Chapter 7 - Repayment of monies by Governments
What if your wages got stolen? Honestly, wouldn't you like to
have your wages back? Honestly. I think it should be owed to the ones who were
slave labour. We got up and worked from dawn to dusk. I had to get up and milk
the cow. I did not know how the hell to milk a cow. I got there and I had to
chop wood. I was only young; I was only a kid. So of course I want my money and
the rest of them want their money. It belongs to them. Everything else has been
taken off them. Why can't they have something back? Australia should give
something back to us Aboriginal people. We lost everything – family,
everything. You cannot go stealing our lousy little sixpence. We have got to
have money back. You have got to give something back after all this country did
to the Aboriginal people. You cannot keep stealing off us.
In 1999 the Queensland Government introduced a process referred to as
the Underpayment of Award Wages Process (UAWP) to make reparations for the
underpayment of award wages to Indigenous workers who had been employed by the
government on Aboriginal reserves for the period 31 October 1975 to 29 October 1986.
In 2002, the Queensland Government introduced the Indigenous Wages and
Savings Reparations Offer (the reparations offer) for the reparation of money
to Indigenous workers who had their wages and savings controlled under
protection Acts. The NSW Government also introduced the Aboriginal Trust Fund
Repayment Scheme (ATFR Scheme) to address the repayment of monies held in trust
funds by the NSW Government. Evidence suggests that the ATFR Scheme for the
repayment of monies is generally better regarded than the Queensland
This chapter provides a brief overview of the UAWP, which was used as a
model for Queensland's reparations offer. An outline is then provided of both
the Queensland reparations offer and the NSW repayment scheme. Evidence which
identified problems and criticisms of these schemes is also discussed.
The first scheme introduced by the Queensland Government was the UAWP
scheme which provided a one-off payment of $7000 to workers employed on
Aboriginal reserves. The second scheme was the reparations offer which provided
for payments of $2000 or $4000, depending on the date of birth of the
The Underpayment of Award Wages
The Queensland Government announced the UAWP in direct response to a
decision of the Human Rights and Equal Opportunity Commission (HREOC): the so-called
Palm Island Wages case.
In 1985 and 1986, workers from Palm Island complained to the Human
Rights Commission (HREOC's predecessor) claiming that, in the course of their
employment on the Queensland Government reserve on Palm Island, they had been
discriminated against because they were Aboriginal people, and, in particular,
that they had been paid wages at a rate less than they would have been paid if
they were not Aboriginal.
The matter took 10 years to run its full course and, ultimately, HREOC
determined that six of the workers had been discriminated against in the course
of their employment on the basis of race.
HREOC rejected the Queensland Government's claims that the workers were not
'employees' and that it had been acting in compliance with Queensland law at
HREOC heard evidence that each worker had suffered a loss of between
$8,573.66 and $20,982.97. Despite this, each of the successful workers was
awarded $7,000 in compensation.
The UAWP was announced by the Queensland Government in May 1999. The
process included a single payment of $7,000 which was paid to Aboriginal and
Torres Strait Islander people who were employed by the Queensland Government on
Aboriginal reserves between 31 October 1975 (the commencement of the Racial
Discrimination Act 1975 (Cth)) and 29 October 1986 (the date from which Award
wages were paid to all workers).
Applications for the UAWP closed in 31 January 2003. The UAWP offer was open to employees of government reserves who were alive on 31 May 1999 (the date the process was announced) and, therefore, excluded Aboriginal and
Torres Strait Islander people who had died prior to this date. Claimants who
accepted the $7,000 payment were required to sign a deed waiving their rights
to recover further compensation.
However, the Queensland Government stated that the acceptance of the payment in
the UAWP offer does not prevent a person accepting a payment under the
Queensland Government's reparations offer, because the two offers relate to
The Queensland Government has paid out $40 million to workers under the UAWP.
One criticism that has been levelled at the UAWP is that it only applied
to workers on government-run reserves, and not to people employed by church
organisations on the mission communities.
The committee notes the issue of underpayment of award wages for workers on
church missions has been the subject of litigation. In one matter, Baird v
State of Queensland (the Baird case), the Federal Court accepted
that the applicants had proved economic loss, but ruled that loss was not a
result of discrimination by the Queensland Government contrary to the Racial
That decision was successfully appealed, with the Full Federal Court ruling
that the calculation and payment of grants by the Queensland Government to the
missions, based on the payment of below-award wages to Aboriginal workers on
the missions, was a breach of the Racial Discrimination Act. The Full Federal
Court is yet to make final orders in relation to the case.
In a second matter, a permanent stay has been granted over the bulk of the
proceedings insofar as they relate to the employment of the applicants.
Indigenous Wages and Savings
In May 2002, the Queensland Government made a 'without prejudice offer
of a one-off payment' to Indigenous workers who were able to demonstrate
governmental control of their wages and savings under the Queensland Protection
In the Queensland Parliament on 16 May 2002, Premier Peter Beattie stated:
'...this offer is made in the spirit of reconciliation, as a demonstration of
our desire to heal the past, so we can move on.'
The Queensland Government, in its submission to the inquiry, set out the
components of the reparations offer:
- $55.4 million
for payments to individuals with any unspent balance to be applied to the
Aborigines Welfare Fund and a proportion allocated for Torres Strait Islanders;
- a written apology from the Government to all living persons
who had their wages and savings controlled under an Act and who were eligible
to make a claim for compensation;
- a statement in Parliament to publicly recognise past
injustices on the basis of race; and
- a protocol for commencing official Government business with
an acknowledgement of the traditional owners of the land.
The Queensland Government provided the following eligibility criteria
for individuals claiming the reparations offer. In order to be eligible,
claimants had to:
- be alive on 9 May 2002, which was the date of the offer;
- be born on or before 31 December 1956; and
- have had their wages or savings controlled under a 'protection
Depending on the claimant's date of birth, the following amounts were to
be paid to eligible claimants under the reparations offer:
- $4,000, for those born before 31 December 1951; and
- $2,000, for those born between 1 January 1952 and 31 December 1956.
