Dr Ros Kidd Historian - Consultant - Writer
The Price of Justice
Introduction
There is a very interesting internal minute on the files of the division
of Aboriginal and Islander Affairs in Queensland. Dated December 1985,
the minute details a meeting between Bob Katter junior, minister for
Community Services and Aboriginal and Islander Affairs, and
representatives of the Queensland Nurses Union. The QNU delegates had
informed Katter that if all Aboriginal nursing staff working in
community hospitals were not paid at the legal rate then action would
commence in the industrial courts. Katter was handed a briefing memo
which had been compiled by his undersecretary, Patrick Killoran. The
internal minute relates that Katter read the memo, screwed it up in rage
and disgust, and threw it in the bin, assuring the delegates he would
approach cabinet to have all Aboriginal health care workers paid award
wages.
This little vignette provides a useful introduction to a brief look at
several inter-related issues: the matter of the government’s
underpayment of its Aboriginal employees; the significance of union
clout; and the disaffection between new minister Bob Katter and his
senior bureaucrat of twenty years’ standing, Patrick Killoran. In 1986
the QNU was but one of about ten unions preparing action against the
government on behalf of Aboriginal members. And ten years later the
matter of underpaid Aboriginal employees is still subject to legal
action. This article is intended to provide some background information
to this long battle for justice.
The Queensland government does not deny it continually underpaid its
Aboriginal employees. Quite the opposite. The government maintains a
clutch of justifications for this discrimination: that subsidised
housing, electricity and store prices made up the cash differential;
that all Aboriginal workers were merely trainees; that lower payments
were a means to maximise jobs and thus enhance Aboriginal interests; and
that the government had a lawful right to set a lower wage.
All these justifications were advanced at the recent inquiry on Palm
Island, where the government was forced to defend itself in an action
brought before the Human Rights and Equal Opportunities Commission by
seven elderly workers. There was one major problem, however. Evidence
which crown law sought desperately (but failed) to exclude revealed that
these justifications, like the emperor’s new clothes, lacked substance
when exposed to the public gaze.
When we look at Aboriginal communities in Queensland today we are seeing
the outcome of a century of the tightest administration any government
has imposed on any sector of the population. These communities of
substandard housing, defective amenities, social dysfunction, and
overcrowded and impoverished families, are a creation of government.
Until less than ten years ago, the Aboriginal constituents had barely a
token input into practical infrastructure and social controls. To a
large extent, I shall argue, the present pathological conditions are the
visible evidence of the price exacted by the government in its
cold-blooded refusal to pay legal wages to community workers. The
recently empowered Aboriginal councils have a mammoth battle to rebuild
their communities into viable social entities.
Working for a pittance
Prior to 1968 there was no institutionalised wage system for those whose
labour constructed and maintained Aboriginal missions and settlements.
But there has been, since 1945, a requirement that all able-bodied
inmates must work at least thirty-two hours every week. This was
enforced through jailings and deportations, and belies the convenient
rhetoric of government generosity and Aboriginal handouts. And private
pensions - child endowment from the early 1940s, and old age, widows,
and invalid pensions from the 1960s - were deflected directly into
departmental accounts. Only a small portion found its way into the hands
of those whose social status had qualified them as in specific need of
financial assistance.
When the Aboriginal department finally introduced a cash system on its
reserves in 1968, payrates were set well below the basic wage deemed
essential for survival for all other Australian families. The pitiful
level was set despite knowledge relayed to director of Aboriginal and
Islander Affairs, Patrick Killoran, that many reserve workers should be
paid at the award rate because of the standard and category of their
work. Evidence reveals that Killoran was informed that many workers
were paid award wages for their work, except when they
laboured on their home communities.
In
fact, since 1945, a regulation decreed that all Aboriginal workers must
be paid award wages where such categories were appropriate. There were
only two exceptions to this: the pastoralists, and the government! Both
of these employees profited greatly from their cheap labour force. It
has been argued that the pastoral industry would not have survived
without a labour pool held practically captive through compulsory work
agreements and pre-set depreciated rates. Certainly Queensland
governments over the decades have shown no intention of paying proper
wages. In 1966, when the carpenter’s award stood at $48, Cherbourg
builders were paid only $10 for the same work on the reserve.
Apprentices, for whom no structured teaching or training was provided,
were paid $3 at a time when the award rate was $21.
With the introduction of cash economies in 1968, funding allocations
were so deficient that community managers were ordered to sack half
their workforces to remain within budget. Massive retrenchments and
pitiful wages brought appalling hardships, hardships carefully edited
from annual reports by head office personnel. In 1969 when the dole was
$23.25, files reveal a sawmiller with nine children was paid only $16,
and a truckdriver with eight children struggled on $18.50.
