Chapter 3 - Access tp Commonwealth entitlements
3.1
The Commonwealth Government also played a role in controlling the
finances of Indigenous people through its regulation of, access to, and payment
of social security payments. This part of the report outlines some of the
restrictions on various social security payments.
3.2
For the most part, Aboriginal people were prohibited from receiving
allowances, such as the child endowment payment, maternity allowance and
old-age pension, when they were first introduced. Subsequent amendments to
legislation meant that, although an Aboriginal person may have been entitled to
a payment, there was provision for the allowance to be paid 'indirectly' to a
third party, such as a mission or a government authority, on their behalf.
3.3
In some cases, evidence suggests that social security entitlements were
re-directed into trust accounts administered by state government Aboriginal
welfare authorities. In relation to other social security benefits, relevant
legislation consisted of provisions containing at least the legal potential to
intercept and divert Commonwealth pensions and benefits (whether by specific
reference to race or not).[1]
Child endowment
3.4
In 1941, the Commonwealth Government introduced the child endowment
payment, a non-means tested benefit of five shillings per week, paid directly
to mothers for each child under 16 years (excluding the first child).
3.5
The Child Endowment Act 1941 (Cth) (the Child Endowment Act) provided
that the child endowment payment would not be made to 'Aboriginal natives of Australia'
who were nomadic, or where the child was wholly or mainly dependent on the
Commonwealth or a state for support.[2]
Payment of child endowment to a third party was authorised where it was
'expedient' having regard to the 'age, infirmity, ill-health, insanity, or
improvidence or other reasonable case of disqualification...or any special
circumstances' of the applicant or the child.[3]
3.6
Amendments to the Child Endowment Act in 1942 provided that Aboriginal
missions that were an 'institution'[4]
could directly receive the child endowment payment of five shillings a week for
the children of an 'Aboriginal native of Australia' who were supervised or
assisted, although not mainly maintained, by the mission for six months or more
in any year.[5]
3.7
The Social Services Consolidation Act 1947 (Cth) (the 1947 Act) provided
for the child endowment payment where the child was not nomadic and not wholly
or mainly dependent on the Commonwealth or a state for support.[6]
The 1947 Act also provided that the child endowment payment could be paid
directly to an institution which supervised or assisted children, one or both
of whose parents were Aboriginal.[7]
3.8
Although there were some technical changes to the wording of the
legislation in 1959, being deemed 'nomadic' remained a bar to entitlement for
child endowment. The provision denying child endowment where the child was
wholly or mainly dependent on the Commonwealth or a state for support was also
maintained but both these restrictions were removed in 1966.[8]
3.9
The submission from the Indigenous Law Centre (ILC) provided the
committee with a comprehensive analysis of the main social security benefits
available from either the Commonwealth Government or the NSW Government up
until 1969. With respect to child endowment payments, and in the context of
NSW, the ILC provided evidence suggesting that the Commonwealth was willing to
divert child endowment payments away from Aboriginal parents towards state
Aboriginal welfare authorities, and to defer to the judgement of state authorities
in relation to this issue.[9]
3.10
The ILC noted that this continued 'well beyond the first few months of
Commonwealth administration in the early 1940s'; it provided evidence of
correspondence from 1956 (obtained from the National Archives of Australia)
showing that the Commonwealth at that time was still instructing staff to deal
with applications for child endowment from Aboriginal mothers in this way.[10]
By the mid- to late 1950s, the number of endowment payments diverted to the
Aboriginal Welfare Board had diminished, '(p)resumably because of a shift to
direct payment of endowees'.[11]
3.11
Dr Ros Kidd also provided a detailed analysis of Commonwealth
entitlements and the ways in which they were intercepted and diverted in
different states and territories. Dr Kidd suggested that Commonwealth child
endowment was diverted to revenue in Queensland, NSW, Western Australia and the
Northern Territory: 'in part by distributing only a small amount to endowees,
and also by cutting state outlays on rations and support'.[12]
Further:
Records for Queensland and Western Australia suggest
Commonwealth authorities knew of the misapplication of endowment and pensions
but did not introduce procedures to prevent misuse nor to ensure endowees and
pensioners received their entitlement as mandated under federal legislation.[13]
3.12
In relation to Queensland, Dr Kidd submitted that by 1942 the Queensland
Government had successfully applied to have its settlements defined as
