Australian Indigenous Law Review
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Australian Indigenous Law Review |
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Thalia Anthony[*]
Justice for Indigenous cattle station workers requires recognition that unknown numbers of Indigenous people throughout the 20th century had their wages either stolen or wholly withheld. Research has disclosed both the negligent administration of stations by State Governments and the fraudulent expropriation of moneys held on trust for workers.[1] Substantial evidence of fiduciary breaches of trust on the part of both the New South Wales and Queensland Governments has been uncovered.[2] Both of these States have established compensation schemes for victims of stolen wages. By contrast the Northern Territory (which was the largest employer of Indigenous workers nationally) and the Commonwealth have failed to address the fact that, with few exceptions, Indigenous workers went unpaid for nearly half a century.[3] This came to a sudden halt in the late 1960s when Indigenous workers were expelled from stations following In the matter of the Conciliation and Arbitration Act 1904–1965, and of the Cattle Station (Northern Territory) Award 1951[4] and the introduction of labour-saving machinery.[5] This article maps the contribution of Indigenous workers to the cattle industry on a national level. It then focuses specifically on possible means of redressing the injustices perpetrated against Indigenous workers in the Northern Territory.
Federal Parliament recently demonstrated its interest in this issue with the 2006 Senate Legal and Constitutional Affairs Committee Inquiry into Stolen Wages, which sought to ascertain the extent to which Indigenous workers ‘whose paid labour was controlled by the government’ had their wages withheld.[6] The Inquiry received evidence of misappropriated Indigenous wages from Indigenous people, legal bodies, non-government organisations and researchers across Australia.[7] The Committee made especial note of the sparse records pertaining to stolen wages in the Northern Territory[8] and recommended that measures be taken to investigate this issue as a matter of urgency.[9] The issue of stolen wages in the Northern Territory is particularly relevant (and problematic) to the Commonwealth because it governed the Northern Territory between 1911 and 1978, when tens of thousands of Indigenous cattle station workers were employed there.
Pursuant to the findings in the Senate Inquiry a number of workers from the Wave Hill cattle station in the Northern Territory have expressed interest in a test case to recover their stolen wages. The President of the Daguragu Government Community Council has collected a list of over 40 Indigenous people who are willing to testify that they were denied wages and provided with the poorest quality rations.[10]
The Commonwealth Government has a moral duty to provide compensation for Indigenous workers deprived of their wages.[11] This author suggests that identifying past wrongs committed against Indigenous workers, pursuant to Recommendation 5 of the Senate’s Unfinished business report, and establishing a compensation scheme is an appropriate course of action. It is suggested that the Government is in a better position than courts to remedy stolen wages because it can adopt comprehensive solutions that engage Indigenous communities, pastoral companies and the public. A process of ‘negotiated settlement’[12] that acknowledges the legal and moral obligations of governments could provide broader benefits, so long as the process guarantees a central role for Indigenous organisations and legal services.
However, the Government’s reticence towards this issue suggests more affirmative forms of action are necessary. As such, this paper offers a consideration of the various legal and equitable claims that exploited Indigenous workers could pursue against the Federal Government and cattle corporations. These claims are based on the Government’s allocation of Indigenous people to jobs on cattle stations and the attendant breach of agreements regarding their wages and conditions on the part of both the Government and stations. Three distinct issues must be kept in mind:
(1) Regulations made pursuant to both the Aboriginals Ordinance 1918 (Cth) (‘1918 Ordinance’) and the Aboriginals Ordinance 1933 (Cth) (‘1933 Ordinance’) enabled stations to give rations to their Indigenous cattle workers and their dependants in lieu of wages. A licence agreed to by government officials and station managers stipulated this employment arrangement and its associated conditions. This article demonstrates that the Government and stations breached this arrangement by: incorrectly classifying Indigenous people on stations as ‘dependants’ when in fact many of them were also workers; denying drovers their wages on the false pretence that dependants’ rations offset their wages; denying many workers on the homestead and station property their wages because they were classified as ‘dependants’; and failing to enforce standards for Indigenous cattle workers as prescribed by licences and government regulations.
(2) When compulsory wages were introduced after World War II governments failed to enforce their actual payment. Station managers pursued a practice of converting wages to credits in the station store (‘booking down’) while also inflating store prices. Despite Protectors’ awareness of the booking down system, the Chief Protector failed to use his powers under the 1918 Ordinance or the 1933 Ordinance to bring legal proceedings for the defrauding of Indigenous workers.
(3) In certain circumstances cattle station workers had their wages or benefits placed in trust accounts. This included payments for itinerant drovers, apprentices, social security recipients and, after 1957, wards of the state.[13] However, given that payment of moneys into government accounts was both a relatively minor form of remuneration for cattle workers and that there is a need for further research into their operation,[14] such payments will not be emphasised in this article.
Part II of this article traces the significant contribution made by Indigenous workers to the Northern Territory cattle industry, along with the profits that accrued to stations as a result of Aboriginal efforts and the failure of stations to remunerate them. Part III examines the legislative arrangements between the Government and cattle station managers that allowed the circumvention of wage payments through stations maintaining the dependants of workers. Part IV considers the Government’s negligent oversight of cattle stations. Part V then addresses the possible causes of action Indigenous workers could invoke in seeking redress in tort and equity. Part VI considers the conditions on cattle stations in the light of Australia’s obligations under international law, which could provide a basis for a complaint to the International Labour Organization (‘ILO’). Part VII examines what this author considers the most desirable mechanism for redress: a Government compensation commission and payback scheme.