The Queensland Government provided the following explanation for the
structure of the reparations offer:
The cut of date of 1956 was based on the fact that people born
between 1957 and 1965 would have been 9 years old or younger when the 1939 Act
was repealed in 1965 and 15 years old or younger in 1972 when the 1965 Act was
repealed. They were therefore unlikely to have had their wages and/or savings
Depending on their date of birth, eligible claimants were paid
either $4,000 or $2,000. The differing amounts reflected the assumption that
(a) people born before 31 December 1951 were subject to the 1897 and/or the
1939 Acts and their wages/savings were subject to intensive controls and (b)
those born between 1952 and 1956 were more likely to have worked and had their
savings controlled under the 1965 Act. This Act removed some of the controls,
such as compulsory contributions to the Aborigines Welfare Fund, included in
the earlier legislation.
If a claimant was determined to be eligible for the reparations offer,
and chose to accept the offer, the claimant was required to sign a 'Deed of
Agreement', which included the claimant indemnifying the Queensland Government
...all actions, suits, claims, costs and demands which the
Claimant, and all other persons claiming by or through or under the Claimant
may now have or could have, whether pursuant to common law or under the
Protection Acts, against the State, its servants or agents.
The committee was advised that claimants who were assessed as eligible
were provided with independent legal advice prior to accepting the reparations
offer. Claimants had a 24-hour 'cooling off' period once they received their
legal advice to decide if they wanted to accept the offer.
The reparations offer was approved by State Cabinet in November 2002
following a period of consultation which was carried out by the Queensland
Aboriginal and Islander Legal Services Secretariat (QAILSS). Claims were able
to be lodged from 1 February 2003
and the offer closed on 31 January 2006.
The Queensland Government provided the following statistics of claims
and assessments made under the reparations offer:
- 8,761 claims have been received;
- up until 9 October 2006, 8,752 claims had been assessed;
- of those 8,752 claims, which had been assessed, 63 per cent were
deemed eligible; and
- 5,413 claims have been paid totalling $19.11 million (of the
$55.4 million set aside for the scheme).
The Queensland Government's reparation offer received criticism from
witnesses and submitters during the inquiry in the following areas:
- the inadequacy of the reparations offer;
- the requirement for indemnity and provision of legal advice;
- the reliance on documentary evidence; and
- the distribution of the remainder of the reparation offer monies
and Welfare Fund amounts.
Inadequacy of the reparations offer
The most widespread criticism of the Queensland Government's reparations
offer is that it was too far short of the real value of appropriated wages and
savings to be acceptable. The failure to offer reparations to the beneficiaries
of deceased workers is another area in which the offer has been criticised.
A number of witnesses who appeared before the committee described the
offer as 'insulting'.
One witness called it 'laughable'.
Mr Victor Hart of the Queensland Stolen Wages Working Group saw the offer as
a reflection of the Queensland Government's general attitude towards Indigenous
I think it is pretty obvious that the general attitude behind
the government’s offer of $2,000 implies that they take for granted the legal
and constitutional rights of Indigenous people. From this you can apparently
make a clear assertion that they do not think we are as equal as other people.
In presenting the offer to the Queensland Parliament, Premier Beattie
acknowledged that there were estimates that the total amount owed to Indigenous
people in Queensland may be as much a $500 million.
Despite this, Premier Beattie pre-empted criticism of the extent of the offer
on the basis that it was preferable – from the perspective of both the Queensland
Government and claimants – to a protracted legal battle:
Canberra has spent more than $12 million on just one case alone
– the Gunner and Cubillo case – which went all the way to the High Court and
helped no-one but the lawyers. If we resisted every one of these cases, this
could cost Queenslanders $100 million or more in legal expenses. That is a
rough guess. It is a lot of money. Settling this away from the courts will save
the taxpayers of Queensland millions. There is a win for indigenous people,
particularly old indigenous people or elderly indigenous people approaching the
end of their lives. There is a win for taxpayers, because it will cost them
less, and there is a win for reconciliation and decency.
Some witnesses mentioned their anger that, in announcing the reparations
offer, Premier Beattie had referred to the funds as 'taxpayers' money':
All I want is justice and what is owed to us. And it is not
taxpayers' money; these are wages that every working Australian earns each
Witnesses commented that their understanding was that the reparations
offer was based on what the Queensland Government could 'afford to pay', and not
what it owed to claimants.
In November 2002, Dr William Jonas, the then Aboriginal and Torres Strait
Islander Social Justice Commissioner highlighted this inadequacy in the
reparations offer, and criticised the Queensland Government's unwillingness to
increase reparations by staggering payments over successive budgets:
...it was not an appropriate figure for the inter-generational
harm and poverty inflicted on Indigenous people through the control exercised
by the government. It is clearly an arbitrary figure based on what can be
afforded by Queensland Treasury in one hit. There does not appear to have been
due consideration of proposals by Indigenous groups for staggering payments
over several budgets. There is no justification for how the figure of $55.4m
came to replace the previously cost [sic] of $180m (estimated by the Queensland
Aboriginal and Islander Legal Service) to adequately address the harm caused.
Dr Ros Kidd disagreed with the suggestion that the reparations offer
could be considered as recognition by the Queensland Government that it
accepted some responsibility for the injustices suffered by Indigenous workers.
In Dr Kidd's view, this could only be the case if the Queensland Government had
made an 'honest and equitable' attempt at reparations.
However, when compared with other initiatives of the Queensland Government, Dr Kidd
did not believe that the offer demonstrated the Queensland Government accepting
...to say to a person over 50, 'We value your working life at $4,000,'
is an absolute insult. I should say that in the same year...the Beattie
government offered $50,000 to each of 200 underperforming teachers so they
could retrain. It gives you an idea of the level of their sorrow.