'institutions' so it could receive bulk quarterly endowment payments on behalf
of settlement mothers. Dr Kidd also stated that the government 'profited by
immediately cutting grants to missions by the same amount as incoming endowment
revenue'.[14]
According to Dr Kidd, by early 1949, the government held over £7,000 ($239,600)[15]
in child endowment for mothers on the three government settlements and was
using it as general revenue:
Superintendents were directed to use the endowment for fruit,
milk and better clothing, but also for books and equipment for indoor and out
door games, which allegedly remained 'the property of the endowed child'. No
child or adult was ever informed of such possession. According to the deputy
director of Native Affairs endowment was used for radios and refrigerators for
dormitories, and he anticipated spending it on playgrounds, recreation halls,
parks and swimming pools; in 1951 Cabinet approved £2000 ($51,280) be used from
the child endowment of Cherbourg mothers for construction of a child welfare
clinic. In 1952 the director admitted reduced government grants
placed missions in such a 'desperate position' they were using child endowment
to feed and maintain inmates.[16]
3.13
Dr Kidd also noted that individual accounts operated for mothers not
living on reserves; these were controlled through head office or by rural
protectors. Knowledge of endowment balances and access to withdrawals from
accounts by individuals 'depended on the discretion of protectors'. Dr Kidd
also explained that:
By 1950 rural endowment accounts totalled almost £18,500 (almost
$564,000), with many individual balances over £100 ($3350). At no time did the
department implement any checks of the thumb-printing or signing of withdrawals
from Brisbane-based child endowment accounts. Contrary to 'the expressed policy
of the Commonwealth government' the Queensland government withheld bank
interest due on private endowment accounts.[17]
3.14
The Aboriginal Legal Service of Western Australia (ALSWA) provided the
committee with evidence pertinent to Western Australia, particularly in
relation to missions, stations and reserves in the Kimberley region:
For eligible Aboriginal recipients, these various Commonwealth
benefits could be paid to an approved authority or 'approved institution', and
in the case of child endowment it seemed that individuals such as station
managers could be appointed as trustees for the payments...(T)here is every
possibility that abuses were perpetrated by trustees. Aboriginal people at
Kimberley Downs station in 1968 complained of not receiving their age pension
or child endowment payments. On the Emanuel Bros stations in the Kimberley, it
was the practice to receive child endowment payments on behalf of their
Aboriginal employee's children 'on a group basis', presumably going into the
company account, before being distributed to Aboriginal families. The Emanuel Bros'
policy changed in 1968 so that child endowment payments were 'made direct'.
More research needs to be undertaken to assess what actually happened with
child endowment payments for Aboriginal people on pastoral stations, and to
what extent these Commonwealth entitlements were regarded, like age pension
payments for Aboriginal people, as a 'form of station subsidy' by some stations
warrantees.[18]
3.15
ALSWA noted that church-run missions and government institutions to
which children were forcibly removed were also recipients of child endowment
payments.[19]
Professor Anna Haebich noted that the payment of child endowment to
institutions caring for Aboriginal children 'greatly assisted the expansion of
such facilities during this period, often to the detriment of the children's
diet, schooling, and living conditions that should have been vastly improved by
this new source of funding.[20]
3.16
Dr Cameron Raynes gave the committee some insight into the situation in South
Australia with respect to child endowment entitlements. While acknowledging
that the South Australian Government 'had only a very small role in withholding
Commonwealth payments to Aboriginal people, they turned a blind eye when
certain religious organisations did the same'.[21]
For example, the Koonibba Mission, operated by the Lutherans on the west coast
of South Australia, 'was very pro-active in separating Aboriginal parents from
their child endowment money in the 1940s at least'.[22]
Dr Raynes presented evidence of the mission withholding such money from
residents, even after those residents left to live in nearby towns.[23]
Dr Raynes asserted that the South Australian Government knew that this was
occurring but did not put a stop to it.[24]
3.17
Dr Raynes provided examples of the South Australian Aborigines
Department using child endowment money as a means of 'controlling' the
behaviour of Aboriginal people:
...the missioner-in-charge of the Finnis Springs Mission suggested
to [Mr WR] Penhall [the head of the Aborigines Department] that he intervene in
the case of a young Aboriginal woman who refused to do domestic chores. He
suggested to Penhall that he withhold her £2 monthly payment. Penhall did as he
asked. He had no authority to do so.
