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Launch of Trustees on Trial - recovering the stolen wages by Dr Rosalind Kidd

Commission Commission – General

Launch of Trustees on Trial
- recovering the stolen wages by Dr
Rosalind Kidd

 

Brisbane Writers Festival
- 14 September 2006

President John von
Doussa


I
would like to acknowledge that we are meeting on traditional Aboriginal land and
pay my respects to the traditional owners past and present.

It
is my great pleasure to be here today to launch Trustees on Trial
- recovering the stolen wages by Dr
Rosalind Kidd.

As
many of you know, for over a decade Dr Kidd has been a tenacious and dedicated
advocate for the rights of Indigenous people. She has focused especially on the
gross inequities that occurred through and under the various 'Protection
Acts' that operated in Queensland from the 1890s to the 1980s.

Palm
Island payments process

In
1996, Dr Kidd was an expert witness in the Palm Island Wages
Case. In this case the Human Rights and
Equal Opportunity Commission found that the past decisions of the Queensland
government to pay wages to Aboriginal people employed by the Government at about
one third the rate payable to non-Aboriginal people was in breach of the Racial Discrimination
Act 1975 (Cth). In response, the
Queensland Government introduced the 'Underpayment of Award Wages
Process' in 1999.

This
process made available a single payment of $7000 to people employed by the
Government in Aboriginal Reserves between 31 October 1976 - the date the
RDA commenced - and 29 October 1986 - from which point ordinary
award wages were paid to everyone.

However,
this compensation payment left two other aspects of the stolen wages campaign
unresolved.

Underpayment
of mission communities

The
first issue was the underpayment of wages to Aboriginal people employed by
church organisations on mission communities. This topic is presently the
subject of litigation in the Federal Court.

The
first claim against Queensland was unsuccessful at
trial.[1] The court found that the underpayment was not a result of discrimination
contrary to the RDA primarily because the church, not the government, was the
employer.

That
decision is under appeal, and there are other similar cases awaiting trial. It
remains to be seen whether Queensland is ultimately found liable as an accessory
to the underpayment of Indigenous workers by the church organisations as it
provided funding for the employment.

The
Indigenous Wages and Savings Reparations Process

The
second remaining aspect of the stolen wages campaign is central to Trustees on Trial. It concerns the fate of the savings,
wages, endowment payments and pensions of Indigenous people that were controlled
by State of Queensland under the Protection Acts.

It
seems that these moneys, on being taken by a 'Protector', were in
the first instance credited to accounts in the names of the persons concerned.
Certainly the legislation contemplated this.

But
the moneys so credited have never been properly accounted for.

After
sustained pressure from Stolen Wages campaigners - including Dr Kidd
- in 2002 the Queensland Government conditionally offered a one-off
payment of $2000 or $4000 to Aboriginal people under the 'Indigenous Wages
and Savings Reparations Process'.

Many
eligible applicants did not accept this offer.

'Trustees
on Trial' explains this low take up
rate was partly due to an inadequate consultation process with affected
communities, and an understandable perception that the offer was 'too
little, too late'. Moreover, many Indigenous people felt that the paltry
amount on offer for what was - in some cases - almost a lifetime of
lost wages was simply insulting.

Dr
Kidd has harnessed all her considerable skills as a historian to show why these
feelings are justified. She meticulously documents the devastating impact of the
Queensland Government's administration of Indigenous affairs under the
very laws that purported to protect Indigenous people.

The
book records instance after instance of the misappropriation, misuse and loss of
moneys taken into care by the 'Protectors'. Tragically, the loss of
these moneys has resulted in many Indigenous people being caught in a cycle of
intergenerational poverty that persists to this day.

A
point of equity?

At
its commencement the book announces that its purpose is to bring a legal
perspective to the realities of history. To this end, Dr Kidd develops the
argument that the 'stolen wages' came into the hands of the state in
circumstances that render the state a trustee, subject to a host of fiduciary
duties which impose continuing legal obligations to account for all these moneys
and to compensate in today's value for all that was lost.

From
a legal point of view the issues are
complex. Academics and lawyers can debate the
prospects of legal action based on the principles of equity explored in Trustees in Trial ad infinitum. However, the moral
obligation of Queensland to provide a just outcome for Indigenous workers who
were systematically robbed over many years is clear.

A
moral obligation

Perhaps
the greatest values of Trustees on
Trial is to lay bare the historical record
of financial mismanagement and the moral failure of previous Queensland
Governments to act on evidence of systematic underpayment, fraud and suspect
dealings with trust moneys.

The
book gives justification for the often expressed view that the issue of stolen
wages is one of the great scandals of Australia's history.

As
Geoffrey Robertson QC observes in the forward to his book, Premier Beattie at
least put forward a scheme that his government hoped would achieve an outcome,
and for that perhaps he at least deserves two cheers for acknowledging a
responsibility.

However,
the Stolen Wages Reparation Process has not resolved many of the key issues.
This failure to reach a just and equitable outcome in response to one of the
great scandals of Australia history continues to act as a bar to reconciliation.

The
way forward

Trustees
on Trial is unashamedly intended to give
the Stolen Wages Campaign new impetuous by disclosing to the world what really
happened.

In
his forward Geoffrey Robinson QC expresses his view that the equitable
principles which Dr Kidd has explored may not be the best way forward.

I
too wonder whether litigation based on the obligations and duties of a fiduciary
is the best way forward.

I
think the solution most likely to advance the cause of reconciliation would be a
negotiated settlement. This settlement must truly be the result of real negotiations - not solution imposed unilaterally by government on a take it or leave
basis.

It
must be a settlement arrived at through proper consultation with Indigenous
communities it seeks to redress. It must be a settlement that recognises on one
hand the moral and legal obligations resting on the Queensland Government and,
on the other hand, the reality that any figure of compensation can only be an
arbitrary approximation of the true loss and the need for communities to
discount their claims somewhat to achieve finality without further
delays.

It
is clear that whatever other flaws may be found in the 2002 Reparation Process,
the amount offered was obviously too low -much less than the arbitrary
amount available to people under the Palm Island Case process and pitifully
little for what was - for some people - a lifetime's work.

The
scandal of the 'stolen wages' is not confined to Queensland. Similar
problems, though perhaps on a lesser scale, also arose under the
'Protection' policies of other states, and - despite some
progress in some states - they remain to be resolved.

Dr
Kidd's book makes a very valuable contribution to understanding why the
stolen wages scandal is still a live issue. It should be read by every
non-Indigenous person in Australia so that they can understand the continuing
resentment and frustration simmering within Indigenous communities over the
Stolen Wages.

The
Senate Legal and Constitutional References Committee is presently holding an
Inquiry into stolen wages in Australia and the research contained in Trustees in Trial provides a timely resource for the
Committee as it tackles this important and difficult issue.

I
congratulate Dr Kidd, on this her second book, and have much pleasure in
formally declaring Trustees on Trial launched.


[1] Baird v Queensland [2005] FCA 495.