Dr Ros Kidd
Historian - Consultant - Writer
Stolen wages – US and Queensland
There is no doubt the
Queensland government saw itself as trustee for the Aboriginal money it
held for private individuals. From as early as 1901 legislation stated
protectors ‘acted as trustee’ for wages they controlled, successive
Annual Reports list
‘Aboriginal wages held in trust’ ‘for the natives’ and detail
‘Aboriginal Trust Accounts’, and in 1956 the department’s director wrote
of his authority ‘in his capacity as trustee for any Aboriginal on whose
behalf money is held’.
We now
know the government failed utterly in its duty as trustee. It contracted
children and adults to work when it knew many people suffered atrocious
conditions including physical and sexual abuse. It contracted people to
work at wages as low as 30 per cent the white rate when it knew they
were worth at least equal wages: Aboriginal girls and women filled most
of the high demand for domestic workers, and Aboriginal stockworkers
were continually reported as being more highly skilled than their white
mates. The government was warned almost every decade that employers
were cheating workers of their pocket money, but the government wouldn’t
even issue new books so the old ones could be checked at head office.
In the mid-1960s auditors said there seemed to be no supervision of
pocket money payment, which had averaged around 50 per cent of the
wage. In the 1957 year alone, that’s a probable loss of over $18
million among the 4500 pastoral workers.
We know
the government used the trust funds for buildings on the settlements,
for subsidies to the missions and for costs such as removals to
reserves. We know the government took up to 80 per cent of private
savings for investment so it could keep the extra interest – it was
these funds which built hospitals around south-east Queensland. It
exploited these savings for its own gain for forty years. The savings
were paid back, but in the meantime people didn’t have that money
available for their needs; and it is a breach of trust law to make a
profit from someone else’s trust money.
We know
the government intercepted child endowment and pensions. Instead of
these benefits being extra money to improve people’s health, the
government reduced the grants to missions, forcing them to use these
benefits to cover the deficit. Over the years, from the start of child
endowment in 1941 and the start of pensions in 1960, by simply cutting
its own spending by the amount of the benefits, the Queensland
government is richer by millions and millions of dollars. It also used
endowment for buildings on the settlements and at Aitkenvale near
Townsville.
These are the Stolen Wages, although I haven’t mentioned the failure to
distribute workers compensation and deceased estates, and I haven’t
mentioned government raiding of private savings accounts to pay for
amenities on its country reserves. As we heard tonight, the Stolen
Wages are grounded in, and themselves intensified, the unquantifiable
emotional and social cost of fractured families, unremitting and largely
unrewarded work, lousy conditions and physical and sexual abuses – which
I have described in Trustees on Trial.
When the Queensland government said it was being generous in paying a
maximum $4000 in reparations it knew people might be owed vastly more
than that. When the government said people had to sign away their right
to take legal action it knew almost no-one has enough documents to be
sure this is the right decision. While just over 5000 people were paid
the $2000 or $4000, for most this was a very hard decision and does not
indicate approval for this cynical reparations deal. We know almost one
third of the people who sought the payment were rejected because the
government can’t find their records.
This, it seems, is justice Queensland-style.
So
how do we get real justice for the Stolen Wages? The way the legal
system works makes it very hard for an individual to successfully sue
for lost wages and entitlements. This would depend on having evidence
which is strong enough to uphold a charge that money was defrauded or
misappropriated from their account. And of course, since the government
still controls all the records, this relies on them finding sufficient
files, and we know from the big percentage whose claims were rejected,
that this is highly unlikely. It is unbelievable to me that the
accused, so to speak, controls the evidence which can be brought against
them while the whole appalling array of management and accountability
failures, of negligence and misuse, remains quarantined from scrutiny.
So
this is why I wrote Trustees on Trial. I read about the class
action started by Elouise, and I realised that there were many basic
similarities: inadequate accounting systems, inadequate controls over
receipts and withdrawals, inability to determine cash balances, failure
to provide accountholders with meaningful statements of their accounts.
These words, in fact, were said by the District Court judge in the US
class action, where Indian fund management was described as so chaotic
it was ‘akin to leaving the vault door open.’ That certainly applies
for Queensland. As in the Cobell case, the Queensland government
has never accounted to the people for the monies it held for them in
trust, and people have no way of finding out unless a court compels it
to adhere to standard trust practices. Like the Cobell case,
people are seeking to recover what was rightfully theirs
Given
its superior expertise and comprehensive authority, and the fact account
holders were denied knowledge of dealings on their funds, it could be
argued governments had a legal obligation to use ‘a greater degree of
skill’ than the ordinary man of business in preserving the trust funds
in its control, and a requirement for a higher standard of
accountability.
I note the US court
confirmed in the Cobell case that the duty to account is ‘black
letter’ trust law; that losing the records is not a shield against
litigation but a primary breach of trust law. Indeed in 2003 the US
court demanded the government account for all money and property
controlled in trust since 1887. This, it seems, is justice US-style.
Although as Elouise has said, the government has not yet complied with
these court orders.
There is also the wider trust duty which arises when a person or
institution holds the power to adversely affect the legal or practical
interests of another, and where the other person is vulnerable to that
power being abused; this is called a fiduciary duty. In Trustees on
Trial I look at the circumstances here and internationally where
courts say they will enforce the fiduciary responsibilities of
governments that manage Indigenous money and property. Courts in both
Canada and the US have said governments are legal trustees in this role
as trust managers and that they are therefore legally responsible for
good management of that money or property.
Although this has not been successfully argued in Australia no cases
here have examined the detailed evidence that I have spoken of for
Queensland. And it is not only international law that convinces me the
government did hold a fiduciary duty to protect Aboriginal interests in
its management of Aboriginal lives and finances in Queensland. I found
that in recent Federal Court decisions the judges have said Australian
courts will recognise a fiduciary duty enforceable by the courts if an
economic interest is at stake. Stolen Wages are economic
interests. And that is the core of Trustees on Trial – that
successive Queensland governments have abused their powers and duties in
their trust management of Aboriginal finances, and that a successful
case could be mounted that the government is a legal trustee. This
would put the government’s financial controls under court scrutiny; it
would have to account for all money held in trust since the turn of last
century.
BACK HOME
|