From the 1880s until the 1960s the cattle industry was the largest employer of Northern Territory Indigenous workers. Other employers, including the Government, church missionaries, mining companies and town enterprises, employed a much smaller portion of the Indigenous labour force.[15] The 1928 report on northern Australia by the Chief Protector of Aboriginals, J W Bleakley, estimated that 80 percent of Aborigines employed in the non-Indigenous economy were in the cattle industry.[16] In 1965 the Equal Wages Case amended the Cattle Station Industry (Northern Territory) Award to include Aborigines. At this time the industry employed approximately 2500 Indigenous workers. A further 3500 people were classified as dependants of workers.[17] As will be discussed, many of these dependants were also engaged in station work.
From the early 20th century the cattle industry was the Northern Territory’s chief industry in terms of output and exports,[18] and Indigenous people were its predominant labour source. The profitability of cattle stations hinged on Indigenous peoples’ vital and unpaid contribution for almost 80 years.[19] As a direct result of Indigenous labour Northern Territory stations operated profitably throughout the Great Depression and subsequent recessions, without the expense of investing in capital.[20] Indigenous stockworker Jack Jangari comments that Indigenous people ‘made Wave Hill [one of the largest stations in the Northern Territory] rich. They made every station…rich. And keep us fellows poor’.[21] It was not only stockworkers that made stations profitable by tendering, mustering and droving cattle, but also their dependants, including Indigenous women, children and the elderly. They carried out a wide range of necessary station tasks, including carrying water from creeks, fencing, yard and road building, digging dams and bores, and a range of domestic duties for their employers’ homesteads.[22]
The Indigenous labour contribution was acknowledged among officials. Chief Protector of Aboriginals, Baldwin Spencer, stressed in 1913 that ‘under present conditions, the majority of stations are largely dependent on the work done by black ‘boys’.[23] In the mid-1920s the Commonwealth Court of Conciliation and Arbitration refused to restrict Aboriginal employment because it would threaten the economic viability of cattle properties.[24] Chief Protector Bleakley claimed that ‘most of the holdings, especially the smaller ones, would have to be abandoned’ without Aboriginal labour.[25]
Pastoralists also admitted to the value of Indigenous labour. Charlie Schultz wrote that he had ‘a lot to be thankful for, as regards these abos (sic), and realize without their aid…I would not have been able to carry on’.[26] H E Thonemann, of the Northern Territory Pastoral Lessees’ Association, declared in 1929 that ‘ [t]he pastoralists in the Territory generally feel that the aboriginal is…essential to the progress of the Territory. The stations – I am speaking particularly of the northern and western parts – could not carry on without their assistance’.[27]
Indigenous workers were valuable not only because they were unpaid, but also because their skills made them adept in the conditions and demands of station work. The low level of technology in the cattle industry until the 1950s meant droving was almost completely performed on foot and horseback. Indigenous hunting skills and awareness of the sprawling ‘station land’ and climatic changes made them competent workers.[28] Northern Territory Welfare Director Harry Giese maintained that ‘Aboriginals took to very readily’ the activities involved in station and stock work.[29] Indigenous workers took on their tasks with minimum supervision, and performed roles such as head stockmen.[30] But despite their enormous contribution, Indigenous people were not justly rewarded.
In the late 19th century Indigenous people were made to work on cattle stations without remuneration. This early period, in which pastoralists violently acquired Indigenous peoples’ land and brought them on to stations, has often been overshadowed by the nostalgia regarding cattle station life. This is especially true for Indigenous people born on stations after the 1930s because their situation was not the result of violently enforced recruitment.[31] However, in 1899 the Northern Territory Inspector of Police, Paul Foelsche, described recruitment of young boys and girls as ‘running them down’ and ‘forcibly taking them from tribes to stations’.[32] Hobbles Danyarri, an Indigenous ringer on the large Victoria River Downs property (owned, at the time, by the multinational Vestey corporation) claimed the police told cattle station owners to put Indigenous captives ‘on a job’ and ‘make them prisoner’.[33] Mary Durack of the Durack cattle dynasty wrote that ‘blackbirding aboriginal boys into slavery’ was common knowledge.[34] Nonetheless, the Government turned a blind eye. The South Australian Minister responsible for the Northern Territory,[35] J L Parsons, advocated in 1890 that the Government should ‘leave the native question alone’.[36]
Indigenous people eventually came to perceive the benefits of being on cattle stations, relative at least to being on the ‘outside’.[37] This is because Indigenous people on the outside were vulnerable to police and government officials who inflicted violent punishment on them. In addition, by living on station property Indigenous people could stay on their country with their kin; acquire sustenance from the managers; practice ceremonies; and, go walkabout in the wet season.[38] As a result of these factors, wages were not used to secure Indigenous workers’ loyalty. Rather, a ‘feudal’ bond emerged between station managers and Indigenous workers such that Indigenous people retained connections to country and received sustenance in exchange for their labour.[39]
Thus, when the Federal Government sought to regulate the unpaid relationship between cattle station managers and Indigenous workers in 1911 they were attempting to institutionalise a system that they, along with cattle stations, had in fact created. The licence system for Indigenous employees, which was introduced under the Aboriginals Ordinance 1911 (Cth) (‘1911 Ordinance’), legalised the control that station managers exercised over their unpaid workers. A licence, which cost 10 shillings per year, entitled an employer to recruit an unlimited number of ‘aboriginal natives’.[40] Indeed, Chief Protector Cecil Cook suggested that the more the manager kept on his property the better.[41] Under the permits, Indigenous people were denied freedom to travel outside the employment premises; had no bargaining powers over their work conditions; and, did not have the right to refuse to work.[42] The Protector of the district could give a licence to any employer he deemed ‘a fit person’.[43] The specific terms of employment were negotiated between the manager and the Protector, without any reference to the wishes of the Indigenous person concerned.[44] This contrasted with the provisions pertaining to licences in Northern Territory Town Districts, which also required ‘an agreement with the aboriginal’.[45] Licences were to be cancelled if they failed to comply with regulations, which included unsatisfactory wages and conditions. In the 1950s these regulations became increasingly prescriptive and onerous, but the ‘individual employer’ still exercised significant discretion.[46]