Given the considerable anger that was expressed by claimants and other
witnesses at the public hearings in relation to the amount set aside for the
offer, the committee was interested to learn how the Queensland Government had
arrived at the overall figure of $55.6 million for the reparations offer. In an
answer to a question on notice, the Queensland Government informed the
The amount of $55.6 million was determined by Government. This
monetary amount is one part of a broader reparation package which also includes
a written apology from the Government, a statement in Parliament to publicly
recognise past injustices on the basis of race, and a protocol for commencing
official Government business with an acknowledgement of the traditional owners
of the land.
During the public hearing in Brisbane, the Queensland Government was
questioned on the adequacy of the reparations offer. The justification given
...the reparations offer was not by way of compensation. It was a
gesture of reparations in a spirit of reconciliation. It acknowledged the scale
of the injustices done to people whose wages and savings were controlled under
the legislation; it was not by way of compensation.
The Queensland Government's failure to offer reparations to the
descendants of deceased workers was another aspect of the offer that witnesses
and submitters to the inquiry criticised as being inadequate.
Mr Peter Bird expressed to the committee the frustration of his family
of being denied the wages of his mother-in-law who had worked at Cherbourg for
more than 30 years:
My wife's mother worked for Cherbourg for some 30 or 40 years,
looking after the dormitory cooks – our cook, in fact. Then she ended up being
a cook at the Cherbourg Hospital. We could not get the money that should be
hers either. She died in the early nineties. She was entitled to that $4,000.
We have tried and tried and we have pleaded with every known source of
Ms Pamela Meredith explained the experience of her grand-uncle, whose
wages were withheld from him for his entire life:
The wages of my grandfather’s brother (my grand-uncle) James Meredith
continued to be withheld for years after he was taken from Cherbourg mission
and adopted to a white family. He never married and worked until he was quite
old, meaning the government collected a life-times wages belonging to this
gentleman – he was practically a slave for them! His wages should rightfully be
returned and re-paid to his estate.
Mr Marshall Saunders pointed out that the NSW scheme (discussed below)
makes provisions for the payment of money to the estates of deceased workers:
My mother died in 1966, and as with many other women she was
sent out from Cherbourg (Q) to work on 6 different work sites. She died not
knowing what happened to her wages...NSW has paid for deceased people, why can't
The Queensland Government provided evidence which explained its reasons
for not opening the reparations offer to the families of deceased workers:
The Government was aware from its experience in the [UAWP] that
the majority of Aboriginal and Torres Strait Islander people die intestate and
that attempts to distribute estates in accordance with succession requirements
are administratively complex and likely to result in outcomes that are
considered inequitable by some or all of he parties concerned. These
difficulties would have been magnified if descendents of long-deceased persons
were entitled to claim on behalf of these persons. Having considered these
matters, a decision was taken to focus on those persons who were alive at the
time of the offer.
Inadequate consultation with the
The Queensland Government has been criticised for the way in which it
consulted with the Indigenous community over the reparations offer. Much of the
criticism focussed on the manner in which the offer was initially conveyed to
representatives of the Indigenous community. The consultation process which was
conducted by QAILSS in 2002 was also criticised.
To appreciate the frustrations of the Indigenous community in respect to
the inadequacy of consultations undertaken on the reparations offer, it is
important to understand the events which preceded the offer, how the offer was
initially made and communicated, and the context in which the QAILSS'
For a number of years before the reparations offer both claimants and
the Queensland Government were preparing for litigation. At the time the
reparations offer was announced, the Queensland Government had spent at least
$1.5 million researching the history of Aboriginal wages and savings in
preparation for legal challenges. Further, the Aboriginal and Torres Strait
Islander Commission (ATSIC) had provided at least $800,000 in funding to QAILSS
for research in preparation for litigation. QAILSS had also collected testimony
and identified approximately 4000 potential litigants wanting to recover lost
In preparation for negotiating with the Queensland Government in
relation to the Aboriginal Welfare Fund and associated savings accounts and
issues, QAILSS prepared a statement of demand on behalf of claimants. The
statement of demand set out a table of reparations to individual claimants for
injustices imposed under the protection regime. The proposed reparations were
based on a sliding scale, depending on how long a person worked under the
protection Acts. At one end, a person who worked 5 years or less would receive
$25,000 and, at the other end, a person who worked more than 20 years would
receive $45,000. The total amount of the proposal was $180 million to be paid
over a period of three budgets.
It appears that this document was provided to the Queensland Government
in February 2001 by the National Aboriginal and Torres Strait Islander Legal
Services Secretariat (NAILSS) on behalf of QAILSS.
The committee did not receive any evidence during the inquiry to determine the
extent of consideration given to the proposal by the Queensland Government.
On 9 May 2002, Premier Beattie and the then Minister for Aboriginal and
Torres Strait Islander Policy, Judy Spence, met with representatives from
QAILSS, the State Government Indigenous Advisory Board, and the Aboriginal
Evidence provided by witnesses suggests that some attendees at the meeting were
confident that the Queensland Government would make an offer along the lines of
the proposal that QAILSS had put forward. Mrs Ruth Hegarty advised of a meeting
she attended with QAILSS representatives, two days before the meeting with Premier
Beattie, where it was agreed that if the Queensland Government did not make
the offer that QAILSS proposed, then the Indigenous representatives would leave
However, as Mrs Hegarty explained, at the meeting with the Queensland
Government, Premier Beattie made the offer of $55.6 million and said that
claimants could 'either take it or leave it'. The Mayor of Cherbourg Aboriginal
Community, Mr Kenneth Bone, who was also present at the meeting, supported Mrs Hegarty's
recollection of the meeting, commenting that Premier Beattie said 'This is a
one and only offer'.
The Queensland Government explained that, following the offer of the
$55.6 million for reparations, it was subsequently agreed that $200,000 from
the original amount would be given to QAILSS to undertake community
consultation, reducing the final offer to $55.4 million.
HREOC provided the committee with a copy of QAILSS' report to the
Queensland Government on the consultation (Report on the QAILSS Consultations).
The QAILSS consultation process took place between 13 June 2002 and 9 August 2002 and comprised five consultation teams who visited a total of 115 locations
across Queensland. The Report on the QAILSS Consultations also contained copies
of documents provided to those who attended the consultations, including: a
sheet advising claimants of what would happen if they accepted or rejected the
offer; and a copy of the letter of acceptance/rejection to be signed and
witnessed by claimants.
