Dr Ros Kidd      Historian - Consultant - Writer

Stolen wages

Do elderly Indigenous people who have never been paid for their work have any legal options?

Transcript

This transcript was typed from a recording of the program. The ABC cannot guarantee its complete accuracy because of the possibility of mishearing and occasional difficulty in identifying speakers.

Damien Carrick: First, tomorrow in Brisbane a Senate Inquiry is holding hearings on what has become known as the Stolen Wages issues.

From the 1890s right into the 1970s thousands of Indigenous Australians were forcibly assigned jobs, often away from their own community. Many were sent out to work as farm hands, domestics or factory workers, often doing the dirtiest and most dangerous tasks. They were paid pocket money and a large portion of their wage was kept by authorities on trust.

Ostensibly the scheme was designed to make sure that the young were properly trained and both young and old were usefully occupied. And the withheld wages were supposed to have been invested wisely, for use later in life. But most never saw their money.

In Queensland, the state government has addressed the issue by offering a maximum $4,000 compensation for those over 50 and $2,000 for those under 50, and nothing for descendants.

Yvonne Butler lives in Townsville. She's received a number of letters from the Queensland government, telling her about the compensation offer. She describes the offer as insulting, and says she won't take it up.

I caught Yvonne Butler just before she was about to board the train from Townsville to Brisbane. She's travelling south to tell her story at tomorrow's Senate Inquiry hearing. The 16-hour train trip gives her plenty of time to reflect on her early working life. As an independent-minded teenager she found herself work as a domestic. But then an avaricious local policeman stepped in for a piece of the pie.

Yvonne Butler: Yes, after finishing Year 10 and spending six months in the township of Mount Garnet and worked as a domestic there, I was placed under the Aboriginal Protection Act when the police sergeant realised I was working, because as a rule it was always they found the work for you, and you were sent out to those stations. But I'd found this job and they'd come down with an employment agreement. And I remember refusing to sign it, because I said, 'Why should I be under the Protection Act, because I can read and write?' And they said, 'No, your parents are under it, so you have to be under this Act.'

Damien Carrick: So they took a percentage of your wage then?

Yvonne Butler: Yes. The lady, prior to signing that agreement, was quite happy to give me cash in hand every Saturday, and it changed once I signed on that dotted line. I managed to get a few shillings pocket money.

Damien Carrick: What do you reckon of the offer made by the Queensland government to pay out people who worked under this system? I think it's true, if you're over 50, to a maximum of $4,000. What do you think of that offer?

Yvonne Butler: It's laughable. Yes. Laughable, it's an insult.

Damien Carrick: Do you understand why some people have taken up the offer?

Yvonne Butler: Yes. My sister, who's 62 years old, she's in poor health, you know, she's going blind. My mum, she'll be 85 on Christmas Day this year, she was born on a cattle station, she worked all her life, she would have got her freedom mid-70s, and she didn't work till 1980.

Damien Carrick: So your mother, who worked under this system and had a large amount of money, if you like, docked from her pay, she got $4,000 for what you're saying was a lifetime of work under this system?

Yvonne Butler: Yes. A lot of the people who are in poor health and who are quite old, they've taken their money for their funeral fund. They don't want their families to be in any financial difficulty. But this, this is a healing journey for me. The suffering that I've seen in my township; I myself as a child suffered malnutrition. From 8 years old to 10 years old I was hospitalised, and I have those medical documents. And my illness, it states on there, my illness was malnutrition.

Damien Carrick: Both your parents worked?

Yvonne Butler: Both my parents worked. My Dad, station owners that knew of my Dad, would see him and say 'Oh, you must have that much money a kangaroo wouldn't be able to jump over it.'

Damien Carrick: Because he was a valued worker?

Yvonne Butler: Yes. And when he died in 1967, he apparently, from when I got his file in March of 2002, only had $99 in his account.

Damien Carrick: For how many years of work?

Yvonne Butler: Yes, well that last station he worked at, he worked there for 46 years and prior to that he worked on another station for 21 years.

Damien Carrick: Yvonne Butler, who never saw any of the money taken from her pay packet.