B Introduction of Legislative Provisions for Wages alongside Legislative Provisions to Bypass Wages
In the early cattle-industry era there was no government legislation requiring Indigenous cattle station workers to be paid wages. The first broad-sweeping Indigenous legislation, the Aboriginals Act 1910 (SA) (supplemented by the 1911 Ordinance when the Commonwealth took over administration in 1911) omitted compulsory or minimum wages for Aboriginal stockworkers. This was repealed and replaced by the 1918 Ordinance which allowed for wages to be circumvented. By the 1930s a movement, spurred on by humanitarians and anti-slavery activists, encouraged the enactment of new protective legislation.[47] In 1930, Arthur Blakely, Minister for Home Affairs, endorsed their view when he stated: ‘It would appear that there was a form of slavery in operation and that aboriginals were being worked without any remuneration whatever.’[48] Consequently, the Chief Protector of Aborigines for North Australia, Cecil Cook, introduced regulations pursuant to the 1933 Ordinance that extended the Aboriginal wage of five shillings per week to Indigenous people ‘employed in the country’.[49]
Some stations made efforts to honour this requirement. Pastoralists near the border competed with Queensland stations for in-demand Indigenous workers. For example, on the Alexandria station, 15 Aboriginal stockmen were paid eight shillings with food and clothing for themselves and their dependants.[50] At other stations there was occasional pocket money.[51] But these sums were only credits in the station books, meaning that employees rarely saw any cash.[52] When Indigenous workers were given the opportunity to spend these credits they were made to purchase goods from the station store at inflated prices.[53]
Generally, wages for workers on cattle stations went unpaid until 1949 due to Regulation 14 of the 1918 Ordinance, which gave the Chief Protector the power to exempt an employer from the ‘payment of wages’ to an Aboriginal person by feeding and maintaining ‘relatives and dependants’.[54] The 1940 Aboriginal Trust Account Investigation noted that while Indigenous people in Northern Territory town districts were paid moneys into trust funds, ‘very few accounts operate in respect of aboriginals employed in pastoral districts’ due to the power invested in the Director of Native Affairs to exempt employers.[55]
To substantiate any claim for the waiving of a cash wage ‘the employer was required, subject to check [by the protector], to disclose the number and identity of natives’ employed and fed.[56] Managers had to contribute to the Aboriginals Medical Benefit Fund, maintain medical facilities,[57] and provide food rations (including beef, flour, tea, sugar and tobacco) and clothing. They also had to provide ‘sanitary’ and ‘waterproof’ accommodation for Indigenous occupants.[58] In the 1950s, with the wave of assimilation, government welfare officers demanded that living standards on stations be lifted to civilise Indigenous people, particularly in terms of culinary and hygiene standards.[59]
In the post–World War II era the ration system slowly went into demise and wages were introduced. The 1949 Regulations under the 1918 Ordinance provided for a cash wage for drovers of £1 per week.[60] This rate increased to £2 under the Wards’ Employment Ordinance 1953 (Cth) (‘Wards’ Ordinance’).[61] During this period, the Federal Government increasingly maintained workers’ dependants through welfare payments, which diminished cattle managers’ justification for non-payment of wages.[62] These reforms were prompted by the official Indigenous policy of assimilation and a growing Indigenous rights movement, including the Pilbara cattle workers’ strike for wages in Western Australia. However, station managers abused the maintenance system by placing payments into general revenue, which will be discussed below. The Federal Government did not ensure that these payments were properly spent on maintaining dependants. In addition, stations continued to be reluctant to pay cash wages, turning instead to the booking down system to avoid this responsibility. As a result of the booking down system, Indigenous people could only spend their wages at the station store, which more or less equated with the rations they had previously received. It ensured that the pastoralist could continue to avoid wage payment. Patrol officers noted that even in the 1950s, ‘work for no pay was not at all uncommon’.[63]
Government officials were aware of this practice but did not seek to ensure that station store prices were kept at market levels. In fact, they believed that booking down assisted Indigenous people who were unable to handle their own money.[64] Prices in some station stores (such as the Victoria River Downs Station) were marked up by 300 percent in comparison to town prices.[65] Ted Evans, who had extensive responsibilities over cattle stations as Superintendent of Welfare in Alice Springs from 1935, Patrol Officer from 1946, and Chief Welfare Officer from 1955 to 1976, has cast light upon the inadequate monitoring of the credit system.[66] He said that when the £1 payment was introduced, managers ‘weren’t required to pay that in cash’[67] clarifying that ‘[t]hat wasn’t specifically stated but the practice was not to pay it in cash but to give credit in the store’.[68] Consequently, ‘[i]t was open to all kinds of abuse as you can well imagine, and with only one or two visits a year, which was the most that I could make, it was pretty hard to police’.[69]
While trust accounts comprised only a small proportion of Indigenous workers’ entitlements in the Northern Territory cattle industry, there are a number of discernable categories for which they were established. This will be discussed below. In addition, the few drovers unattached to stations[70] (that is, those that did not have their wages offset by maintenance of dependants) theoretically had their wages placed in a trust account under the Cook Administration.[71] However, official monitoring of this disbursement was difficult, resulting in employers pocketing the money.[72] There is ongoing research on whether the Government was also directly involved in misappropriating funds from trust accounts.[73] Below is a brief description of some of the streams of trust fund revenue and indications of government negligence in maintaining these accounts. Where there were stolen funds from trust accounts there may be actionable legal claims. This is also discussed below.