The Queensland Government informed the committee that the QAILSS
consultation found that, from 5,501 responses, there was an acceptance rate of
94% for the reparations offer.
The committee was somewhat surprised at the high rate of acceptance,
particularly given the obvious dissatisfaction expressed about the offer in the
QAILSS report on the consultation:
Most of the individuals and communities expressed concern at the
level of the Government offer ($4,000 and $2,000) with the concerns ranging
from dismay through to outright anger.
A number of individuals and communities referred to the
Reparations offer as a 'pittance' or a 'lousy pittance'...
The Report on the QAILSS Consultations also contained a 'selection of
representative comments' from Indigenous people who were consulted which
explained their feelings on the offer:
I think it very rude of government (sic) to offer that $4,000. I
lost my teenage years and worked like a dog, and I got whipped and everything
all over. I worked so hard, it was no holiday. This is a rip off, you go back
and tell them what I said. Many of these people have died now. $4,000 is not
good enough. Our women were raped by white men and we were all ripped off.
This is criminal, discriminating. This offer is blackmail, they
don't care. It's not enough. It is bloody sickening, discriminating. We're
sitting on our land and it is controlled by government, they think it is
This is the closure? You can't go anywhere with this, and we are
forced to take it! 
The conclusions to the Report on the QAILSS Consultations provided the
following explanation of the incongruity between the concerns about the
adequacy of the offer and the high level of acceptance of the offer:
Whilst the support is extremely high it is not indicative of the
view that it is considered that the sums offered to persons falling in Category
A ($4,000) and Category B ($2,000) are adequate.
To this end, a number of witnesses provided explanations as to why the
acceptance rate of the offer in the consultation period was so high.
Ms Christine Howes, the Queensland President of Australians for Native
Title and Reconciliation (ANTaR), believed that in responding to the QAILSS
survey in the course of the consultation, people believed they were signing
legal documentation in relation to the offer, and if they ticked 'no' on the
survey, then it would be recorded that they had rejected the offer:
The documents that people were presented with at those meetings
looked legal and felt legal.
The [acceptance/rejection letter] that people were asked to sign
looked like a legal document; to the extent that some people we spoke to...had
the expectation that the cheque was in the mail an`d that they should receive
it by Christmas. They thought that they were getting $4,000 and that they
should have it by Christmas.
[If they had ticked 'no' in the survey, it was their
understanding they would have been rejecting the offer]...and it would have been
on some kind of record somewhere they that were saying no. If they had known
that it was a survey, if it was explained to them that it was a survey right
from the beginning, then I am not convinced that they would have got 94 per
cent out of it.
Mr Darren Dick, Director of the Aboriginal and Torres Strait Islander
Social Justice Unit of the Human Rights and Equal Opportunity Commission
(HREOC), suggested that those who were not in favour of the offer simply did
not participate in the consultation process:
QAILSS ... turned up to communities with ... a one-page flyer. It
was not what you would call particularly independent legal advice: telling
people that if they say no to this offer then they could get stuck in the
courts like Mabo for the next 10 years and they may not end up with anything.
It was all sorts of things like this which were not particularly objective in
nature. They then held community meetings in which they would ask people to
sign on to an offer – 'Do you want this money?' – and you would have to tick
'yes' or 'no'.
A lot of the feedback that we got from people was, 'They think
we are going to say no so then it is on record somewhere that we do not want
the compensation.' I think at the end of the day, the money has been dangled in
front of people and they may well ultimately choose to take it. I think that
accounts for the very high rate that the Queensland government pays because
those people who want to accept the offer were willing to tick the form. Those
who were not willing to sign it just did not show up. The records that QAILSS
had in their report would show that, for example, there might be a community
with 1,000 people in it and there would be 50 who would turn up to the meeting.
In respect of these criticisms, two paragraphs in the Report on the
QAILSS Consultations are particularly relevant:
Persons and communities were advised that they were at all times
free to either return the forms duly executed to the consultation team before it
departed the locality or they could if they so wished keep the forms and
discuss them with their families or communities or their own legal advisers
after the consultation teams had departed without any pressure or duress.
Great care was taken by the consultation teams to point out that
the Letters of Acceptance or Rejection were not in themselves legally binding
documents in any way and that it was only the actual Queensland Government
document which may be subsequently submitted for signature which will be
Mr Victor Hart of the Queensland Stolen Wages Working Group expressed
other concerns about the manner in which the QAILSS consultation was conducted:
Over the last four years, I have raised concerns and there have
been concerns raised to the [Queensland Stolen Wages Working Group] about the
process of consultation undertaken by QAILSS back in 2002 on behalf of the Beattie
government. Over a three-day period, they visited something like 16 communities
in Cape York and consulted with, apparently, 95 per cent of claimants. To fly
around and meet at least 3,000 or 4,000 people in that time is a phenomenal
piece of research.
Mr Tony Woodyatt, Co-ordinator of QPILCH, also noted that by failing to
undertake a 'proper' consultation, the Queensland Government has ended up with
a situation where people are 'justifiably' unhappy with the outcome.
Mr Bob Weatherall stated his concern that the QAILSS representatives who
conducted the consultation were placed in the situation of having to sell the
On this point, the committee notes that the Report on the QAILSS Consultations
Consultations teams were clearly instructed that they were not
agents or servants of the Queensland Government and were not authorised at any time
to make any promise or to offer any interpretation or to communicate any
decision as being made by the Queensland Government at any time whatsoever.
The indemnity and the provision of
independent legal advice
Further elements of the reparations offer that were criticised were the
extent of the indemnity that claimants were required to sign on accepting the
offer, and the manner in which the independent legal advice was provided to
claimants prior to them signing the Deed of Agreement (see paragraph 7.17).
In advice to potential claimants, the Queensland Government said of the
If you decide to accept the payment you must also sign a Deed of
Agreement saying you will not ever go to the courts about the same claim. If
you decide to sign this Deed, then you can receive your payment.