Disgusted with government claims that the low rates reflected the
trainee-status of Aboriginal workers, Queensland’s Trades and Labour
Council berated the minister: "It seems to us that a large percentage of
such so called training is in reality employment of Aborigines to carry
out essential work for your Department at rates and conditions well
below those prescribed in the Award". Succinctly, the TLC concluded that
the wages policy was "virtually robbery". By 1972 the average wage on
Palm Island was $23.80, but the basic wage had risen to $41.65. Families
were condemned to cram fifteen and eighteen to a hut because they could
not afford the $5 rent for the new commonwealth-funded homes.
Political Strategies
Nervous of union clout in the industrial courts, the government utilised
provisions under new legislation in 1971 to justify its discriminatory
wages policy. Without public or parliamentary debate, s.68 of
regulations gazetted in 1972 simply excepted all community workers from
the requirement that equal wages be paid. Subsequently, whenever it was
challenged on the underpayment of its Aboriginal employees, the
government merely pointed to this regulation as proof they were acting
within the law. Amazingly, crown lawyers at the Palm Island inquiry
deployed the same tautological defence!
Documents on departmental files, part of the contested evidence produced
to the HREOC inquiry, reveal the hypocrisy of this affirmation. Because
when s.68 was first tested in the industrial courts in 1978 in an action
by Yarrabah labourer and AWU member Arnold Murgha, the president of the
Industrial Court stated this regulation did not exempt the Aboriginal
department from his jurisdiction, because it did not clearly state an
intent to abridge the liberty of the subject. Asked for his opinion, the
crown solicitor concurred: Aboriginal wages were subject to the
State’s industrial laws and the claim would likely succeed. Crown law
advice was: settle without delay and with as little publicity as
possible. Amid bitter - but confidential - recriminations, cabinet did
settle.
Perversely, although the Murgha case was fought (and lost) within the
ambit of the State’s Industrial Conciliation and Arbitration
legislation, cabinet decided to blame the federal government for the
costs of bringing Aboriginal pay up to the legal award level. Following
crown law advice that the government was also vulnerable to civil action
under the 1975 Racial Discrimination Act, and paranoid about the
advocacy of federal legal aid officers, premier Joh Bjelke-Petersen
demanded the Fraser government foot the bill for the regularising of
Aboriginal reserve wages. Rates were given of $3.6million [$10.5million
in today’s terms] to achieve parity with the State’s guaranteed minimum
wage, or an immense $6.85million [$19.5million today] to reach award
levels. If the commonwealth did not fund the deficit, wrote
Bjelke-Petersen, he would have to reduce services, raise rents and
charges, or sack 850 workers causing, he warned, "massive social
problems" from unemployment and "other factors".
Fraser was unmoved. He pointed out that payment of state employees under
state industrial awards was a state responsibility. Mindful of the
looming federal election, minister Charles Porter told Joh
Bjelke-Petersen that he would call a press conference to inform all
reserve workers who was responsible for causing the "massive
unemployment and inevitable social trauma growing out of it". And in
June 1979, the Queensland government decided it would not put one cent
of consolidated revenue to the implementation of award wages for its
Aboriginal employees.
A
process of attrition
Each grudging wage increase has been paid for by the Aboriginal
communities as hundreds of workers had their jobs stripped from under
them. In the three years up to 1979, more than one thousand workers had
already been sacked as the government was forced to upgrade the token
wages. Access to unemployment benefits was disapproved, as the dole
easily outstripped the ‘training allowance’. To forestall further union
action, the department commissioned a survey of manning levels on
communities. But this was no open-minded inquiry. It’s purpose,
according to departmental documents, was to restructure the workforce
towards award rates "at no extra cost from State budget" - effectively,
to match manpower to money, not manpower to social requirements. The
survey showed a full 50% of the remaining workforce would have to be
sacked to remain within budget, and Killoran admitted this would
"seriously impair the operation of essential services on communities".
That 50% mark was passed in 1983.
The devastating effects of these massive retrenchments are apparent from
official records. In 1979 there were 22 people dependent on each wage
earner at Bamaga, 43 for each wage earner at Cherbourg, 46 at Yarrabah,
50 at Edward River and Doomadgee, 61 at Weipa, and at Palm Island there
were 99 dependents for each wage earner. As family incomes shrank,
social pressures mounted. The department clawed back an estimated
$1million revenue by raising rents. Incredibly, over $306,000 was
withheld from the wages vote in the 1979/80 year to enable a
media-orchestrated rise; house maintenance was drastically reduced so
that tradesmen could be assigned to commonwealth construction projects
and billed against federal funds; other workers were billed against the
Welfare Fund, effectively soaking up Aboriginal trust monies to cover
government liabilities.