Chief Protector Cook used his powers under the 1918 Ordinance to implement the Apprentice (Half-Caste) Regulations in 1930.[74] This ‘half-caste apprenticeship scheme’ required managers to pay six shillings into an apprenticeship fund for part-Aboriginal apprentices.[75] According to McGrath, cash was alien to Indigenous people and ‘quite novel’,[76] meaning that they did not expect payment and the Government could easily pocket salaries plus interest.[77] A variety of anecdotal cases describing apprentices’ stolen wages appear in the Northern Standard, such as the following comment on ‘Yarrum’ published in 1935: ‘Concerning his wages, who has them? ... I would like to know how much this lad has to his credit, seeing he has been working for years’.[78] The article goes on to satirise the ‘Raffety Rules apprenticeship’ agreement:
Mr. Station Owner (to Protector): ‘Get me a boy: I will keep him; I can’t give him much wages; he can wear my old clothes and sleep in the shed or under the tree; his hours won’t be long – about fifteen per day. I’ll give him a few bob a week and with the few bob he can buy what he wants out of the station store.’
Protector: ‘Yes, I’ll send you a good boy, but you will have to pay his wages into the trust account. You see out of his trust account we build houses for half-castes in Darwin. Money no good to them. They don’t know the value of it.’[79]
The Wards’ Ordinance replaced the 1933 Ordinance, coming into force in 1957. The Welfare Ordinance 1953 (Cth) (‘Welfare Ordinance’) registered all but six of the Northern Territory’s 15,700 ‘full blood’ Aboriginal people as wards.[80] However, many Aboriginal people on remote stations were not registered as they did not come under the official purview.[81] While licences were not required for the employment of wards the Director of Welfare required notification and retained the power to forbid that person from employing the ward where the person, having regard to their previous conduct in relation to a ward, was not a fit and proper person to employ a ward.[82]
Under section 41 of the Wards’ Ordinance, the Director of Welfare could require Aboriginal workers’ wages to be paid into trust funds. However, station managers and patrol officers continued to exercise discretion in enforcing this provision. Patrol Officer Giese noted the ‘ambivalent attitude’ that station management adopted towards the trust fund.[83] The Social Welfare Ordinance 1964 (Cth) (‘Social Welfare Ordinance’) repealed the short-lived Wards’ Ordinance.[84]
The distribution of child endowments to cattle stations after World War II was a major development towards governments assuming responsibility for the welfare of Indigenous people on cattle stations. Under the 1947 Alice Springs agreement between the Northern Territory Pastoral Lessees’ Association and the Northern Territory Administration, the pastoralists were to be responsible for the maintenance of the male employee, his wife and one child, and the Northern Territory Administration were to be responsible for additional children.[85] Further, the Commonwealth Department of Territories provided a five shilling endowment for first children under the Social Services Consolidation Act 1947 (Cth) in order to supplement rations that the managers were required to give children as part of the employment arrangement.[86] The child endowments were held by the Director of Welfare in a trust.[87] The disbursement procedure was for a claim to be made by managers and certified by a Patrol Officer. Payment was then made to management for the child’s benefit.[88] This contrasted with the direct payment of elderly pensions to managers.[89] For the child endowments the manager had to furnish the Northern Territory Administration with quarterly reports on how the endowments were spent and whether in fact the children were still on the station.[90]
Despite government intentions for endowments to be used for the betterment of Indigenous children, it was not uncommon for endowments to disappear into ‘general station funds’.[91] The Director of Social Services observed that there was ‘nothing to prevent a Station Manager from using child endowment moneys for payment of wages to the natives’,[92] which should have otherwise been paid by the pastoralist. He further wrote:
Neither the Mission Station Authorities nor the Cattle Station Managers are using child endowment payments solely for the benefit of the children in respect of whom it is paid. Child endowment payments are now being used to reimburse Cattle Station Managers for expenditure previously borne by them, ie in the feeding, clothing etc of the natives; therefore no benefit is derived by the natives from such payments.[93]
The responsibility to protect Indigenous persons, which ultimately rested with the Chief Protector, included guarding against ‘injustice, imposition and fraud’.[94] Under the Protector a network of District Protectors administered the 1918 Ordinance. In 1939 these powers were transferred to the Director of Native Affairs who oversaw a body of patrol officers and police protectors. In 1953 the Director of Welfare and welfare officers assumed this responsibility.[95] At each phase, the network of protectors or officers was responsible for inspecting stations and ensuring their provisions complied with licence provisions.
