Dr Ros Kidd
Historian - Consultant - Writer
Justice: a variable commodity
In
April 1997 the Queensland government issued a directive that all Cabinet
documents and all legal advices be removed from locations on
administrative files and returned to the control of the Cabinet
Secretariat for "safe storage". This does not refer to records of
Cabinet deliberations which are already sealed at State Archives for a
30-year period. So why this new action? And why now? I’d like to use
this forum to look briefly at the context of this extraordinary edict,
to signal the ramifications for Aboriginal interests and to suggest a
course of action to protect those interests from political abuse.
Over the last twenty years national attention has increasingly focused
on Aboriginal affairs, on the issue of land rights in general and more
recently on the battle over native title. The two main fronts of this
battle are located in Queensland: Eddie Mabo’s ten-year fight for
recognition of title on Murray Island; and the Wik people’s fight for
recognition of title in the west of Cape York. The High Court’s 1992
decision that native title might conceivably survive where it had not
specifically been annulled through the granting of freehold title opened
up in law a procedural opportunity for mainland Aborigines to pursue
title to unalienated land. And the High Court’s majority decision of
1996, allowing that pastoral leases did not necessarily pre-empt native
title claims, has confirmed the status of Aboriginal people as bona
fide litigants. They now have a recognised right to mount claims for
a form of title to large areas of leasehold and Crown land.
The successful transition between the lodging of the claim and the
winning of native title depends largely upon providing sufficient
convincing evidence that the claimants have maintained continuing links
with the land in question. Broadly speaking this evidence derives from
three provenances: the knowledge of the people themselves preserved
through discussion, instruction and ceremonies; accumulated
anthropological information describing languages, culture and artefacts;
and surviving administrative reports of movements of key individuals or
groups in and around the target area.
The State government maintains ultimate control over the storehouse of
records covering official activities over many decades which are
accumulated in its name at Queensland State Archives. While most records
are available on request, those deemed to contain sensitive or personal
material require official permission from the relevant department before
they are made available to researchers. It is true that files have been
retrieved from Archives by various departments which have then been
reluctant to relinquish them. At the time of my PhD research in 1991,
more than a dozen files were retained by the Aboriginal department
which, in some cases, denied it had ever received them. These were
located and returned to Archives. I will return to this irregular
trafficking in records, but for now it could be said that the April
Cabinet directive, dealing as it does with records of the last thirty
years, will not greatly impede the identification and recording of
historical evidence which could be presented to affirm continuing
Aboriginal interaction with claim areas.
While land rights have been the pre-eminent arena of scholarly, legal
and media attention since the 1970s another, perhaps more dramatic,
aspect of government actions and intentions has recently been exposed to
public scrutiny. I refer here to the operations of governments during
more than a century of administration of Aboriginal lives. Here in
Queensland it is exactly 100 years since the first law was introduced
specifically targeting those of Aboriginal descent for a whole network
of interventions and controls. Subsequent regulations and amendments
authorised the most intensive machinery of supervision and surveillance
ever imposed on one sector of our population. Under a variety of
designations, the Aboriginal department controlled marriages, directed
where and how people lived, set up compulsory employment contracts, took
over private savings, and was responsible for education, policing,
justice, health and all aspects of the running of Aboriginal communities
and country reserves. Around Australia other States implemented similar
regimes of control early this century, and hundreds of thousands of
Aboriginal people over the years, to their horror, found themselves
redefined as wards of state.
In
naming themselves the guardians of Aboriginal interests governments
effectively deprived Aboriginal people of rights of choices and
responsibilities. In Queensland these controls continued almost unabated
into the late 1970s. It has only been since the late 1980s that
Aboriginal councils have been authorised to manage their own budgets and
administrations. So if we are to understand the present circumstances of
so many Aboriginal people whose lives have been structured by government
edict we must understand how governments have operated to produce these
conditions. Prevalent destitution and despair are both an outcome and an
indicator of deficiencies in the practices of government. They are a
problem of government; they are not, and never have been, an
‘Aboriginal’ problem. Surely it is time to question how these
all-powerful and unpopular guardians have managed to make such a
monumental mess of their duty of care? To investigate how one hundred
years of control has produced such deadly and dispiriting outcomes for
thousands of Aboriginal wards of state across Australia?
During the terms of their proprietorship governments have controlled
almost everything which can be known about their management of
indigenous people. They have jealously restricted information which
illuminates their operations, in general divulging only what will
validate their actions. It is this closure which has facilitated the
quarantining of debate into rhetorical cul-de-sacs such as "it all
happened long ago", "officials meant well at the time", and "why should
whites feel guilt about the actions of their forebears". But one hundred
years of control is not reducible to such teflon phrases.