In fact, in 1941, Penhall requested that officers-in-charge of
police stations throughout South Australia send all applications from
Aboriginal people for child endowment to him, so that he could vet them before
sending them to the Commonwealth Department of Social Security. Penhall made
arrangements with them for his department to 'receive payment on the endowee's
behalf' in certain cases.[25]
3.18
Dr Raynes was also critical of the United Aborigines Mission (UAM) in South
Australia:
[It]...had a very cavalier attitude towards Commonwealth
entitlements payable to the Aboriginal residents of their Finnis Springs,
Nepabunna, Swan Reach, Gerard and Oodnadatta Missions. At one point the UAM had
an arrangement with the Commonwealth which allowed them to collect the child
endowment money for all of the residents of these missions. The money 'raised'
by each mission was supposed to be spent at the mission in question, but
instead the money was pooled, and appears to have been spent as the UAM
hierarchy saw fit. The missionary at Oodnadatta in particular was very
concerned that none of the child endowment money raised on behalf of the
children at that mission was ever spent on them. The South Australian
government almost certainly knew that this was happening, but did nothing to
stop it.[26]
Maternity allowance
3.19
From 1912, a maternity allowance of five pounds was paid to mothers on
the birth of a child. Subsection 6(2) of the Maternity Allowance Act 1912
(Cth) specifically excluded the payment of the maternity allowance to 'women
who are Asiatics, Aboriginal natives of Australia, Papua or the Islands of the
Pacific'. The exclusion of 'Aboriginal natives' did not apply, on the basis of
Commonwealth legal advice, to 'half-castes and persons with less than half
aboriginal blood'; indeed, mothers living on state reserves and stations were
paid maternity allowances.[27]
3.20
The Maternity Allowance Act 1942 (Cth) (the 1942 Act) provided
that an Aboriginal woman could receive the maternity allowance where she was:
- exempt from state or territory legislation for the control of
Aboriginal persons; or
- in the absence of such state and territory legislation, by reason
of the woman's character, standard of intelligence and development, the
prohibition on receiving the maternity allowance should not apply.[28]
3.21
The maternity allowance in 1942 was four pounds, 10 shillings for the
first child; five pounds where there were one or two other children; and seven
pounds, 10 shillings where there were three or more other children.[29]
Where an Aboriginal person was entitled to receive the maternity allowance,
section 4 of the 1942 Act provided that payment could be made to someone else
for the benefit of the person to whom the allowance was payable.
3.22
The 1947 Act had similar requirements to the 1942 Act, namely that an
Aboriginal woman could only receive the maternity allowance if she was either
exempt from state or territory legislation for the control of Aboriginal
people; or if the Director-General of the Department of Social Services was
satisfied that the allowance should be granted.[30]
The 1947 Act also provided that 'where desirable to do so' the maternity
allowance for a woman residing on an Aboriginal reserve, station or settlement,
shall be made to an authority of a state or territory controlling Aboriginal
affairs, or to some other authority considered suitable for the purpose.[31]
3.23
Further restrictions on Aboriginal women receiving the maternity
allowance were removed in 1960, however those deemed 'nomadic or primitive'
were still excluded. The capacity for indirect payment was also retained in
1960. The last discriminatory exclusion – the reference to 'nomadic or
primitive' mothers – was repealed in 1966.[32]
3.24
Dr Ros Kidd submitted that, from at least 1928, it was department policy
in Queensland to take 80 per cent of maternity allowances from mothers living
in settlement dormitories and 50 per cent from those in settlement camps. She
also asserted that mothers who received 'limited provisions for their new
babies were told it was a gift from the government; they were not told it was
an entitlement'.[33]
3.25
Dr Kidd also informed the committee that, after 1942:
State governments could now also claim the allowance for mothers
controlled on missions and reserves, receiving bulk payments for these 'institutions'
to be distributed at their discretion. The Queensland government was warned in
1943 that no ministerial authority could be found authorising the confiscation
of most of the allowance to meet state liabilities to maintain mothers confined
on reserves; it continued the practice regardless. Investigation in other
states and the territory will likely uncover similar practices.[34]
3.26
Dr Kidd also noted evidence showing both the Queensland and NSW Governments
consistently lobbied for pensions and the maternity allowance to be paid to all
Aboriginal people. However, in 1953, Federal Treasury claimed 'lack of finance'
for this anomaly. After 1959 all Aboriginal mothers were due the payment,
although the allowance was repealed nationally between 1978 and 1996.[35]
3.27
Dr Cameron Raynes submitted that there was a standing arrangement in the
1940s, and later, between the Aborigines Department and the major hospitals in South
Australia, such that Aboriginal women who received the maternity allowance
were required to pay some of that money directly to the hospitals in which
their babies were delivered.[36]
Other benefits and pensions
3.28
In a general sense, Dr Kidd submitted that pensions were intercepted for
Aboriginal people under state control in Queensland, the Northern Territory, Western
Australia and New South Wales and that these governments reduced state spending
to reflect the Commonwealth income. According to Dr Kidd, the Queensland
Government declared its intention to 'divert' pensions to revenue when it
learned in 1959 that criteria would be widened to include many Aboriginal
people who had previously been denied pensions.[37]
Commonwealth pensions became more readily available to Aboriginal persons in
1960.