And about half of the roughly 16,000 eligible Queenslanders have applied for compensation.

Researcher Rosalind Kidd is the author of a new book: Trustees on Trial. It documents the paper trail of what happened to the money earned by people like Yvonne and her family.

Rosalind Kidd exposes widespread incompetence, indifference and outright fraud by those who oversaw the Queensland system. She estimates the total amount of money owed, unpaid pocket money and funds kept in trust, could be in the billions.

Rosalind Kidd: Well for Queensland it seems that probably half the Aboriginal population was brought under government control, and from the turn of last century, the government said, 'Well everybody under control; we will contract you out to work whether you want to or not, 12 months at a time, away from your family; we will dictate what wage you get; we will take control of your money, and we will run your bank accounts. And this actually operated, amazingly, into the early 1970s. So what I discovered was the level of money that went missing, but more importantly and more horrifying for me was the awareness of the government, the warnings to the government from the earliest days that money was being defrauded, that employers who could pay a certain amount, it was called pocket money into people's hands, that the government was warned that they never knew whether employers were paying that or not, And as late as the mid-1960s, the audit report then said that the government has absolutely no idea whether it was ever paid properly. Now that could be as much as 80% of the wage. So immediately, even on that small factor, you're looking at from the 1957 year, about $18 million potentially, they have no idea whether it was paid or not, $18 million in today's terms. The remainder of the wage went to the police protector, which is the government agent. The government was warned year after year after year, that the protectors were wrongly getting thumbprints on the dockets and I should say to the listeners that of course many Aboriginal people were not even given an education, so many could not sign their names, and the thumbprinting system, it wasn't brought in till the 1930s. So for 30 years, anybody could have a docket and say, 'Oh yes, this was John's money, and I paid him 10-pound, and there was no idea whether it was paid or not.' But even after thumbprinting came in, the auditors used to say (the words they used): 'They are so carelessly taken, as to be useless for verification.' Amazingly I discovered in the 1950s that all of the workers who were sent out from Brisbane, they didn't even have a thumbprint database for them. Nor for the workers off the northern mission. So you get some idea, just from the wage itself, and we haven't even touched on all the trust funds, all the child endowment or the inheritances, which were also taken by the government, and misused on many instances.

Damien Carrick: Where did the money go?

Rosalind Kidd: Well I think they used it to save themselves paying out from Treasury. The savings actually went into a trust fund, into a single savings account after 1933. As they said at the time, this was to minimise fraud by the police who are the protectors, so they knew perfectly well after 30 years, the fraud was so endemic. But what they did with those savings and there was about $16-million in today's terms of Aboriginal savings.

Damien Carrick: And what year was that?

Rosalind Kidd: 1933. They had already planned, because I've seen the letters, they had already planned that they would take about 80% of those wages and put it into an investment, and the purpose of the investment was to raise revenue for Treasury. Now I mean, you've got to think back and say to yourself 'Well hang on a minute, if my money is in the bank, and if 80% of it is tied up in investment, it's not even there when I ask to use it.' And I should say that time and time again on the accounts, people would say 'Can I have some of my own money?' and they would be told, 'No'. And what really makes you angry today as a researcher, is this letter will be sitting on the file, and at the bottom of it, somebody will have scrawled the amount that this person might have had, and it may be the equivalent of $3,000 or $4,000, and yet they are being told they are refused permission to buy a shirt for instance, or take their kid to see grandma in another town.

Woman: At Camuns, Mr and Mrs Camuns, it was 1/6d a week. A shilling into a trust fund with the AP Board, and 6d a week pocket money for me. But I never ever got that 6d.

Damien Carrick: Rosalind Kidd thinks the Queensland compensation scheme is grossly inadequate. Although not a lawyer, she believes that there could be grounds for a legal action, alleging a breach of fiduciary duty. In other words, because the government acted as a trustee, it held a position of trust over Indigenous people, and therefore was obliged to act solely for their benefit.

For plaintiffs, establishing a breach of fiduciary duty is preferable to establishing a conventional breach of trust because it allows you to claim exemplary damages.

