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Qld offer adds insult to injury

by Helen Burrows

5 March 2003 - The offer of independent legal advice for the remaining Indigenous Queenslanders victimised by the Queensland Protection Acts, is proving to be a double edged sword. Whilst moves by the Beattie Government to publicly address the theft of millions of dollars in wages and savings is to be applauded, there’s also a more sinister and covert side, muddled with ambiguity and inflamed mistrust. Helen Burrows, the head of a team formed to investigate the issue of lost and stolen wages nationally, comments.

In accepting the paltry offer of compensation, Indigenous Queenslanders are being deprived of recompense which is anywhere near realistic. Furthermore, acceptance comes at an even higher price with the payment of monies being wholly dependant upon claimants signing a blanket indemnity perpetually preventing them from initiating any further actions, suits, claims, costs and demands which might become apparent as against the State, relating to the “Controls”.

The “Controls” to which this indemnity applies are defined as the raft of protection legislation enacted between 1897 and 1984. They have the potential to prevent those detrimentally affected by State actions from ever raising their voices again, against anything done to control them in so many ways. Not only does this represent wholesale immorality, but delivers another fatal blow to the “spirit of reconciliation” so voraciously trumpeted by the Government.

Another blow comes in the form of the rush to settle the issue. Although campaigns have taken years to engage the Government it is now attempting to expedite resolution - quite unfairly. Despite the importance of the decision to be made, claimants have only 24 hours to consider the advice they have been given. Although the terms for delivering advice say that claimants are not to be rushed or pressured - this is clearly not the case.

The seeming magnanimity of the $55.4 million offered is further weakened by the inclusion of people who were controlled in ways other than the surreptitious dispossession of their wages and savings. This inclusion in the matrix of South Sea Islanders and Papuans for example highlights the breadth of the net being cast by the Government.

Although the compensatory offer is specifically related to controls of wages and savings, is the Government attempting to eradicate all potential questions being asked about any ill-treatment inflicted on anybody during the last century?

If the Government is minded to seriously engage the issue of controls in its entirety, they must do so overtly. This must be done by the expansion of the terms of references for the compensation on offer and, as a corollary, the amount offered.

If those affected by every conceivable control are to be compensated for their loss, this cannot be done covertly within the parameters of the current admission and its flagrantly insufficient dollar value.

A clause in the tender states that there is to be no conflict of interest.

At first blush it would seem that there is an immediate question of conflict in that it is seemingly impossible for legal advisers to provide independent advice whilst engaged and paid by the Government.

However, the reality is not quite as challenging. Although it would seem that engagement on these terms leads to an automatic denial of independent legal advice, the Code of Conduct of practitioners dictates otherwise. The fiduciary duty owed by the legal advisers rests with the claimant to whom they provide legal advice. It is not an unusual scenario for advice to be paid for by someone other than the individual in receipt of the advice. Despite this, and coupled with the significant criticism over the way the Government has managed the issue to date, another approach would have been far more sensible. Instead of enticing a situation where people will undoubtedly question the independence of the legal advisers associated with the Government, it would have been a far more prudent choice to have given the money allotted for these services to an autonomous body not associated with the Government - like Legal Aid. Not only would this do away with any suggestion of Government dependence or alignment, but also would have saved the Government the considerable costs associated with the tender process itself.

Instead, the Government is content to know that its actions will be perceived as presenting the opportunity for bias and partisan action on the part of those delivering the advice. I leave it to you, the reader, to decide whether this is likely to instill the confidence necessary for Indigenous Queenslanders to have any faith in the advice of the practitioners!

Only the practitioners Code of Conduct may comfort us, along with the integrity of the panel of practitioners engaged which would protect against a conflict of interest. However, there are numerous other obligations to which practitioners must subscribe which serve to undermine the independence of the process.

First, there is an over-arching clause demanding that the panel work “co-operatively” with the Government.

Nowhere in the tender document is cooperation explained and could mean anything from ensuring that the legal advice given receives prior Government approval, to passing on unlimited information about the substance of the process. Indeed, the panel of legal advisers is expected to submit reports “containing such information as may be required”.

Further, the Government is to be entitled to “inspect the performance” of the panel in relation to their adherence to obligations. Although the privacy of personal information is to be assured, the generality if the open access to practitioners’ work and the potentially unlimited questions to Government might ask, offer little assurance in the method as well as its substance.

Finally, and again in the spirit of reconciliation, the Government is offering an apology - although by this they are swift to reinforce that by it, they are not admitting liability. Of course - to do so would be an admission that they discriminated against, abused and persecuted thousands upon thousands of Indigenous Queenslanders over successive decades. Yet, this lack of an admission squarely contradicts the admission that the Government was responsible for the massive financial dispossession.

The Government would never offer compensation unless there were a sizeable likelihood that they would be found legally culpable for their actions in a court of law.

Thus, the fact that there is an offer on the table at all means they have a great deal to apologise for.

Despite this, the word sorry continues to choke ministerial throats. The best they can come up with is one, poorly drafted line nestled quietly between cold clauses in the deed of settlement.

Above all, the engagement of this issue by the Queensland Government is a huge step along the road to finding a solution.
However the commitment to satisfaction is inadequate and has turned a golden opportunity for redress into a farce.

The Indigenous population affected by the Protection Acts are in their autumnal years, many of whom are afraid that their money will otherwise be too long in coming.

People are not pawns and the errors of yesterday can never be concealed by vehement and disrespectful actions today.
Above all, the plight of Indigenous Queenslanders, indeed Indigenous people all over the country, require our urgent attention.

Each opportunity to make amends and to reconcile our differences which slips away, with it slips the faith of the Indigenous population in our commitment to do so. We must use our position as citizens wisely and ensure the Governments across the country are held accountable and make good on their loud proclamations of reconciliation whilst there is still time.

Source: National Indigenous Times

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