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Legal action 'only option' for stolen wages claimants

25 October 2006 - The Senate inquiry examining the underpayment of millions of dollars in wages and welfare payments to Indigenous people has heard that litigation is the only way forward for claimants.

The stolen wages inquiry is taking evidence in Brisbane today.

The academic credited with uncovering the issue in Queensland, Dr Ros Kidd, has told the inquiry a forensic audit should be conducted on all state and territory governments to reveal the full extent of the underpayments.

Dr Kidd has also described the Queensland Government's $55 million reparation package as "insulting" and says litigation is the only option for stolen wages claimants.

The inquiry moves to Sydney on Friday.

Source: ABC

Rough justice over stolen wages: The theft of Aboriginal pay is much worse than a breach of trust

By Stuart Rintoul

14 October 2006 - IN May 2002, a group of senior Aboriginal figures waited uneasily to see Queensland Premier Peter Beattie. The meeting was to discuss a $180million claim for wages and savings that were lost, or stolen, from Aboriginal workers during much of the 20th century.

These workers included children who were taken from reserves to work as servants and labourers, whose wages were managed by "protectors" and whose passbooks, after years of work, were often found to contain little or nothing. Profoundly corrupt at a time when no one cared, this management of Aboriginal wages lasted from 1897 until 1972.

According to Ruth Hegarty, one of those who attended the Beattie meeting, which she recalled to Ros Kidd for her book, Trustees on Trial: Recovering the Stolen Wages, Beattie arrived with a sheaf of yellow papers in his hand that he immediately tossed on the table, saying, "This is our offer, take it or leave it."

The offer was for $55.6million: a "full and final" payment of $4000 for surviving workers over the age of 50, $2000 for younger survivors and nothing for descendants. In order to receive the payment, individuals were required to relinquish any legal rights they might have under the various protection acts in place in Queensland between 1897 and 1984.

A week later, Beattie told the Queensland parliament the proposal was historic and aimed to ease the lasting pain caused by past government policies. He said many Aboriginal people had been treated worse than animals.

The Beattie deal generated feelings in the Aboriginal community ranging from anger and disgust to grudging acceptance. Some of those who had fought for years fortheir entitlements took the money to pay for funeralexpenses.

But, after four years, only half the 16,400 anticipated claimants have applied for payment. One-third of those who applied have been rejected because the Government has been unable to find substantiating documents. Only $20million of the $55.6million has been distributed. But the issue is far from over.

Several legal actions are now being prepared in Queensland and NSW; a NSW trust fund repayment scheme, which is more generous than Queensland's, has accepted claims over the past year totalling $400,000 in amounts of up to $25,000; and a Senate inquiry has begun hearing evidence in all states andterritories.

Somewhere near the centre of this legal and emotional vortex is Kidd, whose work over the past 15 years, culminating in Trustees on Trial, has not only exposed the extent to which Aboriginal people were deprived of their entitlements for the greater part of the 20th century, but lays the legal grounds for arguing that Australian governments were in breach of trust.

Over the past fortnight, Kidd has been talking to lawyers in Queensland, NSW and Victoria in the company of Elouise Cobell, who for the past 10 years has been locked in a $US176billion ($234billion) class action against the US Government on behalf of 500,000 Native Americans, over trust money that was similarly lost, looted or mismanaged.

Cobell, a member of the Blackfeet nation and a banker who has helped found banks to support Native American-owned enterprises, sees strong parallels between that case, in which a district court judge has ruled the US Government breached its trust responsibilities, and the Aboriginal stolen-wages issue.

Cobell has described the US case as "worse than Enron, because it's the Government that is lying, covering up and breaching its trust. They stole people's entire life savings. They robbed an entire race."

The Bush administration has stalled on a settlement in the case, with costs soaring above $US100million, and after presiding over the case for a decade, Judge Royce Lambeth was recently removed. But Cobell remains confident and determined to keep the US Government's feet to the fire. "We will stay in litigation until this is resolved," she says.

Having heard some of the stories of Aboriginal people who were denied wages throughout their lives, she says: "I don't see how any Australian, after listening to the stories, can feel good. It's emotionally draining."

In Townsville, Cobell spoke to Yvonne Butler, who told her how three generations of her family were denied wages owed to them, from her grandfather who worked as a "faithful slave", to her own employment as a child cook and governess.

Butler has four times rejected the Queensland Government's offer of $4000 compensation. "I'm not taking it," she tells Inquirer. "It's an insult. It was a slave labour system. We worked very long hours for next to nothing.

"I remember everything that happened: how humiliating it was as a child to go to the police station towatch your mum and dad being interrogated for theirown money." She remembers also suffering frommalnutrition.

Legal opinion by constitutional lawyer Maurice Byers has previously suggested all Queensland "protection" legislation was in breach of the imperial Slavery Abolition Act of 1833.