As noted previously, the Queensland Government also paid for claimants
to receive independent legal advice, after which claimants would have at least
a 24 hour cooling off period before deciding if they wanted to accept the
HREOC noted that the effect of accepting the reparations offer and
signing the indemnity was to conclusively determine any rights to compensation
in relation to missing or withheld wages and savings. HREOC expressed concern
that in those circumstances, claimants had only limited access to information
to make an informed decision about accepting or rejecting the offer.
Given the implication of accepting the offer and signing the Deed of
Agreement on a claimant's ability to take future legal action, the committee is
concerned that some claimants felt they had been coerced into accepting the
offer and signing the indemnity agreement. Some of the comments that the
committee heard from claimants included:
I signed for it. I went to the city and I had a witness with me.
I went in to see the bloke, the solicitor. He said: 'You sign it or you get
nothing.' ...'Or wait 20 years like Mabo.' So I signed it, because my cousin died
of cancer. I signed it under pressure.
The reason why I took it was my little daughter was very sick.
That is the only reason why I took it; otherwise I would never have taken it.
The whole point is: I was practically going on for 70 years of
age. I was sick; my wife was sick and there were many around about my age. We
were so concerned about the future: we might not be alive by the time all of
this great amount of money came in. So, in a sense, we were coerced into taking
the $4,000 ...
What had happened was that when people were out there, they
already had the money spent – the $4,000 or the $2,000. In your mind, you had
that money spent. Most of it was spent for funerals. Mine was, for my 94-
year-old mother...There was no way in the world that I could not have signed that
piece of paper, indemnity or not. That indemnity, we were told by the young
solicitor who was there, was a legal document.
What I am saying is that we had had that money spent, more or
less. When you then get into a meeting and somebody says, 'If you do not sign
this paper, you do not get the money,' what are you going to do? Are you going
to go back and tell your mum: 'Look, I refused the money. I cannot bury you. We
have got to hand the hat around again to communities'? So I think it was unfair
of them to say to us, 'You sign it.'
In responses to questions on notice, the Queensland Government provided
information in relation to access by claimants to independent legal advice.
The Queensland Government advised that:
In accordance with the offer document, the Department expected
the legal advice to be provided by a legal practitioner on an individual basis
to an eligible claimant, whether by personal interview and/or telephone and/or
letter of advice.
However, the department's preference was for legal advisors to
meet directly with each eligible claimant.
The Queensland Government advised that letters were sent to each
eligible claimant which included the Deed of Agreement, payment instructions,
Practitioner's Checklist and Practitioner's Certificate; and no eligible
claimant could sign a Deed of Agreement without first receiving independent
(non-government) legal advice about the implications of signing the indemnity.
In response to a question about the actual number of people who sought
access to the legal advice, the Queensland Government advised that:
The number of eligible living claimants under the reparations
process is 5216, all of whom have, or will have, received legal advice about
the consequences of signing a deed in acceptance of their offer.
The Queensland Government also advised the committee about the substance
of the legal advice that was provided:
The advice to each eligible claimant related to ensuring the
claimants understood their rights; that they understood the contents and effect
of the claim form (in particular, the offer and deed of agreement); the
claimants were also fully informed having regard to all the relevant
circumstances (including cultural and language requirements) of the claimant;
and that the deed was executed correctly.
Reliance on documentary evidence
To determine if a person had their wages or savings controlled under a
protection Act, the Department of Aboriginal and Torres Strait Islander Policy
considered only written evidence demonstrating control of a claimant's wages or
savings in Queensland Government records, rather than attempting to reconstruct
work or savings histories in order to establish eligibility.
The committee has previously commented on difficulties that result from
missing records, and the extent and complexity of the archives when locating
records relating to individuals.
Where there is no written record of a person under the protection Acts, they
are not eligible for the reparations offer. For example, Mr Colin Graham
advised the committee about how a lack of documentary evidence meant he, and
his family, were excluded from the reparations offer:
Even though we were Queenslanders we were not dependent on any
mission or Government assistance we are still Aboriginal people and that meant
we were still under the Queensland Department of Aboriginal Affairs, and we
still had to abide by their rulings.
But because I do not have documented evidence and cannot meet
the Queensland Government guidelines, I still believe that people like my
mother, and stepfather, my brother Raymond, Paul and three sisters Leonie,
Roberta and Elsie, are entitled to the same payout and condition of the $4,000
+ $2,000 that was made to certain applicants who meet the Government
Ms Pamela Meredith raised a similar concern, commenting that lax
government recordkeeping practices have meant that her mother will never be
able to prove her eligibility for the offer.
Ms Christine Howes, Queensland President of ANTaR, provided further
information of an instance where a potential claimant had been discouraged from
applying for the reparations offer because they were told that their records
were destroyed in a flood.
Dr Ros Kidd explained to the committee that she believed that statements by
the government that it could not find records should be treated with caution.
Many witnesses considered it was unfair to place such a reliance on the
documentary records, particularly when it was the responsibility of the
Queensland Government, and not the individual worker, to keep and maintain the
records. Mrs Margaret Marshall suggested the onus should be on the government
to disprove an application for the reparations offer.
Distribution of the remainder of
the reparations allocation and the Welfare Fund
As at 9 October 2006, a total of $19.11 million had been paid to claimants
as part of the reparations offer.
Much discussion occurred during the inquiry on how the remainder of the $55.4
million (the original $55.6 million less $200,000 for consultation) allocated
for the reparations offer was to be spent.
The Queensland Government indicated that there had been a change in its
original plan as to how the unspent balance of the reparations offer funds will
In 2003, the Government made a commitment that at the end of the
process any unspent balance of the reparations amount will be placed into the
Aborigines Welfare Fund with a proportion to be provided for the benefit of
Torres Strait Islander people. The Government had decided that a foundation
governed by a board of eminent persons would be established and will make
decisions relating to the management of assets of the foundation. However,
because of the quantum of funds now involved, further consultation is planned
to seek the views of Aboriginal and Torres Strait Islander people in relation
to the application of monies within the Aborigines Welfare Fund and the unspent
funds out of the [reparations offer].