In
1991, courtesy of Marcia Langton who was briefly in a key government
position, I gained open access to the files of Queensland’s Aboriginal
bureaucracy for the purpose of writing a PhD thesis on Aboriginal
affairs in this State. What I found during fifteen months of research
both fascinated and horrified me. In an account spanning the years
1840-1988, I detailed as many reference sources as possible as an
indication to Aboriginal and non-Aboriginal inquirers alike of the type
and scope of information available. We can now, finally, focus our
critical attention more acutely - on the ongoing processes of
government.
The voluminous records of Aboriginal lives and government practices
during the history of white occupation is of vital importance. These
details of the trauma and the trivia of government intrusions in private
lives can now be useful to those who were never allowed to know why they
were so coldly and comprehensively constrained. Already Aboriginal
litigants are using evidence from official records to mount legal
challenges against their erstwhile guardians. But the party that has the
most to lose in this long overdue assessment of accountability still
retains control over the storehouse of evidence upon which such
assessment will be based. Experience suggests that the outcomes of
justice are precariously balanced upon this inequitable point.
Take the recent Palm Island Inquiry, for example. Here seven Aboriginal
men and women brought action under the Human Rights and Equal
Opportunities Commission charging that the government had illegally
underpaid them during the period 1975-1985. Despite months perusing
multiple copies of my thesis in which the whole history of the
government’s underpayment of its Aboriginal employees is canvassed in
careful, and closely referenced, detail, crown law tendered not one of
these crucial documents to the April 1996 Inquiry as relevant to
government policy. When it became known that I would produce copies of
this evidence in support of my Affidavit as expert witness, notification
was received from crown law on the eve of the Inquiry suggesting I could
be sued for damages. At the Inquiry it was argued unsuccessfully that
both the thesis and myself were irrelevant; and immediately after the
Inquiry the government demanded that all research material "of any kind
dealing with any topic" obtained from files of the Aboriginal department
be forfeited within seven days. The originals of all this material are,
of course, still on its own files. Why would the government want to shut
down a five-year research collection, obtained with written official
permission?
In
this case the government failed to prevent relevant evidence being
placed before Commissioner Bill Carter, evidence which was liberally
quoted in his damning findings of a deliberate, knowing and intentional
underpayment on racial grounds. (Having scorned these findings, the
government capitulated in April 1997 after the action was renewed in the
Federal Court. Settlement included a public apology and payment of $7000
in compensation to each of the complainants, now known locally as The
Magnificent Seven.) The research collection remains protected, securely,
out of government hands.
Importantly, the matter of the Queensland government deliberately
underpaying its Aboriginal employees has not been resolved. This
settlement is merely the latest in a series of settlements on the same
point dating back to 1979. Each settlement was preceded by
chest-thumping from a government publicly proclaiming its legal right to
underpay Aboriginal workers while privately accumulating legal opinion
from eminent advisers including the Crown Solicitor and Senior Counsel,
who stated that the requirement to pay award wages to Aboriginal
employees was relevant and binding and that Aboriginal claims would
succeed in a court of law. No doubt those who peruse the files relating
to the Palm Island Inquiry 30 years from now will find similar advice to
that recorded in May 1978: "Settle as quickly and quietly as possible."
Indeed documents on administrative files show that on several occasions
- and as recently as 1986 - Cabinet discussed its breach of state and
federal laws in its adherence to this policy of underpayment. Anyone
reading this documentary evidence is left in no doubt as to the
correctness of Commissioner Carter’s conclusions.
At
the present time there are many other Aboriginal ex-employees of the
Queensland government preparing legal actions on this same abuse of
rights; we can assume the government will replay its charade. There are
also many other ex-wards of State preparing legal actions against the
government to recover missing savings. After decades of government
control of their income, after decades of being refused permission to
even see their bankbooks to check on official transactions on their
earnings, many found to their horror in the late 1960s that they were
left with a pittance. Questions were easily brushed aside by the
department: evidence of particular accounts was all but impossible to
find, files were hopelessly incomplete and muddled, it was all a long
time ago, etc. Now, however, with a whole framework of reference
information to work from, pursuit of file documents is confirming the
incidence of negligence, fraud and mismanagement.
It
is not only at the personal level that Aboriginal people are intending
to demand accountability from the State. In seizing private earnings
since early this century the government created for itself a nestegg
worth millions of dollars in today’s terms. This pool - swollen by a
range of compulsory levies in addition to the income tax which we
all paid, and by the government garnisheeing of child endowment and
pensions - was invested to raise interest to offset spending from
consolidated revenue. While workers and pensioners languished in poverty
these monies, theoretically held in trust for them as Aboriginal wards
of state, were lodged in public utilities and rural hospital expansion
projects, on capital works projects and on a range of departmental
outgoings - such as emergency relief and rations, and costs of
compulsory relocations - which were rightly government liabilities. At
present a massive class action is underway involving around 100 people
under the auspices of Queensland’s Aboriginal and Islander Legal Service
Secretariat (QAILLS) and funded through ATSIC. For some time now
researchers have been culling the files to compile a dossier which will
throw light upon this long and questionable use of Aboriginal monies.