But the widespread corruption, misappropriation and mismanagement of the Aboriginal accounts - revealed in a report to the Goss Labor government 15 years ago and reinforced by Kidd's unprecedented access to Queensland government records - has raised new legal possibilities.

These records, she says, reveal the extraordinary extent of government controls over Aboriginal wages, savings, endowments and pensions and include many accounts of wages being mismanaged through negligence, forgery, trickery or collusion, and make a powerful case that governments breached their trustee responsibilities to protect the interests of people who were forbidden from seeing their financial records.

Kidd, who uncovered the extent of misappropriation in Queensland while researching her doctoral thesis in 1990, says the difference between the stolen generations debate and the stolen wages case is that "if we focus on the finances, there is no room for whether you meant well or whether it was the policy of the time; you either break trust law or you don't".

"Aboriginal people were entirely at the mercy of government," she writes. "That vulnerability, the undertaking by the government to act on their behalf, the reasonable belief that it would do so, all suggest an enforceable fiduciary obligation.

"The power of government and the machinery of its protection regime was truly extraordinary, both in scope and intensity. It controlled child-parent and marital relationships, the place and conditions of living, the type of labour and earnings from it and the availability and security of private savings."

Comparing the unlimited authority governments exercised over indigenous Australians and Native Americans, Kidd writes: "Like congressional power in the early 20th century over Native American interests, the power that Queensland governments wielded over Aboriginal lives and finances was certainly as 'manifestly awesome, perhaps unlimited'."

Two states - Queensland and NSW - have attempted to come to terms with the stolen-wages issue over the past four years. The contrast could hardly be more pronounced.

In NSW, the scheme is uncapped; entitlements are indexed for today's dollars, with compound interest; the scheme takes responsibility for searching archival records; disputed claims are heard by an indigenous panel, chaired by former senator Aden Ridgeway, which is able to take account of oral evidence; the scheme allows for claims by groups of descendants, which the Queensland deal does not; and there are funds for counselling claimants who find the process traumatic.

Many claimants, according to Marilyn Hoey, director of the NSW Aboriginal Trust Fund Repayment Scheme, are shocked to discover how closely their lives were monitored by the Aborigines Protection Board and the Aboriginal Welfare Board.

Another key difference is that NSW has not required indemnity against further claims, or legal action.

Robin Banks, chief executive of the NSW Public Interest Advocacy Centre, says the NSW scheme is "much more respectful" than Queensland's, although claims in NSW, as in Queensland, will fail if documentary evidence cannot be found.

This, she says, is a refusal to acknowledge "that it was a responsibility of the government to maintain the records, not of the individuals, who had no hope of maintaining the records because they had no access tothem."

In the fading pages of the Queensland records, the story is told time and again of the breach of trust inflicted upon Aboriginal people.

In 1927, when workers at Wrotham Park station refused to sign their contracts until outstanding wages of pound stg. 200 were paid, the protector threatened them, plied them with alcohol and locked them in a poisons shed overnight until they capitulated. In the early 1940s, the protector in Coen described a system in which Aboriginal people authorised wage arrangements with thumbprints as "just a farce".

At Camooweal in 1956, the year of the Melbourne Olympics, the protector said the system was "absolutely beyond control".

At Birdsville, the protector said he had never seen a pocket-money book. At Cooktown, the protector said the system was "futile" since most workers were illiterate and had no way of knowing what they were "signing" for. At Urandangie, the protector said the books were "useless".

In his preface to Kidd's book, lawyer Geoffrey Robertson observes: "At a time when organisations representing indigenous people are routinely accused by governments of mismanaging their funds, it is appropriate to consider how those funds were managed when they were entrusted to governments."

Source: The Australian

Trustees on Trial: recovering the stolen wages

13 September 2006 - Human Rights and Equal Opportunity Commission President John von Doussa QC will launch Dr Rosalind Kidd’s new book ‘Trustees on Trial: recovering the stolen wages’ in Brisbane on 14 September.

Trustees on Trial uses official records to reveal the government’s control over Aboriginal wages, savings, endowments and pensions in Queensland from the 1890s to 1980s. It also analyses the fiduciary obligations of Government to Indigenous people which have been developed in Canada and the United State.

Dr Kidd has been working on the subject of stolen wages for more than 15 years. She is an adjunct Research Fellow at Griffith University and a passionate advocate for justice for Aboriginal people.

The Human Rights and Equal Opportunity Commission made a submission to the Senate Legal and Constitutional References Committee Inquiry into Stolen Wages in August this year. See the submission at: www.humanrights.gov.au/legal/submissions/stolen_wages_2006.html

Mr von Doussa said: "Many issues involving the underpayment, withholding and misappropriation of wages earned by Aboriginal and Torres Strait Islander people remain unresolved".

"The failure to fairly compensate Indigenous people who were discriminated against in employment on the basis of their race remains a significant human rights issue in Australia and a matter of great concern to the Commission."

Source: HREOC

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