3.29
Dr Kidd also advised that:
Governments knew intercepted Commonwealth endowment and pensions
were used as revenue by missions (Queensland, Northern Territory, Western
Australia) and by pastoral stations (Northern Territory, Western Australia)
thus replacing rather than augmenting current outlays.[38]
Invalid and old-age pensions
3.30
The Invalid and Old Age Pension Act 1908 (Cth) specifically
excluded 'Aboriginal natives of Australia' from receiving the old-age or
invalid pensions.[39]
However, Aboriginal people who were living 'under civilised conditions' were
eligible for the pensions.[40]
Later, the 1947 Act provided that Aboriginal people could receive the old-age
pension or invalid pension in two circumstances:
- if they were exempt from state or territory legislation for the
control of Aboriginal people; or
- where state or territory legislation did not provide for an
exempt status, the Director-General of the Department was satisfied that 'by
reason of the character and the standard of intelligence and social development
of the native, it is desirable that a pension should be granted to him'.[41]
3.31
Even after the granting of Commonwealth pensions to Aboriginal people in
1960, these pensions often did not end up in the hands of the rightful
recipients. In relation to Western Australia, Mr Craig Muller told the
committee that:
Most recipients lived part of their time near missions, and the
pensions were paid to the missions, which then had the discretion in how much
was passed on to the intended recipients. I am not certain whether the
individual Indigenous people ever provided permission for their moneys to be
withheld.
As another example, at Cundeelee mission again, the mission kept
two-thirds of the 1960 pension rate—in other words, 65 of the 100 shillings.
The initial legislative change saw two dozen of Cundeelee mission's inmates
granted age pensions. When the mission was inspected 15 months after the
pensions were granted, it was noted there had been an initial issue of tents to
the pensioners but they had received no further benefits in the 15 months. In
addition, the pensions had continued to be paid to the missions during the
sometimes extended periods when the pensioners were away on ceremonial and
other business. That is particularly relevant to the goldfields missions, which
are on the edge of the settled frontier.[42]
3.32
The ALSWA also provided evidence in relation to pensions being withheld
in Western Australia:
[Archival] information...suggests that inadequate record keeping
by station warrantees in relation to their administration of pensions was the
norm rather than the exception. The extent of warrantees' withholding of
pension payments intended for Aboriginal people in Western Australia remains to
be fully investigated; it is clear from the documentary records that payments
were withheld.[43]
3.33
The ALSWA posed some pertinent questions:
How and why did the idea that Aboriginal people should only
receive 'pocket money' amounts of cash form the basis of Commonwealth and State
government policy in relation to the administration of Commonwealth benefits?
