadeye (plus the other four mission schools) didn't even exist.
Which is very problematic. Because both the NT and federal governments certainly knew about Wadeye's burgeoning social problems over many years. It was, after all the reason why Wadeye was selected as a COAG trial site in the first place.
To his credit, as soon as Prime Minister John Howard found out about the mission schools agreement, he wrote to NT Chief Minister Clare Martin and suggested it be ended... immediately.
In reality, Howard had no real choice - the Taylor report was made public just three weeks before he was scheduled to visit Wadeye, his third trip to an Aboriginal community in his then eight-year reign as Prime Minister.
Howard was about to walk right into the middle of a big political storm and something had to be done.
But the more the bureaucrats dug, the worse it got.
It soon emerged that not only had OLSH Wadeye not been properly funded for 30 years, but of the education funding that was provided from the Commonwealth to the NT government for the direct benefit of OLSH Wadeye students, much of it appears to have gone astray.
What the Taylor report exposed was a system of education funding constructed by the NT government bureaucracy that appears to have been specifically created to skim off money ear-marked for Aboriginal schools.
And not just in Wadeye - the practice was going on all over the Territory.
It is a scam of staggering proportions. If you, the reader, tried to pull the same stunt against the Tax Office or Centrelink, you would earn yourself a prison term.
But the NT government has got away with it for decades.
In fact, believe it or not, it's still doing it today, two years after the practice was exposed.
And here's how they do it. Every year, the Northern Territory government sticks out its hand for education funding from the federal government.
In the case of the Indigenous Education Strategic Initiatives Program (IESIP) - which is the largest federal government bucket of money specifically targeting Indigenous educational outcomes - funding is provided to the states and territories on a per capita basis.
NIT has obtained a copy of a letter written by Acting Secretary of DEST, Jim Davidson, dated January 2007.
Mr Davidson is responding to a request from OLSH Wadeye co-principal Tobias Nganbe for details about how much money the federal government gave the Northern Territory Department of Education, Employment and Training (NTDEET) which was ear-marked for OLSH Wadeye.
"In 2006, [NTDEET] received $326,298.49, the entitlement for an enrolment of 412 students in 2006.
"The subsequent payment of these funds to the Northern Territory Catholic Education Office (NTCEO) is a matter for discussion with NTDEET."
NIT was unable to establish how much of that IESIP funding was passed on by NTDEET, but government sources have revealed it was nothing like the amount provided by the Commonwealth.
NIT was, however, able to obtain NT government documents from 2003, which reveal a disturbing scenario.
A briefing paper prepared for former NT education Minister Syd Stirling reveals that IESIP funds passed on to OLSH Wadeye in 2003 totalled just $46,169.
The population at Wadeye has only grown slightly since 2003, and IESIP funding as a percentage hasn't increased substantially.
The gap between IESIP funding that is known to have been passed on by NTDEET in 2003, and the IESEP funding known to have been provided by the Commonwealth in 2006, is massive.
The NT government appears to also be receiving general Commonwealth funding for students on a per capita basis. But it passes on money to schools based on an "attendance formula".
Fiddle or otherwise, the NT government's system almost defies comprehension.
At the start of every school year, the NT government provides OLSH Wadeye with funding for a set amount of students, based on student numbers from the previous year.
In 2003, 420 children enrolled at OLSH Wadeye in the first week of the school year.
In 2004, the number grew to 467.
But in 2005, it exploded to 582 - a 25 percent increase - after a strong push by Wadeye residents to ensure that as many children as possible attended school.
Last year, the figure climbed to 628 and this year, the school year again began with over 600 students.
But the number of children enrolling in the school has little bearing on the amount of funding provided to the school by the NT government.
In 2003, the NT government funded around 180 places at OLSH Wadeye, despite the enrolment of 420.
In 2004, it funded just over 200 places at OLSH Wadeye, despite a first week enrolment of 467.
In 2005 - despite the 25 percent increase in student numbers to 582 - the NT government funded less than 220 places.
In 2006, with more than 600 students, the NT government again refused to fund more than 220 places.
And it's done precisely the same thing in 2007. Despite around 600 children enrolling in the school, the NT government will only provide funding for 220 students.
How can they possibly get away with it? Read on... it is a remarkable system from a 'responsible' government.
In the fourth and eighth week of every school term, NTDEET does an audit of school numbers.