With a shortfall of $2million to award levels, Killoran calculated in
early 1980 that he could extract $300,000 by increasing service charges.
But, given the parlous state of reserve housing, he declined to hike
rents further, cautioning that this would provoke a dramatic increase in
the demand for improved accommodation. Electricity and store prices on
the communities were no longer subsidised, making a bitter struggle for
survival on the meagre weekly pay of only $95, at a time when the
state’s minimum wage was $124, and award wages stood at $163. To deflect
increasing union pressure, the department approached the AWU with a
special industrial agreement for Aboriginal reserve workers. To this the
AWU agreed, provided, of course, the set rate was not less than award
rates. The scheme lapsed.
The indefensible
When two Cherbourg nursing sisters sued the department for non-payment
of legal wages in mid-1980, their pay of $79 per week was around half
the award rate. The solicitor-general advised the government that the
"prospect of resisting award wages was far from good". Demolishing the
government’s primary defence, he also declared that the fact of
employing more persons than needed on reserves did not relieve the
government of its legal obligations under federal racial discrimination
legislation. Indeed, it was questionable as to whether the Aboriginal
department was the legal employer of the nurses, whose site of work (the
Cherbourg hospital) was in fact excised from the Aboriginal reserve as a
hospital reserve; and whose work environment was under the control of
the South Burnett Hospital Board. In my opinion, declared the
solicitor-general, award rates apply.
In
an attempt to establish that the nursing staff at Cherbourg were less
than qualified, and working in "a sheltered workshop type situation",
the department commissioned a survey of several other small rural
hospitals. The survey revealed the same inpatient and staff ratios. In
fact, the only measurable difference for the Cherbourg hospital was the
considerable financial gain accruing to the government through the lower
wages paid to staff. The "sheltered workshop" defence was obviously a
non-starter.
Killoran tried a different tack with the crown solicitor. Conveniently
disregarding statistics on hand which confirmed community workforces had
been slashed from 2500 in 1976 to only 1200, Killoran stressed that his
department’s policy was to maximise reserve workforces by paying
training allowances "to those persons who, through lack of qualification
have been unable to acquire suitable employment as one would expect to
find in the general Australian community". Wages of the thirty nurses
were paid by the Aboriginal department, argued Killoran, although he did
concede they were then recouped from the South Burnett Hospital Board
and that the Cherbourg matron actually engaged and dismissed staff.
The response came from senior counsel. He concurred with the
solicitor-general. Nurses at Cherbourg were employees of the health
department (through the hospital board) and thereby not subject to wage
variations under Aboriginal regulations. Further, and significantly, he
also advanced the opinion that s.68, as it presently stood, did not
exempt the Aboriginal department from industrial law. To be binding at
law, he affirmed, s.68 would have to be amended to specifically exclude
payment of award rates to Aboriginal employees, and to authorise the
director to set salary levels. And yet here we are, in 1996, with
crown lawyers still using s.68 as a major plank in the government’s
defence.
Killoran warned the health department of the impending legal action. We
must decide on a stand against award wages for Aboriginal nurses, he
wrote, and must plan a legal strategy to oppose the two nurses. But the
health department was less than enthusiastic, excepting themselves from
involvement in underpayment of Aboriginal employees. We merely
accommodate the Aboriginal department’s arrangement, they protested. By
March 1981 Killoran was again urging a uniform administrative approach
against the threatened legal action. It would appear official
stonewalling overcame the resolve of the litigants. The matter was not
raised again for four years.
Admissions of guilt
It
is clear from file data that cabinet was well aware of the damage caused
by its policy of attrition. "To retrench workers or re-deploy them on
Capital construction (housing) projects will only aggravate the deferred
building maintenance program which already exists on Aboriginal
communities", new minister Kel Tomkins informed the treasurer in
September 1981. With the total Aboriginal workforce now standing at only
1130, an engineered unemployment rate of a massive 92½%, Tomkins
noted that further reductions "would seriously impair the provision of
essential community and other maintenance services".