This policy did not apply to other Australians, so why was the policy developed
for Aboriginal recipients who became eligible to apply for pensions in 1960?[44]
3.34
Furthermore, evidence was presented to the committee that in 1959 the
Commonwealth Government instructed the Western Australian Department of Native
Welfare to divert pension and maternity payments from beneficiaries to missions
and station managers.[45]
3.35
The ALSWA argued further that the system of administration of pension
payments was fundamentally flawed:
It seems extraordinary that the Federal government, with the
endorsement of the Western Australian Native Welfare Department, would put in
place a system of administration of pension payments which so clearly was open
to abuse. Kimberley pastoral station owners, who ten years previously had
objected to paying Aboriginal workers any money at all, were expected by the
Commonwealth to spend the 80% to 90% of the value of the pension payments that
was banked in the station account on 'accommodation and general welfare' of
elderly Aboriginal people. Past experience implied that this was not likely to
happen, and subsequent investigations showed that it rarely did.[46]
Widows' pension
3.36
Similarly, the Widows' Pensions Act 1942 (Cth) provided for the
payment of the widows pension to Aboriginal women who: were exempt from the
operation of state or territory legislation for the control of Aboriginal persons
and held an exemption certificate under state legislation; or who could demonstrate
'character, standard and intelligence and social development'.[47]
3.37
The disqualification criteria were narrowed further to those who were
'nomadic or primitive' from February 1960; and the disqualification of
Aboriginal women was eliminated altogether in 1966.[48]
From the outset, the legislation authorised the payment of widows' pensions to
another person on a widow's behalf, due to infirmity or other special
circumstances. Between 1942 and 1960, the legislation also specifically
authorised indirect payment of the pensions of Aboriginal widows to state
Aboriginal welfare authorities.[49]
Unemployment and sickness benefits
3.38
The Commonwealth scheme for unemployment and sickness benefits came into
operation in July 1945. At the outset, under the Unemployment and Sickness
Benefits Act 1944 (Cth), an 'aboriginal native of Australia' was
disqualified unless the Department was satisfied that by reason of their
'character, standard of intelligence and development' it was reasonable that
they receive the benefit. The provision disqualifying 'aboriginal natives of Australia'
was repealed in 1960 but those deemed 'nomadic or primitive' remained
ineligible until 1966.[50]
3.39
There was no statutory provision (general or specific) for indirect
payments of the unemployment or sickness benefit to a third party such as a state
Aboriginal welfare authority.[51]
Further:
A discretionary payment, known as the special benefit, was
available where the Department was satisfied that someone, who did not qualify
for sickness or unemployment benefits or a pension, was unable to earn 'a
sufficient livelihood for himself and his dependants (if any)' for any reason
including 'age, physical or mental disability or domestic circumstances'. There
was nothing in the Act to exclude Aboriginal people from the special benefit.[52]
War and service pensions
3.40
Indigenous people served in every major war in which Australia
participated in the twentieth century.[53]
3.41
Aborigines were entitled to war and service pensions and there was never
a provision in the repatriation legislation for indirect payments (either
generally, or specific to Aboriginal recipients). However, the ILC informed
that committee that:
William Ferguson, President of the Aborigines Progressive
Association alleged in correspondence in 1942 that the Board 'also takes widows
Pensions and Invalid pensions. Also Soldiers pensions, and soldiers wives pay
and dole it out as they think fit'.[54]
3.42
Further:
In October 2004 the Panel investigating the design of a
repayment scheme for Aboriginal people adversely affected by government
administration of Board trust accounts reported that, as a result of its
inquiries, it is possible that some 'returned soldiers may have had pension
entitlements paid into the Trust Fund, although this was clearly contrary to
the Aboriginal Welfare Board's written policy'.[55]
3.43
The committee also received evidence suggesting that, even though
Aboriginal returned soldiers received pensions, they were not paid the same
amounts as non-Aboriginal soldiers. Mrs Beryl Gambrill from the Cherbourg
Historical Precinct Group stated that:
The returned soldiers from the First World War were not paid the
same as the European soldiers. They received a pittance in wages. It was not
even half of what the white soldiers got. That money is still owing to them.
Most of them have passed on now. My father was one of them.[56]
3.44
Mrs Lesley Williams made a similar point:
I would also like to mention the Aboriginal soldiers who fought
in the First World War, the Second World War, the Korean War and the Vietnam
War. They were paid less than the white soldiers and, when they returned from
the war and the government was cutting up blocks of land for settlements—for
the ballot—Aboriginal people did not have access to those blocks of land.
Therefore, without having land to farm, there was nothing they could hand over
to their descendants.[57]
3.45
Wampan Wages (Victorian Stolen Wages Working Group) noted that returned
servicemen and women 'generally received a dowry for their services'; however,
'there is anecdotal evidence that dowries were never paid to many Indigenous
returned service men and women from Victoria'.[58]
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