Government monitoring of pay and conditions for Indigenous workers was difficult as the stations spanned thousands of kilometres. However, the Government did little to cover this ground, which was divided by poor roads and subject to a harsh climate. In the high tide of ‘official’ protection in the 1930s, there were only 48 Northern Territory protectors to oversee 523,000 square miles.[96] Even on their rare visits, protectors only made inquiries with management or relied on their monthly reports.[97] This was exacerbated by the fact that owners avoided being on their station when protectors visited.[98] Anthropologists have described these inspections of station provisions and employment conditions as ‘nominal and superficial’.[99]
The failure of Protectors to more scrupulously monitor station conditions for Indigenous people gave rise to major discrepancies between what the pastoralists officially conveyed and the reality of their treatment of Indigenous people. For example, in a submission to the 1937 Payne Inquiry on the Northern Territory land industries, the manager of Vestey’s Victoria River Downs station attempted to disprove that Indigenous people were a cheap labour source.[100] Comparisons with statistics in the station ledgers reveal that there was a gross exaggeration in the submission of the maintenance costs. The total cost in the submission amounts to £9682, whereas the cost stated in the station ledgers is £4344.[101] According to Kidd, ‘entries on station books reflected neither the size of the workforce nor the quantity of rations distributed’.[102]
Licences to employ Indigenous people were rarely cancelled due to the Government’s lack of monitoring, turning a blind eye when violations were recognised or blatantly siding with the station owners. In one instance enlightened Patrol Officer Ted Evans cancelled a licence after the manager of a station owned by the English corporation Bovril refused for one year to install a water pump so that all water was carted by Indigenous women on yokes. Within days the Federal Government sent Evans a telegram telling him to reinstate the licence.[103] Evans said:
Someone had obviously been in touch with Canberra. It was just signed DENATAFF, which is the telegraphic name for Native Affairs Branch. I just said I would want to be assured that the telegram was authorised by the Director, stalling. At any rate a telegram came from the Director saying that it was authorised by him. So I had to restore the licence, regrettably. However, that’s the kind of power and lobbying you’re up against when you try to do something.[104]
The lack of monitoring and enforcement of legislative provisions and regulations meant cattle station managers circumvented requirements to ‘maintain’ employees’ dependants. Consequently, rations were not an equal trade off for wages even at Indigenous levels, which explains why stations sought to exaggerate maintenance costs. Indigenous people thus bore the burden of inadequate provisions of food, clean water and accommodation. Commonwealth Department of Health surveys of cattle stations pointed to the high incidence of Indigenous peoples’ malnutrition and disease.[105] Indigenous people were given the ‘scraps’ according to Ruby De Satge, an Indigenous domestic servant on Victoria River Downs Station: ‘They fed the dogs better than they fed the blacks out there!’[106] Hobbles Danyarri, also on the Victoria River Downs Station, claimed that ‘tucker’ consisted of ‘flour with kerosene...they make a johnny cake smell like diesel and kerosene’.[107]
When Government standards for food and shelter for Indigenous people increased in the 1940s, cattle stations were not held to account for falling beneath them. The 1947 Regulations pursuant to the 1933 Ordinance required specified accommodation for Indigenous people on cattle stations.[108] Patrol Officer Evans noted that few stations made any real attempt to provide accommodation in accordance with regulations.[109] Given his failed efforts to cancel licences for non-compliance with hygiene standards (due to the Federal Government’s defiance) he claimed it was not possible to enforce accommodation standards.[110]
When Indigenous stockmen were ‘housed’ it was in huts made of paper bark, grass, canvas, tin, galvanized iron and any other scrap material.[111] Northern Territory Welfare Officer of the 1960s, Bill Jeffrey, likened them to ‘dog kennels’.[112] Pat Dodson, who was a Jackaroo in the Katherine, claimed ‘accommodation would be something you could scavenge from the station dump’.[113] The dependants, on the other hand, often slept in the open and had no access to permanent shelter structures.[114] The acting Director of Native Affairs, VG Carrington, described these camps as ‘unsightly and dirty’.[115] Patrol Officer Evans said they were a ‘hazard to the health of the Aboriginals’.[116] There were mostly no amenities or provisions for hygiene, washing or sanitation, including water pumps.[117]
The incidence of illness on stations was made worse by the lack of medical attention. Employers failed to make contributions to the Government’s Aboriginals Medical Benefit Fund, which was required between 1933 and 1947 under Regulation 12 of the 1933 Ordinance.[118] There was also a lack of Occupational Health and Safety standards for station workers making Indigenous work injuries common.[119] Pain and suffering sustained from work injuries were often not acknowledged, and injured Indigenous people were put back to work immediately unless they were incapacitated.