Another significant item of evidence placed before the Palm Island
inquiry revealed cabinet’s acknowledgement in August 1982 that its
policy on Aboriginal wages was in breach of State industrial laws and
conflicted with federal anti-discrimination. It was only at this late
date that a decision was made "to pursue the objective" of award wages,
but cabinet again affirmed its hard line against enabling funds. Three
months later Killoran informed the treasurer of the serious backlog in
the maintenance of government assets, namely housing. He described rents
and electricity charges as at a ‘realistic’ level and not open to
further increases. Wages were already subsidised through the Welfare
Fund, he wrote, and unless cabinet approved funding, a further 180
workers would have to be sacked. No funds were provided.
It
was not until March 1983 that wages for Aboriginal employees finally
levelled the State’s guaranteed minimum of $170.40. Again cabinet
discussed its breach of State and federal law. By this time a third of
the 1979 workforce had been thrown on the scrapheap, and now a further
100 were to be dumped to accommodate the latest increase. "The reserve
areas are, by comparison with Queensland generally, relatively depressed
in economic terms", the minister told cabinet with breathtaking
understatement. "Without a substantial upsurge of economic growth or an
increase in government servicing aid, the capacity of these areas to
self-fund any reasonable contribution to higher wages costs cannot be
achieved". Again cabinet confirmed its hard-line against funding; and
resolved to muffle public opprobrium by staggering dismissals in order
"to avoid the social and political consequences of any sudden sizeable
retrenchment".
The department was well aware of the appalling effects of this
premeditated policy of attrition. A 1984 survey showed that 81% of homes
at Woorabinda were overcrowded, averaging nearly 8 persons. One
3-bedroom house held 21 people, and one 2-bedroom house held 10.
According to the manager’s report the homes were in dire need of repair,
needing re-lining, toilets and bathrooms. They were serviced by wood
stoves and only cold water. But Cherbourg was at the low end of the
scale. Homes at Palm Island averaged 12 persons, at Weipa South the
average was nearly 14, and homes at Hopevale staggered under an
average 19 occupants!
A
battle of wills
It
was late in 1984 that the QNU reactivated its fight for their members
who were still denied legal wages. Representatives lobbied health
minister Brian Austin, protesting that Aboriginal and Islander nurses
only received the minimum wage and rarely got penalty rates for weekend
and shift work. "If we were to persist in delaying the payment of award
wages", conceded new Aboriginal affairs minister Bob Katter junior,
"some very serious problems could arise". Austin reminded cabinet of the
solicitor-general’s 1981 opinion that as employees of the hospital
board, Aboriginal and Islander nurses were entitled to award wages. But,
as Austin commented, there had been no progress in discussions with the
Aboriginal department on the matter. It is most significant, that for
these employees, subject as they were to the health department,
cabinet now directed Treasury to provide the necessary funds to bring
wages to the legal rate.
QNU representatives were quick to condemn this partial justice. Only
nurses employed at the seven health department hospitals were brought to
award rates; but what of staff at the six Aboriginal and fourteen
Islander hospitals, still underpaid, they argued, by the very department
responsible for Aboriginal and Islander advancement? These employees, as
was the case for all community employees, were victims of Killoran’s
recalcitrance, now at odds, as the files reveal, with his own minister.
Bob Katter had assured the Human Rights Commission in mid-1984 that new
legislation would give administrative controls to community councils,
thereby converting departmental employees into council employees.
"Long-standing concerns such as the one you have raised will be
satisfied", he confirmed. But it is evident that his chief bureaucrat,
in power as head of the department for twenty years, was loath to accept
this reality. When councils lobbied Katter, declaring that government
underfunding placed them at legal risk over wages, Killoran drafted a
reply for Katter condemning their "reluctance to recognise the realities
of Local Authority administration and decision making". In
correspondence with the federal Aboriginal department, Killoran
disparaged councils for "maintaining a fixation requiring an amount
equivalent to an award rate for each person", and lauded the "strong
social welfare component" of his department’s employment policy which
ensured, according to Killoran, "as many jobs as possible are available
in the community". Ignoring council objections that manpower was already
at dangerously low levels, Killoran directed them to reduce or retrench
staff to stay within budget. So much for self-management!
It
was around this time that the QNU representatives sought their meeting
with Katter in pursuit of award wages for all Aboriginal and
Islander employees. Marching into the room, Katter apparently demanded
documents which, as the observer noted, he said he had waited six weeks.
Killoran had pushed his standard defence: these nurses were not hospital
board employees, and no funds had been allocated by Treasury to cover
award wages. This note Katter ostentatiously screwed up and threw in the
bin. The second document was a draft cabinet submission in which
Killoran conceded that nurses’ wages should be upgraded "to forestall
union action as payment of below award rates is arguably in breach of
State industrial law and perhaps infringes certain laws of the
Commonwealth", but warned that to pay the nurses would be to open the
floodgates for the remaining 1100 community workers. Their wage is
consistent with their health care functions, Killoran argued, and
savings from reducing workforces was enabling gradual ‘across the board’
wage increases for all employees. This last sentence, according to the
observer, Katter crossed out for all to see, declaring there was
absolutely no justification for treating this group differently.