It continues the process throughout the year, until it arrives at an average number of attendees for the year.
It then calculates funding for the next school year based on enrolments, versus attendance.
"The level of funding is based on a set rate which is paid based on enrolment and attendance numbers...," Stirling's briefing reveals.
"An enrolment and attendance test is used to calculate the level of funding.
"Where schools do not achieve 90 percent attendance, adjustments to the payment calculation are made on a proportional basis with 10 percent added back in to the payment to recognise that this is the benchmark for absenteeism."
The briefing provides Stirling an example, dating back to funding for 2003 (which was calculated in 2002).
For the second semester of 2002, 251 students were enrolled at OLSH Wadeye.
But of those, only 117 kids turned up to school regularly - in other words, 47 percent of them.
Because attendance was less than 90 percent, the NT government added 10 percent (the absenteeism benchmark), and then provided funding for 57 percent of the enrolment, or 143 students.
But why, you might ask, are there so few students left at OLSH Wadeye in the second Semester of 2003, when more than 400 enrolled at the start of the year?
Surely it's the fault of Wadeye parents for not getting their kids to school?
Here's the rub.
In 2007, around 600 students enrolled at Wadeye. But the school is built to house just over 300.
On any given day, half the enrolled students don't have access to a classroom.
But it gets worse.
For 2007, the NT government has only funded places for 220 students, which is the 'average attendance' from 2006.
So again, on any given day, not only does half the school population not have access to a classroom, but about 60 percent of them don't have access to a teacher.
That's been the case since at least 1991, when the system of funding was introduced.
So inevitably, the numbers of students attending school drops off throughout the year because there's not really any school to attend.
Wadeye is trapped in a ridiculous cycle of government stupidity and neglect. A cycle, mind you, that would never be tolerated in any white suburb anywhere in the nation.
In order for OLSH Wadeye to receive full funding for all local kids in 2008, it will have to ensure that all 600 students who enrolled at the start of this year stay in school for the entire year, even though more than half of them won't be getting an education.
The irony is that it was the federal and NT governments who told Wadeye parents they had to get their kids to school - Wadeye has a new community pool, and voluntarily adopted the federal government's 'No pool, no school' policy.
The community has obviously since abandoned the strategy, with more than a few local kids adopting their own 'shared responsibility' approach - 'No school, so I may as well go to the pool'.
Wadeye parents, for their part, are left to ponder how they can possibly secure adequate funding for their school through a system that has been created to prevent it.
But the million dollar question - or in this case the $80 million question - is this: Is the NT government receiving federal government funding for OLSH Wadeye based on enrolments, or based on 'attendance'?
It's at that point that things get a little murky.
A fortnight ago, the Wadeye community launched a class action in the Human Rights and Equal Opportunity Commission alleging that for three decades, the NT and federal governments have deliberately underfunded their education.
The claim literally spans generations.
All residents of the Wadeye region since 1979 who were of school age are included in the class action.
The number is estimated to be as high as 2,000.
The complaint was lodged by Arnold Bloch Leibler (ABL) - one of the nation's most prestigious law firms. It is backed by research from the Castan Centre for Human Rights Law, one of the nation's most respected rights watchdogs.
You've probably already realised, this is no ordinary legal team.
The legal action is historic, and nothing of its kind has ever been run in Australia.
It was announced by Peter Seidel, head of ABL's public interest law practice, via a statement to the media on April 20.
"Arnold Bloch Leibler today lodged an unprecedented complaint with the Human Rights and Equal Opportunity Commission, on behalf of the community of Wadeye, seeking an official apology and compensation for the prolonged underfunding of its children's education," Seidel announced.
That compensation could run as high as $80 million.
"The first concerns the vast under-funding of a collection of NT schools, including Our Lady of the Sacred Heart at Wadeye, caused by [the mission schools agreement] struck between the Commonwealth and NT Government in 1979 that has not been updated since.
"The second aspect is the failure of the NT Government to pass on Commonwealth funds meant for the school because of a complicated funding formula that gauges attendance."
And there it is - the answer to the $80 million question. Are NT government officials pinching education funds allocated to Wadeye and spending them elsewhere?
Arnold Bloch Leibler believes they are, and further documents obtained by NIT reveal a Canberra bureaucracy that also harbours suspicions about the conduct of its colleagues up north.
An August 2005 briefing from a senior DEST official to then federal Minister for Education, Science and Training, Brendan Nelson alludes to those concerns.