The injustice of not attending to workers’ injuries was made worse by the fact that managers did not pay compensation. ‘Half-castes’ were entitled to compensation for work injuries or employment negligence under the Northern Territory’s Workers’ Compensation Ordinance 1949 (Cth) and ‘full-blood’ Aboriginal wards were entitled under the Wards’ Ordinance.[120] Section 50 of the 1953 Ordinance required an employer to give written notice of any injury to the welfare officer, who was required to arrange for a medical examination and to report the matter to the Director.[121] This notice was rarely given and ‘obvious cases’[122] of compensation were not pursued by welfare officers. The consequences were that station workers were made to pay for medical costs from work injuries.[123] That they could not afford treatment meant they remained ill and their future employment opportunities were diminished. Stockworker Kwementyaye Price was a casualty of this system. On Glen Helen station near Alice Springs this ‘superb stockman and horse tailer’ sustained head injuries by falling from a horse in 1961,[124] resulting in severe epilepsy and the loss of employment. These circumstances were significant in his involvement in crime and subsequent death in custody in 1980. Price did not receive any workers’ compensation from the cattle industry.[125]
The Government administered the regulations that allowed many station workers to be classified as ‘relatives and dependants’. This classification justified stations’ non-payment of wages to those Indigenous people who should have been classified as ‘country workers’, as well as to Indigenous ‘drovers’. Regulations 14 and 15 of the 1918 Ordinance set out the prescribed wage rates for ‘country workers’ and ‘drovers’.[126] By claiming they were ‘maintaining dependants’ of drovers, station owners would not have to pay the ‘dependants’ who were working the station or the drovers who were mustering the stock.
The Government was happy to comply with this approach. Chief Protector Cook encouraged a policy of rationing, rather than wage payments, as it would maximise the Indigenous peoples on stations and minimise the Government’s responsibility[127] to provide basic goods, such as blankets, which fell to the Chief Protector under the 1918 Ordinance.[128] Treating station workers as ‘dependants’ en masse enabled the Government to bypass this responsibility. Therefore, Aboriginal Protectors did not scrutinise managers’ false characterisation of many Indigenous people on stations as drovers’ ‘dependants’ rather than workers in their own right.
Many relatives and dependants of drovers had a vital role in cattle station upkeep. Indigenous women were especially significant, but were also assisted by Indigenous children, the elderly and invalids in running the homestead, cooking, fencing, gardening, attending to dairy cattle, building roads and shelter and digging dams. White managers felt ‘they were getting a pretty fair spin’ as Indigenous women were ‘quite solicitous when they were employed’.[129] ‘Dependants’ worked long hours on necessary and demanding tasks in return for the poorest of provisions and accommodation. Indeed, they were often required to pursue hunting and collecting activities for their food.[130] Women were also made to provide ‘sexual labour’ to supplement their scarce rations, if they received anything at all.[131] While some managers claim that the dependants who stayed in ‘black camps’ on stations were unproductive,[132] Indigenous oral histories testify to the enormous sacrifices of Indigenous ‘dependants’ for their employers.[133]
However, pastoralists keenly understood the Government’s desire to reduce the cost of providing for Indigenous people and appealed to this concern when the issue of wage regulations arose.[134] They claimed that ‘dependants’ were unproductive and a great cost to stations. Pastoralists’ significant bargaining power, given their role in the Northern Territory economy, ensured wages were not introduced. Cattle station owners also had an interest in providing rations, rather than wages, to Indigenous people. It reduced their outlays and, according to Chief Protector Spencer in 1913, withholding wages meant ‘all the difference between working the stations at a profit or a loss’.[135]
The Commonwealth Government did not ensure that ‘dependants’ were correctly classified (or otherwise classified as workers) despite protectors noting that these dependants – Indigenous women, children and the elderly – were actually workers on stations.[136] The 1928 Report of Chief Protector Bleakley, which was quoted in the 1930 Commonwealth Government publication The Status of Aboriginal Women in Australia, noted that Indigenous women are ‘one of the greatest pioneers of the Territory’ but remain classed as ‘dependants’ and consequently live in conditions of ‘semi-starvation’.[137]
The Government negligently administered both the 1918 Ordinance and the 1933 Ordinance, as well as the Wards’ Ordinance, the Welfare Ordinance, and the regulations made pursuant to these instruments. It deliberately avoided enforcing regulations to allay its welfare responsibilities to Indigenous cattle station workers. These breaches give rise to potential causes of action in tort and equity. Stations could also be found liable as concurrent tortfeasors. This requires proof that each entity was responsible for causing the same damage,[138] meaning that Indigenous claimants must prove that their loss of wages was caused by the concurrent failure of station owners to pay wages and the failure of government officials to ensure that such payments occurred.[139] This would involve bringing two separate actions for the full recoupment of their wages.[140] Lack of success in one case would not extinguish another action.[141]
Potential causes of action against the Government and cattle stations as concurrent tortfeasors include:
(a) Breach of the duty of care in negligence to prevent foreseeable physical injury and pure economic loss to Indigenous workers on stations.
(b) Breach of the statutory duty (based on the 1918 Ordinance, 1933 Ordinance and Welfare Ordinance) to ensure that managers fulfilled their licence requirement to:
(i) reasonably maintain Indigenous people on stations; and
(ii) reasonably record the number of workers and dependants on stations.
It is suggested that stations and Government also owed (and breached) various fiduciary duties to Indigenous workers. The following could form the basis for actions against these entities on an individual basis:
(a) The Government’s avoidance of its welfare responsibilities towards Indigenous workers in order to reduce its expenditure and social responsibility.
(b) The Government’s failure to properly administer trust accounts set up for Indigenous workers.
(c) Stations’ practice of ‘booking down’ (which could form the basis of a constructive trust) and the Government’s complicity in this.