Ms Tammy Williams drew the committee's attention to the distinction
between the unspent reparations offer funds and the money that remains in the
Aborigines Welfare Fund:
...when we talk about reparation there are two sub-issues. The
first issue is that there needs to be an appropriate reparation package in
relation to the Aboriginal Welfare Fund because...the Aboriginal Welfare Fund was
set up for the benefit of all Indigenous people, and therefore a reparation
package must benefit the entire Indigenous community. The second issue is in
relation to the savings bank accounts ... these were personal accounts which
contained individuals wages and earnings. The Queensland government’s $55
million reparation fund was set up for the purpose of providing compensation
for the people who had their money in those savings accounts, so there is an
issue in relation to the surplus of this money.
It is my submission...that that money should be used for the
primary and direct benefit of those old people whose money was taken. It should
also be used to have a long-term positive effect on those people.
Ms Tammy Williams was particularly critical of suggestions that the
remainder of funds and the Welfare Fund monies be spent on initiatives which
should rightly be funded by the Queensland Government, such as education kits
and road signage.
Mr Kenneth Bone, Mayor of Cherbourg Aboriginal Community, also expressed his
opposition to some of the suggestions which had been made for the unspent
reparations offer money:
We had a minister from the government up [at Cherbourg] last
week. He spoke to the council. He said there was about $31 million left. With
that we said we were thinking about setting up some sort of welfare fund to do
with our children so that our children could get a good education to be able to
face the future. I was not being rude but blunt. All I said was, 'Your
government did not steal the money from my kids. They stole it from me, my
mother and my father. So we want it back ...'
Mrs Ruth Hegarty advised the committee that she would 'love' to use the
approximately $34 million remaining from the reparations offer to pay people
what they were actually owed, but there has never been any suggestion that this
The Queensland Government assured the committee that the money remaining
from the $55.4 million allocation (the original $55.6 million less $200,000 for
consultation) for the reparations offer would be kept separate from the
Department of Communities' budget for general Indigenous programs and services.
The Queensland Government during the public hearing reiterated its commitment
to expend the money for the benefit of Aboriginal and Torres Strait Islander people
in Queensland, and that expenditure would be done in consultation with the
Indigenous people of Queensland.
Mr Patrick Hay, representing QPILCH, acknowledged the Queensland
Government's proposal to consult with the Indigenous community over the spending
of the funds remaining from the reparations offer and the Aborigines Welfare
Fund, but cautioned the Queensland Government to undertake a 'proper'
New South Wales - Aboriginal Trust Fund Repayment Scheme
On 11 March 2004, the then Premier, The Honourable, Mr Bob Carr,
formally apologised to the Indigenous people of NSW in relation to the
management of monies paid into the Aboriginal Trust Fund, and announced that
State Cabinet had agreed to develop a scheme to identify and reimburse the
people who were owed money. The Aboriginal Trust Fund Repayment (ATFR) Scheme
was to be developed in consultation with Aboriginal communities. In announcing
the development of a scheme, Premier Carr also recognised the inherent
difficulties in the task:
This is a problem that has built up over generations. It will
not be fixed overnight, and the records barely exist. But administrative
complexities should not overshadow the need to discover the truth, and the
Government certainly will do all it can to help find evidence that will support
claimants' cases. In those cases where the evidence is sketchy, the Government,
in consultation with the Aboriginal community, will develop rules for payment.
In May 2004, the NSW Government established the first ATFR Scheme Panel
(the first Panel) to consult with the NSW Aboriginal community and report back
to the NSW Government on the design of a scheme to repay the wages and other
payments that had been put in the Aboriginal Trust Fund.
The current ATFR Scheme Panel (the second Panel) provided evidence of the
consultation undertaken by its predecessor:
During 2004, the [first] Panel was briefed by government
agencies on information known about records, categories of claimants and the
history of developing a repayment scheme. A 1800 free call number was
established and an Aboriginal Trust Fund Repayment Scheme web site set up.
Information sheets were developed and circulated.
The [first] Panel undertook a series of visits to locations
across NSW to seek the opinion of Aboriginal people about how a payment scheme
... Approximately 538 people attended meetings with the [first]
Panel in [15 regional locations].
The first Panel received 13 submissions from individuals and
organisations and meetings were held with NSW Government and non-government
organisations to further explore issues raised in submissions.
The first Panel presented its report to the NSW Government in October
This panel reported that the NSW Government's liability was not as great as had
been previously estimated and stated that the number of eligible claimants
would be unlikely to exceed 3,500 and '[all] indications are that total
payments during the first three years of operation of the scheme may not exceed
The first Panel recommended that a scheme be established for the
repayment of all wages and other money paid into the Aboriginal Trust Fund
which had not been repaid during the period 1900 to 1968.
The first Panel noted that the money that was placed in the Aboriginal Trust
Fund included wages and social security benefits such as maternity allowances
and compensation payments.
The proposals made by the first Panel were accepted by the NSW
Government in December 2004, when it announced the establishment of the ATFR
Scheme. The ATFR Scheme was administered by the Aboriginal Trust Fund Repayment
Scheme Unit (ATFR Scheme Unit) and the second ATFR Scheme Panel, which consists
of Mr Aden Ridgeway, Mr Sam Jeffries and Ms Robynne Quiggin.
The ATFR Scheme officially commenced operation in February 2005. The
second Panel was appointed in May 2005 and commenced work on 1 July 2005.
The main features of the ATFR Scheme included:
- the repayment of wages and other money placed in the Aboriginal
Trust Fund which has not been repaid, indexed to its current value;
- no cap on repayment amounts;
- claims to be paid where there is reliable evidence of money being
paid into the Aboriginal Trust Fund and where there is no evidence, or no
reliable evidence, that the money was paid out. Oral evidence may be accepted
where gaps in written records exist;
- claims may be made by individuals who had their money placed into
the Aboriginal Trust Fund (or their authorised representative), or, where the
direct claimant is deceased, their descendents may make a claim;
- claimants are not required to sign an indemnity; and
- the provision of practical support and counselling for claimants.
