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Law Seminar 2007: Stolen Wages - The Way Forward by Robynne Quiggin

Legal

Speech for a seminar organised by

Human Rights and Equal Rights Commission

on the topic of

Stolen Wages: The Way Forward -

The Contribution of the Aboriginal

Trust Fund Repayment Scheme

by Robynne Quiggin,

Aboriginal Trust Fund Repayment Scheme

9 March 2007

I'd like to begin by acknowledge the traditional owners of the land on which we meet, the Gadigal people. I would also like to acknowledge elders and colleagues here today, Senator Trood, Johnathon Hunyor, and to thank President Von Doussa for inviting me here today.

The subject of my talk at today's legal forum on Stolen Wages is the operation of the New South Wales Aboriginal Trust Fund Repayment Scheme, and particularly the role of the Panel. As a measure for redressing the repayment of Stolen Wages, I think the NSW Aboriginal Trust Fund Repayment Scheme is playing one part in dealing with a particular section of the many matters which remain as unfinished business for the Aboriginal people of New South Wales. By its nature, the problem of stolen wages is linked to wrongs such as the Stolen Generations, the underpayment of wages to Aboriginal people, and other injustices. So what is the contribution of the Aboriginal Trust Fund Repayment Scheme? It provides a mechanism whereby some Aboriginal people whose monies were placed in trust buy the Aborigines Protection and later the Aborigines Welfare Boards, can apply for repayment of those amounts. In circumstances where the person has passed away, their descendants can also apply for repayment of monies owed. In addition to repaying $600,000 so far, in amounts ranging between a few hundred dollars and $20,000 to the rightful owners, the operation of the Scheme is providing empirical evidence as to the strengths and limitations of an evidence based repayment system. It has also created traction in the location of previously unknown government records and the indexing of the collection. Apart from the actual repayment of funds, this empirical data about the operation of an evidence based scheme, and the locating of records are two important contributions of the Scheme to "The Way Forward".

But I am getting ahead of myself, and would like to backtrack and talk abit about how the NSW Aboriginal Trust Fund Repayment Scheme came about.

Distinguished Aboriginal elders such as Aunty Marjorie Woodrow, Mr Les Ridgeway, Mrs Nancy Woods, former ATSIC Commissioner Mr Rick Griffiths, Link-Up (NSW), the NSW Aboriginal Legal Services and PIAC have all lobbied, raised awareness, talked about and pressed for redress of the stolen wages of Aboriginal people in New South Wales. It is impossible to name all the people who have worked towards recognition of the injustices (and I apologise to anyone I have omitted), but as a result of their efforts in March 2004, the then NSW Premier Bob Carr formally apologised to the Aboriginal people in NSW and made a commitment to a remedy. He said:

"when in the years up to 1969 Aboriginal people sought to gain access to their accounts they were rarely paid. After 1969 payments ceased completely. For those reasons I take this opportunity to formally apologise to the Aborigines affected."

"I want to assure the Aboriginal community that if we can establish any individual is owed money they will have it returned these funds were held in trust, and our predecessors failed that trust." 1

In May 2004, the Premier appointed the first Panel to report on the operation of a scheme to consult with Aboriginal people in NSW on the scope and nature of the issues associated with monies, and the design of an evidence based repayment scheme to repay these monies.

The First Panel members were Brian Gilligan (Chair), Terri Janke and Sam Jeffries.

The First Panel held consultation meetings across NSW in Wagga Wagga, Dubbo, Broken Hill, Mount Druitt, Moree, Tamworth, Picton, Lismore, Kempsey, Metford, Newcastle, Redfern, Dareton, Nowra and Walgett.

They reported to government that an Aboriginal Trust Fund Repayment Scheme should be established which should have the following features. It should:

  1. repay wages or other money paid into the Aboriginal Trust Funds and never repaid during the period 1900 to 1969;

  2. be evidence based; and

  3. report back to Government on its operation after three years.

One of the most important characteristics of the Scheme is that, in accordance with the recommendations of the First Panel, the Scheme is a repayment scheme. It's about repaying some of the money that was put in Trust Accounts by the Aborigines Protection Board and the Aborigines Welfare Board between 1900 and 1969, which was not repaid. It is evidence based. The claims process involves looking for evidence that money was paid into Trust Account and has not been previously repaid. It does not attempt to undertake reparation for the broader issues of stolen wages. It seeks to look to the evidence and repay what can be shown to be owed.

An important aspect of the Scheme is that, unlike the Queensland scheme, an application under the New South Wales Scheme does not prevent any future legal action. So claimants can make an application for repayment, be repaid and subsequently join any legal action for breach of duty or other compensatory claim that might be brought in the future.

Some of the concerns which were reported to the First Panel during its consultation phase, for which further remedies may be sought included:

  • the impact that separation has had on families;

  • unequal wages paid to Aboriginal workers;

  • the issue of lodging and food being given in lieu of wages and payment;

  • whether there is a debt owed to Aboriginal communities due to the collective impact of past practices and the loss of opportunities for individuals and communities;

  • land promised by employers instead of wages;

  • payment to Aboriginal trackers (used by the Police);

  • issues for returned service personnel, and,

  • people who may have been eligible for social security payments but were unaware of their entitlements.