With a time lapse of over 40 years statutory limitations pose a threshold hurdle for claimants. For cases brought against the Commonwealth in the Northern Territory, the Limitation Act 2000 (Northern Territory) (‘Limitation Act’) applies by operation of section 79 of the Judiciary Act 1903 (Cth). Section 12(1)(b) of the Limitation Act provides that actions are not maintainable after the expiration of three years from the date on which ‘an action founded on tort including a cause of action founded on a breach of statutory duty’ accrues. However, section 44(1) of the Limitation Act enables a discretionary extension of the time period within which an action may be launched. Under section 44(3) facts ‘material to the plaintiff’s case’ must have been ascertained after the expiration of the limitation period and the action must have been instituted ‘within 12 months after the ascertainment of those facts’; or ‘the plaintiff’s failure to institute the action within the limitation period’ must have been a result of the ‘representations or conduct of the defendant’ or representative. An extension is also possible where it would be ‘just to grant the extension of time’.
In order to satisfy the requirements of section 44(3) claimants could argue that their awareness of the ‘facts’ of their cause of action arose as a result of seeing research on the misappropriation of their wages. Alternatively, it is arguable that the time delay is a result of the Government and cattle corporations imbuing workers with the impression that they were not entitled to wages and not informing them that they were withheld or misused. The moral injustice of denying such an application may also influence a court’s decision in this regard.
It is suggested that actions against smaller or less profitable stations would benefit from joining the Government as co-defendants. This is for moral, as well as monetary reasons. Similarly, cases should be brought against the (past and present) corporations ultimately responsible for the conditions on cattle stations to ensure that adequate reparatory payments are made in the event of successful litigation. This requires claimants to establish the vicarious liability of the relevant corporate entities. In New South Wales v Lepore[142] the High Court affirmed the ‘control test’ for establishing vicarious liability, such that an employer’s liability for the wrongs of their employees is determined by the degree of control that employer exercises over the employee in question.[143] Ted Evans has noted that station managers were accountable exclusively to owners,[144] who had to authorise expenditures as small as $50. This indicates that station owners exercised fairly strict control over managers and the payments they made. This no doubt stretched to the supervision of wages (or lack thereof).
Extant corporations such as the Vestey Group and LJ Hooker are potential subjects in an action alleging vicarious liability. These corporate entities held much of the pastoral property in the Northern Territory (including the Wave Hill, Victoria River Downs, Rosewood, and Legune Stations)[145] and employed many Indigenous workers.[146] According to Patrol Officer Evans it was the larger stations that were most likely to breach employment regulations.[147] Indeed, much of the evidence referred in this article involves stations owned by the Vestey Group, which has ongoing transnational operations.[148] It is worth noting that class actions against companies responsible for unpaid and forced labour have developed international momentum. In the United States and South Africa plaintiffs have sought restitution, compensatory and punitive damages, and accounts of profits from companies who employed slaves.[149] While these cases were ultimately unsuccessful they focused courts’ attentions on slavery-based corporate profiteering, which has in turn led to settled compensation schemes.[150]
This section assumes, for heuristic purposes, the imputation of potential liability to Government and corporations. Establishing a cause of action in negligence requires proof, on the balance of probabilities, that a defendant owed a duty to take reasonable care to prevent harm or damage to the claimant, and that this duty was breached by the alleged negligence. It must then be shown that this breach caused the relevant damage, and that damages are materially assessable.[151] Establishing liability under common law negligence does not require proof of statutory authorisation, though a claim may be mounted against a statutory authority.[152] The negligent administration of stations by corporate entities and Government engendered both physical injury (from malnutrition and work injuries) and pure economic loss (through the denial of wages).
Pure economic loss involves a loss of opportunity, rather than actual damage to person or property.[153] It requires establishing the probability of what would have occurred if the breach had not happened. For Indigenous plaintiffs this requires assessing the quantum of wages to which they were entitled.
A claim for physical injury requires proof of pain and suffering, loss of amenities of life, and loss of earning capacity. Damages seek to restore the injured plaintiff to the circumstances prior to the negligence through payments for medical treatment and rehabilitation, and restitution for the loss of past and future earning capacity.[154] Personal injury can be assessed cumulatively if similar physical harm is inflicted on the plaintiff on separate occasions.[155]
In Perre v Apand[156] the High Court laid down the requirements of a successful claim for the tort of pure economic loss. Justice McHugh (with whom the majority agreed) claimed that this species of tort requires the damage concerned to have been reasonably foreseeable; that the risk involved was known to the defendant; that the potential victims of the negligent behaviour were part of a determinable class; and, the plaintiffs were vulnerable to the impact of the defendant’s actions.[157] In later cases particular emphasis has been placed on the vulnerability criterion.[158] Vulnerability entails ‘the plaintiff’s inability to protect itself from the consequences of a defendant’s want of reasonable care’.[159] It is likely to arise when the defendant has assumed responsibility and the plaintiff relies on this responsibility.[160]
There is sufficient evidence that station owners breached their duty of care to prevent Indigenous workers’ economic loss. Workers were vulnerable to station managers (and their corporate controllers) and unable to exercise self-protection as they were given no input concerning employment licences, and no means of redress for the breach of the terms of such licenses. There can be little doubt that managers had knowledge of the risk of economic loss, particularly in relation to the ‘booking down’ system. Former cattle station workers are an ascertainable class of plaintiffs, which diffuses the indeterminacy argument against finding that a duty existed to prevent economic loss. While Indigenous workers obviously suffered the physical loss of their wages, ancillary losses arose from this. The lack of an ascertainable monetary value on their labour prevented Indigenous workers assessing their earning capacity and seeking more lucrative employment.[161] Official records attest to this underlying purpose.