Operation of the Aboriginal Trust
Fund Repayment Scheme
The NSW Government explained the process for making a claim under the
The ATFR Scheme Unit is responsible for receiving and
investigating applications made pursuant to the Scheme, compiling all relevant
information, and preparing an interim assessment for that claim. The interim
assessment is sent to the claimant seeking their views as to whether they agree
or disagree with the interim assessment. If claimants disagree, they are
afforded an opportunity to provide additional evidence to the Panel.
Once an interim assessment is agreed to, claims are referred to
the ATFR Scheme Panel, which reviews each case and any evidence provided by
claimants either via Statutory Declaration or through the provision of oral
evidence. A recommendation is made to the Minister as to whether a repayment
should be made.
The NSW Government also provided a copy of the 'Guidelines for the
Administration of the NSW Aboriginal Trust Fund Repayment Scheme' (ATFR Scheme
The NSW Government stated that the ATFR Scheme Guidelines retained some
flexibility and were 'not binding on the Director-General of the Premier's
Department, the [second] Panel or the Minister where they are satisfied that
strict adherence to the guidelines would not be in the interests of equity for
claimants or potential claimants'.
The Public Interest Advocacy Centre (PIAC) described the investigations
that the ATFR Scheme Unit carried out in preparing the interim assessment:
The [ATFR Scheme] Unit forwards the claimant’s details to the
NSW Department of Aboriginal Affairs ('DAA') and State Records NSW ('State
Records') to enable both agencies to undertake a search of all archived
documents in relation to the claimant. The Agencies provide a list of all
documents and copies of those documents they consider relevant to the claim.
The [ATFR Scheme] Unit reviews the documents it receives from
DAA and State Records. In particular the [ATFR Scheme] Scheme concentrates on
documents that detail payments into and out of the claimant's trust fund
account and makes an interim assessment of the amount owed to the claimant
The NSW Government noted that various forms of
evidence can be used to substantiate claims, including Aborigines
Protection Board and Aborigines Welfare Board records; other government or
independent written records; and oral evidence. The greatest reliance is placed
on the records of the Aborigines Protection Board and Aborigines Welfare Board.
The second Panel also provided an explanation of the work that it
undertakes when considering claims:
The Panel reviews all claims, the interim assessments prepared
by the ATFR Scheme Unit and can either endorse or reject these for payment. The
Panel has full discretion to review all the facts in each case using all
available evidence, including oral evidence.
An important role for the Panel is that it can review decisions
of the ATFR Scheme Unit at the request of claimants...the Panel may request
further information or investigation by the ATFR Scheme Unit, ask for more
information from a claimant, or recommend to the Minister that an ex gratia
payment be made or not to the claimant in accordance with Part 8 [of] the ATFR
The Panel can seek expert assistance in locating, collating or
interpreting the records if it considers this would be of assistance in assessing
the application. For example, in the case of a very complicated descendants'
claim the Panel can, if it wishes, seek advice from the Public Trustee or legal
advice from the Crown Solicitor's Office.
The second Panel noted that in order to recommend to the Minister that
an ex-gratia payment be made, the ATFR Scheme Guidelines required that the
Panel be satisfied that:
- there is certainty, strong evidence or strong circumstantial
evidence that an amount of money payable to or held on behalf of a claimant at
any time was paid into the Trust Fund between 1900 and 1969; and
- there is no evidence, or no reliable evidence, that the full
amount of the money was paid to the claimant.
The committee is disappointed that neither the NSW Government nor
members of the second Panel were able to appear before it in order to further
discuss the progress of the ATFR Scheme.
The committee notes evidence provided by the NSW Government that
repayments under the scheme have varied between almost $1,000 and $24,000.
PIAC also provided the following information on the ATFR Scheme as at 31 August 2006:
- 290 claims lodged;
- 190 claims where an interim assessment has been completed; and
- the total value of the interim assessments is $385,325.
Concerns about the Aboriginal Trust
Fund Repayment Scheme
Evidence received during the inquiry indicates that, overall, the NSW
ATFR Scheme has been better received than the Queensland Government's
The committee was pleased to hear evidence from Mrs Valerie Linow, detailing
her positive interaction with the second Panel when she challenged the interim
assessment by the ATFR Scheme Unit:
Going to the panel takes a load off you. If you went to court,
it would be more traumatic. I thought the panel were out to knife me, but they
were understanding and compassionate people. I did not realise that. I was
brought up in an environment where non-Indigenous people turn against
Aboriginal people. I did not realise that there are people in this world who
have an understanding towards Aboriginal people. I found that the panel was
very good. It was very easy for me – because, at my age, I am too old for this.
Mr Darren Dick of HREOC described the ATRF Scheme process as empowering:
In New South Wales you have people who have received settlements
that are less than the resulting settlements in Queensland, less than $2,000 or
$4,000, and there does not appear to be dissatisfaction with that. Part of that
is a process issue, I think – if people feel empowered through the process
rather than disempowered.
Despite these encouraging indicators, the committee is aware that some
concerns remain in relation to the ATFR Scheme.
PIAC outlined that it believes that the ATFR Scheme may allow for a
gross under-estimation of money owed to Indigenous people because of the
starting point for calculations:
In PIAC's experience, the Unit calculates the amount owed to the
claimant by working backwards in time. It starts its calculations from the
final recorded figure in the claimant's trust account. The Unit then
investigates whether there were any invalid payments made from the account such
as dental bills and then credits this amount back to the final available
balance of the trust account.
The Unit adopts this approach as it is limited by the boundaries
of the Scheme as set out in the Guidelines...Accordingly, the Unit does not
question whether the final amount in the claimant's trust fund account is an
accurate assessment of the amount owed, that is, the amount that should have
been in trust based on the person's work or other entitlements history. The
Unit does not investigate whether all the wages were paid into the trust fund
or invite the claimant to give evidence of the dates between which they were
employed, their level of wages or whether they received payments from their
trust accounts. In PIAC's view this approach is likely, in some cases, to lead
to a gross underestimation of the amount owed to a claimant.