Another significant aspect of the Aboriginal Trust Fund Repayment Scheme is that amounts repaid to claimants are not subject to income tax. Further, they are exempt from the income test applied to Centrelink payments.

So what monies can be claimed under the Scheme?

The Scheme is aimed at identifying monies paid into Trust Accounts of people whohad come under the control of the Aborigines Protection Board (later the AboriginesWelfare Board).

The main wages that were paid into the Trust Accounts were the wages that were earned by young men and women when they were sent out to work between the ages of 14 or 15 and 21. It is generally the money of young people who were taken away from their families as children under the cruel and misguided policies of the Aborigines Protection Board and later the Aborigines Welfare Board. The young people were made wards of the state and sent out to work as farm labourers, domestics and other jobs. The majority of their wages was supposed to be paid by the employer to the Board for deposit in the employee's Trust Account. The rest was to be paid directly to the young person as pocket money.

Once the young people turned 18 or in some cases 21, employers were supposed to pay the employee their entire weekly wage directly, rather than paying the Board. So, these monies were not put into the Trust Fund. Other monies which don't appear to have been deposited into the Trust Fund are monies of young people who were not removed from their families, but who might have been sent out to work on neighbouring pastoral stations, or to work on the reserve or mission by the Mission manager. In many cases, the details of the arrangements are not yet clear and no records have been located of those monies being paid into Trust Accounts.

Other monies that can be claimed under the ATFR Scheme include money which was deducted from some Aboriginal people's pensions, child endowment payments, inheritances and lump sum compensation payments.2

Another type of repayment under the Scheme is the repayment of some deductions made from Trust Accounts by the Board. As the young people were wards of the state, the Board was responsible for their food, clothing, lodging, dental and medical care. In some instances the bill for doctors and dentists were deducted from the Trust Account. Where the files show this kind of practice, the amounts that should not have been deducted are repaid.

So who can claim? Direct claimants can claim, that is, people whose money was placed in a trust accounts. Also the descendents of direct claimants can claim. The Scheme began working with direct claimants because of concerns about the urgency to process their claims due to the age of many claimants, and is now working with descendent claimants as well.

There are a number of stages to a claim for the repayment of the Trust Fund money.

  1. Registration

Claim form and registration with the Scheme. (Claimants are asked to notify the ATFRS office if they move or change their phone number.)

  1. Search of the Records

All the claims are sent to DAA and State Records, where the staff conduct a painstaking search of all available historical records. An important part of this process is that each claimant is provided with a copy of these records at no cost. Claimants then keep these records for any future uses.

  1. Determination of Claims

The Aboriginal Trust Fund Repayment Scheme Unit then reviews the results of the record search and checks to see if there is evidence of any money going into the Trust

Account, or being paid out. The Unit officers also check to see if the records show any deductions from the trust account which should not have been made. Most commonly these are doctors or dentists bills which should have been paid for by the Board. These amounts are added to and funds in the trust account. Once the amount is worked out from searching the files, it is calculated in today's dollar value using the indexation rate of the Officer of the Protective Commissioner.

Here are some examples of how the amounts translate into today's dollar value.

5 paid in 1940 is now worth $1301
5 paid in 1950 is now worth $932
5 paid in 1960 is now worth $587
$1 paid in 1969 is now worth $37

Once the amount is worked out, the Scheme makes an Interim Assessment and sends it to the claimant who can accept it or reject it.

If the person does not agree with the Interim Assessment and wants to provide further information, they can have their claim referred to the Panel.

The Panel is one part of the Aboriginal Trust Fund Repayment Scheme. It is made up of three people: Aden Ridgeway, myself and Sam Jefffries. Most of you would know Aden. Sam is an Aboriginal man from Brewarrina. He is Chairperson of Murdi Paaki Regional Assembly in Western NSW and a member of a number of boards including the Indigenous Land Corporation. I am from the Vincent family from Central Western New South Wales. My family are from Euabalong on the Lachlan River on the northern part of Wiradjuri country. In the 1980s I worked for Link-Up (NSW) Aboriginal Corporation, and more recently I trained as a lawyer and worked here in the Native Title Unit and I now work as a solicitor in the field of intellectual and cultural property law.

So, what is the Panel's role? The Panel has a number of functions under the Schemewhich are set out in the Guidelines for administration of the Aboriginal Trust FundRepayment Scheme. The Panel's role includes, but is not limited to:Provide advice on the operation of an evidence based repayment scheme.

  • Endorse or reject the ATFRS Unit's interim assessments for payment of claims where there is certainty, strong evidence or strong circumstantial evidence of money paid into Trust fund accounts and no evidence, or unreliable evidence that money was paid out.

  • Have discretion to review the facts in each case using all available evidence, including oral evidence.

  • Review decisions of the ATFRS Unit at the request of claimants.