Now while we have here in Australia a clear legal position on breach of trusts, the concept of breach of fiduciary duty seems confined only to economic relationships.

Rosalind Kidd: Australia still seems to be, as I understand it, largely in the position that the courts are reluctant to adjudicate on the way a government will exercise its discretionary powers. I mean a fiduciary is somebody who has control over somebody else's interests, and may well abuse those interests. And that's what I see has happened here. Now of course, a government gets its power from, it's a democracy, they get voted in and they have vast discretionary powers. Courts have generally said, 'Well perhaps we don't interfere with the way the democratic powers are exercised.' But just in the last four or five years, there have been a couple of cases not relating to Aboriginal interests at all, where the courts have said, where a fiduciary duty an enforceable fiduciary duty was argued, and the High Court for instance stated that in Australia we don't have that wider range that they do have in the US and Canada, but it said the accepted doctrine in Australian courts, and this is the statement in the High Court, is that' we will only find an enforceable fiduciary duty where economic interests are at stake'. And of course that interested me greatly because that is precisely what I am arguing from the Aboriginal point of view. So I believe there is a strong possibility now that this sort of evidence is out, and now that I guess (and I'm not a legal expert but I have tracked through all the law), and I think there's a very strong possibility that this might stand up in Australian courts.

Damien Carrick: Author and researcher, Rosalind Kidd.

There is a lawyer who's thought very carefully about these legal arguments. In fact he was involved with a stolen wages cases which ended in a confidential settlement.

Tony Woodyatt is the coordinator with QPILCH, the Queensland Public Interest Law Clearing House. He says a claim for breach of trust has solid legal legs. But alleging a breach of fiduciary duty might prove more difficult. In any event, he says lawyers are currently looking for a test case.

Tony Woodyatt:We've always taken the view that it warranted a political solution, that to rely on the risky nature of court proceedings was not the best way to go, but if that was necessary to get governments to properly face up to this issue, well then we would do so. Now we've had a number of applications to take that forward, and it's always when you take a test case, about finding the right case because you don't want to take a case that's going to lose.

Damien Carrick: So you and other public interest lawyers are currently in the process of identifying an appropriate test case?

Tony Woodyatt:That's right, yes.

Narrator: The younger boys were taken to the Kinchella??? Training Home for Aborigines, where they were given some training as farm labourers and handymen before being sent out to work on cattle or sheep stations throughout the State.

Man: Looking back on it now I could see it as a type of slavery, but -

Damien Carrick: Extract from the film 'Lousy Little Sixpence' which documents the experiences of Indigenous Australians in New South Wales under the Aboriginal protection system.

Simon Moran is the principal solicitor with PIAC, the Public Interest Advocacy Centre based in Sydney. About a year ago, New South Wales created the Aboriginal Trust Fund Repayment Scheme. Unlike the Queensland compensation offer it allows claimants to appear before a tribunal and tell their individual stories. And most importantly there is no $4,000 cap on compensation.

Simon Moran: I think some payments have been made in the tens of thousands of dollars, and that would relate to someone who has been in employment for a considerable amount of time. We're looking at wards who've been working for three or four years and have had their wages paid to the Board. So far we've only appeared before the panel once. She was a young woman who was a Ward of the State, and who had been indentured as an apprentice to a number of employers, I think around 7 employers in total. And she worked for two to three years before she turned 21. And when she turned 21 she was liable to be paid the residue of her Trust Fund. She claimed that she had not received payments from the fund; there were some records on file that there was a substantial amount of money paid into her Trust Fund by her employers, and there were also some records that she had received payments from the Trust Fund.

Her evidence was very clear though, that she had never received payments. And so she explained her situation at that time, which was that she was in fear of the State coming and taking away her children, and she was constantly on the move. So she explained very clearly that she was not at relevant addresses where it was claimed that cheques were sent. And she gave very strong evidence and very powerful evidence about her situation. Hopefully that will be persuasive to the panel.

Damien Carrick: And so that panel has yet to make a final determination on her claim?

Simon Moran: That's right.

Damien Carrick: Simon Moran, principal solicitor with PIAC in Sydney.

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