This, then, is the context of the government directive of April 1997.
For several months, under cover of this directive, the government has
been taking files from State Archives and taking documents from files.
The point is, of course, that there is no one to oversee what government
personnel are removing; there is no check on what they are doing with
the extracted documents; there is no mention of those documents being
returned. Questioned recently on this unsafe trafficking in documents,
Aboriginal Affairs bureaucrat Jim Wauchope "denied there had been any
destruction or removal of the Cabinet files"; yet flags are accumulating
on a range of files indicating exactly the opposite.
It
is conceded that the protection of Cabinet deliberations from public
perusal for a 30-year period is an accepted cornerstone of the
Westminster system. This allows, it is said, "robust" discussion and
argument on policy matters in the security that ministerial viewpoints
and government policy are not immediate public knowledge. All Cabinet
documents - that is, all records of Cabinet deliberations and all
documents which are discussed by Cabinet - are tied up in red tape for
the appointed period. But here in Queensland we have a very important
variation.
In
1995 the Labor government of Wayne Goss amended its own 1992 benchmark
Freedom of Information Act to expand retrospectively the
definition of a Cabinet document. Through generous terminology this
category has virtually no limits to its application. Because now
anything at all can, conveniently, be "proposed" as a Cabinet document
and excluded from public scrutiny: it doesn’t have to be relevant to
Cabinet discussions, it doesn’t have to go on the table, it doesn’t even
have to be acknowledged. These "Cabinet documents of convenience" are
simply put in a box, slid onto the floor of the Cabinet room, and become
invisible for a 30-year period. During which time, of course, a range of
legal actions will be fought out to bring to account those whose
colleagues and predecessors have so much to gain in keeping
incriminating evidence out of the justice system.
The attorney-general at the time insisted that the amendment was
essential for "good Government and sound decision making". But from the
opposition benches current premier Rob Borbidge labelled the
retrospective closure of documents which "had never been through Cabinet
[and] had never been near Cabinet" a farce, and accused the Labor Party
of introducing the adjustment to avoid accountability: "Few pieces of
paper would exist in any back drawer along the length and breadth of
George Street that would not be covered by this legislation." And our
current attorney-general Denver Beanland described the amendment as
"freedom from information legislation" devised to "ensure that members
of the public do not have access to information to which they are
rightfully entitled", adding that "in the interests of the people of
this State, we will oppose this legislation in the strongest terms."
Should we be surprised, now that they are in government, that these
erstwhile indignant politicians are assiduously employing this
mechanism? That selected information relating to the running of this
most secretive and most notorious department is now being masked for 30
years? Is it good government to abort accountability? Is it good
government to maintain a policy which is in breach of state industrial
law? To wilfully quarantine for 30 years evidence which is known to be
crucial to the legal rights of one’s constituents? Is it good government
to make a mockery of the processes of law, proclaiming an innocence
which is belied by documents which have intentionally been concealed?
It
is one thing to put in place processes for adjudication of claims of
government mismanagement or abuses of rights; it is quite a separate
matter to ensure that both parties have equal access to the body of
information in which such adjudication is grounded. It is less than
eighteen months since crown lawyers, in full knowledge of the true
facts, stood before Commissioner Carter at Palm Island and argued there
was nothing to suggest the government had acted improperly in
underpaying Aboriginal employees. Copies of the government’s own
documents proved otherwise. What a travesty of justice would have
occurred if the government had succeeded in concealing this evidence!
The storehouse of records which detail government operations in its
management of Aboriginal lives is of critical importance. Not only is it
essential if Aboriginal people are to obtain justice in legal forums, it
is essential for our knowledge of our history and our understanding of
ourselves. It is essential if we are to demand accountability of the
officials who wield such frightening powers in our names. This
information is not the property of temporary politicians to censor and
conceal at their whim.
It
is not in the interests of good government that those with the most to
lose in facing the truth can so easily distort the evidence. We
desperately need a neutral agency to take control of this invaluable
information; to ensure that the processes of justice are not skewed even
before Aboriginal people can present their cases to the courts. We must
not allow a perpetuation of the lies of the past. It is up to all of us
to demand truth in the present and for the future. This is essential for
the reconciliation so many of us truly hope for.
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