  • Contribute to a review of the operations of the ATFR Scheme after 3 years including reporting to Government the extent to which unclaimed Trust Fund monies have been identified where there is no living claimant and recommend a means of addressing the issue, if it arises.

The Panel meets monthly and receives updates on all the claims and the progress of the claims process.

The Panel is able to receive additional information and hear oral evidence that direct and descendent claimants may want to give. In most cases where this has occurred, people have come along, often with a friend or relative to tell us about the circumstances of their life, and why their records may not show the whole picture of their lives and events at the time. In some but not all cases they have been accompanied by their legal representative who can speak on their behalf or assist them in telling their story. The Panel can consider their information as oral evidence and make a recommendation to the Minister based on the written evidence and the information given by the claimant.

The Panel recognises that it can be very difficult for people to come and talk about these memories so many years later. We try to make it as simple and straightforward as possible while allowing people to take their time and tell us about the issues that are relevant and important to them. We understand that there is probably no Aboriginal family who was not touched by the Board's policies of removal of Aboriginal children, or other sad events related to poverty, dislocation, injuries, accidents and the loss of loved ones. We don't underestimate that it can be a really painful for claimants and their descendents to go through the claims process.

When considering all the material given to the Panel, we are directed by The Guidelines which show the principles that can be considered during the process.

The are set out in section 11 and include:

  1. the time that has passed and difficulty claimants may have in proving their claims;

  2. lack of written records;

  3. the importance of oral evidence in the cultural traditions of Aboriginal people;

  4. the purpose of the Scheme - to restore the money held in trust;

  5. any available and reliable evidence that money was paid into the Trust Funds;

  6. any available and reliable evidence that money was paid out of the Trust Funds; and

  7. any other matter which the Director-General of the Premier's Department, the Panel or the Minister considers relevant. 3

Balanced against this flexibility is section 12 of the Guidelines which sets out the fundamental principles of the Scheme, that the must be certainty, strong evidence or strong circumstantial evidence that money was paid into the Trust Fund and no evidence, or no reliable evidence, that the full amount of the money was paid to the claimant or expended on their behalf in a way that was not allowed at the time.

There are two other aspects of the Scheme I would like to mention.

In recognition of the hardship and pain for some claimants, and descendants caused by reading their files and remembering the events of the past, access to Link-Up staff for assistance and counselling is provided by the Scheme. Secondly, many people have felt that the files present a biased or inaccurate view of events, people's character, relationship and circumstances. State Records have agreed that where people feel this is the case, they can write up their own recollections and this can be added to the file to, in one way, correct the record. The existing record is not altered, but claimants and their families can make a new entry on the file, placing their recollections on the record.

In summing up, I would like to draw out some of the differences between the NSW Scheme and the Queensland process.

In Queensland eligible claimants could get a capped lump sum plus an apology in Parliament. The NSW Scheme is different because it is evidence based, and payments are not capped. Also, unlike the NSW Scheme, in Queensland individuals have to give up and any legal rights they may have under the various 'protection' acts that were in place in Queensland between 1897 and 1984. One other difference is that the Queensland scheme did not allow descendents to claim, but NSW does.

There are still some serious issues that are yet to be resolved in relation to both the NSW Aboriginal Trust Fund Repayment Scheme and the wider issue of stolen wages in New South Wales. For instance, one issue of serious concern for the Panel, is that no records can be found for some registered claimants. But we are hopeful, that records found by Aboriginal staff of State Records in 2006, will provide more of the files necessary for these claimants. They are boxes from the old Chief Secretary's Department, and contain previously unknown sequences of records relating to the Aborigines Protection and Welfare Boards for the period 1938 to 1949. It is estimated that there are approximately 100,000 pages of material to archive, and approximately 75% of the material relates to the administration of the Aborigines Welfare Board. The material is currently being indexed.

Other issues which concern the Panel are the:

  1. The condition of the government's records,

  2. the location of and access to church records,

  3. the location of and access to records of wages for work undertaken on reserves by adults and children,

  4. the location of and access to records of work undertaken by adults and young people on pastoral stations,

  5. Compensation

  6. Pocket Money

The Panel and the Unit are commissioning research on these issues and will be including them in the report to the NSW government.

I would like to return to the question posed by this legal forum - the way forward. In addition to the repayment of monies to their rightful owners, I think that there is extremely valuable work being undertaken indexing records and providing them to claimants. There is much to be learned about the nature of the evidence, and the practices of the Boards. I think we can learn from this process, take the lessons onboard and continue to press for a fair system of full recognition and restitution.

Endnotes

1. NSW Legislative Assembly Hansard, 11 March 2004

2. These lump sum compensations payment are generally where a person's parent had a work place injury, or passed away from an accident and the insurance payout may have gone onto the Trust Fund

3. The Guidelines can be viewed in full at http://www.atfrs.nsw.gov.au/NR/rdonlyres/B938A198-9418 431B-910B-F2317CF67BD3/0/ATFGuidelinesFEB06.pdf

 

Human Rights and Equal Opportunity Commission Website: Legal Information
Last
updated 10 April, 2007.