Early in 1986 Killoran informed the public service board that the
Transport Workers’ Union, and the Federated Engine Drivers’ and
Firemen’s Union had joined the nurses union in serving notice of legal
action. Killoran requested the PSB take "whatever action is necessary in
the circumstances...to protect the Department’s interests"
[emphasis added]. He also drew his correspondent’s attention to media
reports that Katter had committed himself to full wages for all
Aboriginal nurses, pointing out that no cabinet decision had yet been
made on that matter.
In
March the proverbial hit the fan. Katter deplored Killoran’s
oft-repeated assertions that the government was not liable to pay award
wages, and that successive legal actions settled out of court somehow
vindicated department policy. "The State is vicariously liable", Katter
argued, "and the government stands in a position of extreme legal
vulnerability on this issue". He reminded his colleagues that since 1980
the solicitor-general had concluded that the prospect of successfully
resisting payment of award wages was far from good, and informed them
that the present solicitor-general, the minister for justice, and the
minister for industrial affairs had all confirmed the government would
lose several pending legal challenges.
Katter admitted that department workers were transferred to councils
with insufficient wage funding. It would take $3.8million to bring wages
to the legal level, he said, or else another 245 workers - that’s 32% of
the remaining employees - would have to be sacked. Finally, cabinet
directed award wages be implemented. But once again, holding to its hard
line of seventeen years, release of funding sufficient to cover this
legal obligation was refused. And Killoran was dismissed, after 42 years
with the department.
Documents reveal that strategies were fabricated for the transfer 252
workers to alternative revenue sources. These were listed as the
Community Development Employment Program (CDEP) or work-for- the-dole
scheme, the commonwealth housing program, and the Welfare Fund.
Effectively the State’s obligation would be expropriated from private
social security (the dole), from federal funds (housing), and from
Aboriginal trust monies (the Welfare Fund). In a draft submission to
cabinet Katter signalled his intention "to achieve award rates through
attrition" and pressure on the federal government. He conceded
threatened action by unions exposed the State to between $3million and
$4million, including backpay.
In
June 1986 the FEDFA secretary deplored the policy of attrition against
workers, describing it as "victimisation of those who ask for their
legal entitlement". He pointed out that grader drivers were still paid
$81.30 less than the award of $308. In the same month nurses learned
they would finally receive full wages. In November, and again in April
1987, acting on legal advice, the department again settled
union-sponsored wage actions out of court to avoid a damaging precedent.
What price justice?
This, then, is the background to government policy and practices on
award wages for it Aboriginal employees. A litany of admissions of
deliberate and persistent breaching of State and federal laws; of gutted
community workforces; of devastated social fabrics; of pathological
overcrowding and jeopardised health. All this evidence is on the
government’s own files, identified and catalogued in copies of my thesis
in their possession, but not produced to the Human Rights Commission
inquiry into Aboriginal wages.
The Commissioner adjudicating the inquiry, retired supreme court judge
Bill Carter, quoted extensively from the contested documents in his
detailed findings. He wrote: "The conclusion that [the Aboriginal
litigants] were discriminated against solely because of their race and
Aboriginality cannot be avoided. The wealth of documentation now
available to the Commission permits of no other sensible conclusion".
The government, he found, had "intentionally, deliberately and knowingly
discriminated" against six of the Palm Island complainants. He nominated
restitution of $7000 each, and directed the government make a public
apology for the pain and humiliation caused by this long-term denial of
human rights.
But the Borbidge government has said it will disregard this adverse
finding; a finding which we know, from the multiplicity of legal
opinions and cabinet admissions standing on official files, the
Queensland government has anticipated over a period of nearly twenty
years. Invoking the recent Brandy decision, the Queensland
government, alone of all Australian governments, will ignore decisions
of the Human Rights and Equal Opportunities Commission. They will deploy
a legal technicality to continue a charade which their own documents
reveal has no validity.
The seven claimants now have to fight for scarce legal aid finances and
start the whole process again in the federal courts. This struggle has
recently commenced. And the battle to ensure all relevant
evidence is tabled will likely be refought. How can the government have
the gall to spin out this sorry saga yet further, wasting another
half-million dollars of taxpayers’ money, making these elderly workers
run yet another gauntlet of obstructionism and stress? Are they waiting
for yet another claimant to die in the interim?
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