PIAC also raised a number of other issues with the committee, including:
- the delay in developing the ATFR Scheme Guidelines;
- the prioritising of some claims on the basis of the time at which
the first Panel was contacted by the claimant to indicate a possible claim;
- that claimants do not receive all records about them held by the
Department of Aboriginal Affairs and State Records New South Wales as part of
- the lack of funding for practical assistance, in particular legal
advice for claimants who have received an interim assessment; and
- the lack of information available to potential claimants and the
public about the ATFR Scheme.
Ms Sally Fitzpatrick, a representative of ANTaR, stated that there was
concern in the Aboriginal community that the ATFR Scheme did not address the
repayment of pocket money which apprentices may not have received.
Mr Sean Brennan of the ILC commented on the operation of the ATRF Scheme
and said the 'judgement of the jury is still out':
There has been some concern about delays and that is very
understandable. There is a concern about the degree to which written evidence
may drive the conclusions of the panel and that is an issue that has continued
to be worked through in individual cases for the moment.
Mrs Marjorie Woodrow provided further comment on the ATRF Scheme and
expressed her dissatisfaction with the scheme and the interim assessment of her
I went and saw the panel with my lawyer. My son was with me. My
son said, 'No, that is not my mum's signature, I can vouch for that.' He said:
'My mum is not a very tidy writer, she’s very sloppy in her handwriting. That
is not her signature.' But they still said that I was paid out. We went home,
and then my brother passed away a couple of months ago and we had to bury him.
He did not have any money. And because they found out I was looking for money they
offered me $2,060, because they thought I would take it. I said, 'No, I would
battle it out and bury him the best way we could,' which I did.
Mrs Woodrow indicated that she did not intend to pursue repayment of her
wages further through the ATFR Scheme, because 'they will probably want to
offer me less'.
...I am not running after them. I have done enough running. I
think it is up to them to do the running from now on. I am there waiting for my
wages. If I have to go to court, well, court it will be.
Experience in other jurisdictions
The committee received some evidence in relation to mechanisms that have
been implemented in other jurisdictions with similar histories of Indigenous
protection regimes in order to redress injustices.
ANTaR and the NSW Stolen Wages Working Group noted that both Canada and
the United States have similar histories of Indigenous protection regimes:
While the 'protection' systems that operated were not identical
to those in Australia, they do share significant similarities with Australia's,
and research into approaches they have taken to redressing the damage of
'protection' regimes could be useful.
The NSW Stolen Wages Working Group suggested that North American
approaches to redressing the damage of 'protection' regimes could assist in
developing an appropriate Australian approach to the stolen wages issue.
Ms Thurlus Saunders suggested that a similar approach to that taken in Canada
in relation to the Inuit people might be followed in Australia:
One example of responsible government handling of a similar
situation with the Inuit people of Canada, is that the people now have a
percentage of the GDP, self-governance, recognition and respect as traditional
owners, and the opportunity of true sustainability and self-reliance and
working out past and current issues in the way they need to themselves. Our
country would do well to emulate or even better that situation for the
Aboriginal peoples of Australia.
Ms Yvonne Butler also noted that the Canadian Government has instituted
formal restitution to Indigenous peoples who have suffered discriminatory
Dr Ros Kidd informed the committee that, in 1992, the United States'
Senate 'commissioned a report into more than a century of mismanagement of
Indian monies held in trust by federal governments'.
Dr Kidd submitted that the Synar Report
'has formed the basis not only for subsequent pressure in the Senate to achieve
justice on this matter but also for court action to the same ends'.
Further, according to Dr Kidd:
The District Court of Columbia [has]
stated [that] the government will be held to the same standard of
accountability as any financial institution and in 2003 it required the
government to account for all funds deposited or invested since the
trust commenced in 1887, including also for deceased beneficiaries.
Dr Kidd argued that Australian governments should be held to the same
standard of accountability, and be liable for the same redress as other major
Some noted that courts in other jurisdictions such as the United States
and Canada have relied upon the existence of fiduciary duties in holding
governments liable for abuses of powers exercised over Indigenous people placed
in positions of vulnerability. The Castan Centre for Human Rights Law and
Australian Lawyers for Human Rights asserted that the most promising argument
for stolen wages claimants in Australia is that the government breached a
fiduciary duty to those whose wages it controlled. Such an argument would
require the claimants to prove that the government was a fiduciary, and that it
breached its duty under that relationship.
Professor Anna Haebich submitted that Australia 'should be looking to
examples overseas – Native Americans, Jewish families, and former slave workers
for the Nazi regime'.
Ms Butler drew the committee's attention to the plight of Jewish people
in the Second World War and noted that:
Shortly after the end of the Second World War, reparations
negotiations commenced against Germany and its allies. The international Jewish
community have been the recipients of huge amounts of funds stolen from its
members during the holocaust. The tracing of these funds cost in excess of
US$12 billion, and was funded by various parties including the Swiss Bankers
Ms Butler also submitted that:
The World Jewish Restitution Organization (WJRO) extends beyond
the recovery of Jewish gold and money and currently has listed 14,083
properties in Europe which it is in the process of recovering, in addition to
ongoing financial claims against many governments. These properties are where
claims can be made to the origin of ownership being secured by Jewish funds.
Although many governments and banks have repatriated funds to Israel
and the WJRO, many claims are being actively pursued nearly 70 years after
these monies and properties were appropriated.
The document prepared by the Queensland Aboriginal and Islander Legal
Services Secretariat (QAILSS), containing the proposal to the Queensland
Government for the repayment of stolen wages, provided information on
precedents in Germany and Switzerland in relation to individual reparations
payments made to claimants who were subject to enforced work schemes.
Ms Butler and Ms Lillian Willis pointed to the possible relevancy of the
Treaty of Waitangi in New Zealand;
as well as to the Diego Garcia case in the British High Court in which 'several
rulings have been made in favour of handing back sovereignty to dispossessed
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