INTRODUCTION TO TRUSTEES ON TRIAL

At a time when organisations representing indigenous people are routinely accused by governments of mismanaging their funds, it is appropriate to consider how those funds were managed when they were entrusted to governments. This book explains that for a century, Australian aborigines were quite literally robbed blind, by governments and public servants who were under fiduciary duties to protect their earnings. Dr Kidd examines the Queensland records: its current Premier has at least faced up to the historic wrongs his predecessors have perpetrated, but similar malfeasance almost certainly occurred in other states. You have heard about the stolen generation: this is the story of the stolen wages.

It began with legislation at the end of the 19th century that allowed government officials (ironically entitled “Protectors” of aborigines) to confiscate their wages. This reflected the paternalism of the period – aborigines could not be trusted with money – although later it took on a more sinister aspect. This was when public servants, imbued with the eugenics theories fashionable amongst both Nazis and English and American socialists, decided to “breed out” the aboriginal gene. This policy was agreed by “Protectors” from Queensland, Western Australia and other states at a conference in 1936: aboriginal girls were taken from reserves to be placed as domestic servants, and their wages were impounded by the state, making them more vulnerable to miscegenation which would, so their “Protectors” hoped, eliminate in three generations the “degenerate” aboriginal traits. (The story is told, cinematically, in Phil Noyce’s film Rabbit Proof Fence). This genocidal policy was later abandoned, although the Queensland government continued to confiscate wages from aboriginal workers. Millions of pounds were lost in unprosecuted thefts and frauds as “protectors” and policemen and others through whose hands the funds passed helped themselves to aboriginal earnings. Many more millions were lost through bureaucratic mismanagement. The scandal lasted into the ‘80s, through the era of the corrupt Bjelke-Peterson government.

Dr Kidd is unsparing in her criticisms of the politicians responsible for this long-running breach of the duty owed to a vulnerable people. But politicians are always tempted to behave like this unless they are checked by other institutions in society, most importantly the media and the courts. The truly shocking fact is that details of these defalcations were available, in public accountability reports, for many years. Yet few in Queensland cared. Certainly not the journalists – those supposed “watchdogs” who allowed politicians to feed them like chooks but who were not smart enough, or interested enough, to follow the available leads and to expose the scandal – or even to recognise the government’s behaviour as meriting that description. And where were the lawyers? In the ‘60s, when trust money was disappearing, there was still no one prepared to take the government to court to force it to obey its own laws, or at least to ensure that the wages were returned to those who had earned them.

This was the time when I was recruited by Faith Bandler to join the Board of the Foundation for Aborigines and Torres Strait Islanders. The first case I took up was that of Nancy Young, a Queensland aboriginal mother cruelly jailed for manslaughter of her child when it had in fact died from scurvy contracted in the insanitary conditions of the Cunnamulla reserve. The almost contemptuous indifference towards aboriginal problems in our past was not just a matter of discrimination, or redneck ignorance. Read the Convention debates which led to the federation of Australia, and you get the impression that aborigines were regarded as less than human: they were spoken of in the same breath as kangaroos, as creatures that threatened the crops. Dr Kidd’s work shows, in hard, economic terms, how until recently we refused to accept the value of our indigenous people: they were, if not worthless, at least worth less than whites: paid at a 40% discount for the same work, often (as in the case of skilled stock riders) for better work. And still, the government seized their discounted pay packets.

It was not until 2002 that the Queensland Premier, Peter Beattie, made a compensation offer as a solatium for “the lasting pain caused by past government policies”. $55 million was earmarked to “deliver some overdue justice to aging people” for the “decades of control by former Queensland administrations of their wages and savings”. The reader must judge whether this was too little too late, or better late than never. Dr Kidd, clearly, remains underwhelmed. But the true test of a society is how it treats its most vulnerable members and there are not many examples of governments paying reparations for past wrongdoings. So perhaps Mr Beattie deserves two cheers for acknowledging a responsibility which other states have declined even to consider.

A signal virtue of this book is its explanation of how Australian jurisprudence lags behind that of Canada and the US, where class actions based on equitable concepts of trust have enabled indigenous people to obtain damages when the state has abused fiduciary duties owed to them. Plainly, governments have moral obligations to protect vulnerable citizens and legal obligations to compensate them for loss caused by mismanagement or malfeasance. Australian courts have been slow to deploy equitable principles to this end, although in my view equity is not necessarily the best way forward. For all its fine-sounding principles and its utility in protecting vulnerable individuals, in practice its maxims are often minims, its discretion can be as long as the chancellor’s foot and its delays – well, the only book equity has ever inspired is “Bleak House”. Equity is not the best way to reign in a government: that is the job for a developed system of administrative (or public) law. So many of the decisions taken over aboriginal trust funds by public authorities were illegal or irrational or unfair: they should have been challenged at the time by writs of certiorari or mandamus – Latin tags for the historic power of public law to make governments act reasonably.

Most advanced democratic countries now drop the Latin, and harness public law powers to a Bill of Rights which guarantee that citizens will be treated fairly and humanely by public authorities, and gives them a legal right to take the government to court when they are not. Governments which deny basic rights can then be forced to pay damages to compensate the victims of their abuses of power. The appropriation of aboriginal wages involved breaches of property rights and of due process – both abuses being attended and indeed inspired by discrimination on grounds of race. Sadly, Australia is backward in this respect, and the present federal government shows no interest in endowing Australian citizens with the enforceable human rights possessed by peoples in England and Europe, or in Canada and the United States.

Mr Beattie’s offer of reparations will not really be meaningful unless his government is prepared to grant the people of his state a legal right of access to the courts when public administrations treat them unfairly. If he wants to be remembered as a statesman rather than a politician, the statesmanlike thing to do would be to vouchsafe them a Queensland Bill of Rights. Only then can we be sure that if malfeasance of this kind happens again in this State, it will not take more than a century to remedy.