Arguing to remove the mission schools from NT control, the official writes: "The key benefit of this change for those communities will make transparent the funding arrangements for these schools.
"There is evidence that these schools have not been receiving the full base funding that currently goes into those schools under the 1979 Agreement."
It has long been alleged by Canberra - under both Labor and Liberal - that state governments consistently pocket money ear-marked to alleviate Aboriginal disadvantage, and divert it elsewhere.
The Northern Territory, more than any other jurisdiction, has been accused of the practice.
Look no further than Wadeye for the end result of it.
Arnold Bloch Leibler are also taking the governments on over under-funding for disabled students at OLSH Wadeye.
"The third element concerns the under-funding of 12 profoundly disabled children at the school, each of whom receives little or no additional funding of the kind others get in similar circumstances at mainstream schools."
It makes the issue all the more stomach-churning. And so does the fact the neglect was deliberate.
Clare Martin's government has known about this problem since it was elected in 2001, after seizing power from the Liberals.
But not only has it done nothing to resolve the issue, the ALP government actually slashed funding to the mission schools by about one-eighth immediately upon taking office.
Wadeye has made numerous representations to the NT government since 2005 about the problem, first to Syd Stirling and more recently to current Minister for Education, Paul Henderson.
Despite the well-known social problems in Wadeye; despite the efforts of parents to get their kids to a school; and despite the increasingly desperate pleas from community members, Stirling and Henderson have refused to budge.
The Howard government has known about it too, since at least 2005 when the Taylor report was published.
"Education is the key to everybody's future and I couldn't be more overjoyed at the news that kids are coming back to school and that is terrific in so many ways."
That was an ebullient John Howard at a press conference at OLSH Wadeye a few weeks after the Taylor report emerged.
Howard was upbeat in his praise of Wadeye residents and their efforts, no doubt because the press conference was at the very school his government had been ignoring for three decades.
The Wadeye residents reciprocated, greeting Howard at the local airstrip as though he were a long-lost elder.
Although Howard personally intervened in the mission schools debacle as soon as he became aware of it, two years down the track, the gross under-funding of OLSH Wadeye continues.
Hundreds of children in Wadeye have missed another two years of schooling while the wheels of the bureaucracy turn.
By way of political compensation, both governments agreed to build a high school in Wadeye, and construction is almost complete.
But with comparatively few local kids finishing primary school, it seems a case of 'too little, too late'.
As you read this article, around 400 students will be attending OLSH Wadeye, which has funding for just half that number.
Thankfully, the mission schools agreement looks likely to be abandoned in July this year. Overnight, OLSH Wadeye's annual budget will be about $3 million healthier.
Of course, the federal government can't just flood OLSH Wadeye with funding and expect the local education system to flourish.
For a start, the school needs major upgrades and its capacity needs to be expanded substantially.
That will take time.
And of course, it's not like the extra teachers can just up and move to Wadeye.
With the average number of people living in a single dwelling in Wadeye still at around 17, there's nowhere for a teaching workforce to live.
They have to build more houses first, but that's another story.
For now, the community of Wadeye remains angry at its abandonment by government, but surprisingly optimistic about its future.
Co-principal Tobias Nganbe said the community would not back down from its fight.
"The community has been very clear in their instructions and I want the best of the best for these children," he says.
"I want them to grow up to be doctors, lawyers, engineers, pilots.
"We also want compensation... for the two generations of children who have missed out on an education."
And it's that prospect of a massive wrong finally being righted that has buoyed community spirits.
If the community wins it case, it is not seeking individual payouts to residents who missed out on an education, though each would be entitled.
Instead, Nganbe says the community plans to demand compensation in the form of "vocational and remedial education services" to provide job training for two generations of Wadeye residents who never really had a chance to go to school.
The great tragedy, of course, is that their best hope of achieving that is by suing two governments through a class action.
o Wadeye's case is expected to be heard at Wadeye by HREOC within a few months. If Wadeye wins, the matter may be conciliated or it may proceed to the federal court for a ruling. Either way, we'll bring you the results as they happen, both via our website - www.nit.com.au and through the pages of NIT.
SEE ALSO...
o A punter's guide to getting a red budget in the black
o Editorial comment: The Wadeye fight is one for us all.
o NIT FORUMS: Learning a way out of poverty, by Lester-Irabinna Rigney
 
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