Northern Territory Administrator in 1949, A R Driver, stated that not paying wages prevented labour mobility and enforced ‘a system of serfdom…to maintain strict control of a subject people’.[162] Commonwealth Minister for Territories Paul Hasluck recognised that stations issuing rations (in lieu of wages) was ‘the best way of holding the workforce’.[163]
The other basis on which a claim that stations breached their duty of care could be brought relates to physical injury. This duty is owed to another when exposure to the risk of injury by an act is reasonably foreseeable.[164] It was reasonably foreseeable to station owners that if they did not provide adequate rations, workers would suffer physical harm, including illness arising from malnutrition. It was also foreseeable that if station managers did not attend to workplace injuries workers might have become incapacitated. Indigenous workers have testified that each of these forms of injury arose as a result of inadequate care.[165] The existence of such a duty to Indigenous workers is strengthened by the fact that the plaintiffs were a vulnerable class and at the mercy of the cattle station for their livelihood.[166]
The Government had a duty of care to ensure that workers did not suffer physical injury or pure economic loss. In 2002 the High Court considered government liability in Barclay Oysters Pty Ltd v Ryan and others.[167] The Court held that to establish a duty of care, a government or its authorities must have more than foresight, capacity to act on the part of a defendant and a statutory power to supervise: a factor of ‘control’ is of fundamental importance in discerning a duty of care on the part of a public authority. This will be more apparent where plaintiffs are vulnerable to the proper exercise of government authority. The Court in Barclay Oysters found that the Government was not responsible for an oyster contamination that injured the plaintiffs because of Government policy allowing self-regulation of the oyster industry, and the lack of any discernible relationship between the Government and the consumers of oysters. It is suggested that potential stolen wages claimants could demonstrate Commonwealth control more clearly than the plaintiffs in Barclay Oysters. The employment licences the Government negotiated with station managers clearly indicate control over workers’ conditions. Licences covered the maintenance and payment of workers in accordance with the rates set down in government regulations. The Government directly controlled the renewal or revocation of employment licences for Indigenous workers.[168] Indeed, Ministers for the Territories and the Interior had an acute awareness of, and influence over, Indigenous labour conditions. Indigenous labour was vital to the development of the Northern Territory cattle industry.
The test for a breach of duty is whether the defendant acted like a reasonable person in the circumstances. The failure to provide adequate rations and living conditions for Indigenous workers clearly represents a breach of managers’ duties to prevent physical injury. The failure to pay wages constitutes a clear breach of the duty not to cause economic loss.
Material evidence of these breaches can be found in deliberate attempts to avoid compliance with regulations that governed Aboriginal living conditions. Former Patrol Officer Evans claims that in the late 1940s and early 1950s managers who worked from the cities, generally Sydney, would make an effort to avoid being at the station when they were aware that officers would be visiting.[169] Managers made it difficult for officials to check if wages were being ‘dispersed correctly’ and consequently it was exceptional for Indigenous workers to be paid out.[170] Evans described it as ‘doing battle with the pastoral management in respect of the conditions of employment’,[171] particularly on stations owned by the Vestey Group.[172] He stated that managers did not adhere to government policy because ‘they were accountable to Vestey’s, they weren’t accountable to anybody else’.[173] This resulted in a ‘continuous battle between management and myself on the conditions in which the Aboriginal found himself’.[174]
The practice of booking down is further evidence of the stations’ breaches of their duties of care. Under this system wages were withheld and credited to station stores which grossly inflated their prices. These measures were undertaken by managers with a view for stations to profit.[175] The motivation for booking down wages and for avoiding government officials was clearly profit maximisation. Unlike Abadee J’s finding in Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor[176] that the impugned missions were acting in the best interests of the plaintiffs,[177] there is no indication that cattle stations were acting in the best interests of the plaintiffs by breaching their duty.
The Government breached its duty of care in relation to both physical injury and economic loss through negligent policing of the conditions on stations. Inspections were required to give effect to employment licences in accordance with government regulations. However, patrol officers and protectors rarely visited stations.[178] This was partly a result of constraints imposed by inadequate staff and the enormous distances between stations, though it must be said that even in spite of these obstacles the cancellation of licenses was extremely rare; ergo, they did not do ‘all that was required of them’.[179] The Acting Director of Native Affairs, Carrington, stated in 1945 that ‘no application for exemption from wages could reasonably be refused under existing provisions’.[180] In relation to economic loss the Government breached its duty by not properly inspecting stations to ensure that workers were properly classified, that rations were duly provided, and that stations did not inflate store prices. The Government was also aware that the licence system would prohibit Indigenous people from entering external labour markets (ie other cattle stations) where they could have garnered higher wages.[181]
The doctrine of causation holds that the defendant’s breach must have caused the damage sustained by the plaintiff. Causation can be guided by the ‘but for’ test, which posits that but for the negligence of the alleged tortfeasor the relevant damage would not have been sustained. This, however, is not ‘a comprehensive definitive test’.[182] In March v Stramare[183] the High Court stressed that there needs to be a factual nexus between every component of the defendant’s act and the damage suffered.[184] According to the Court outcomes should be based on ‘policy considerations’ rather than set formulas.[185] It is clear that Indigenous workers’ economic losses occurred as a direct result of the deprivation of wages by station managers. A causal relationship between personal injury and the conduct of managers may be more difficult to establish, as will any case against the Government. Nevertheless, the emphasis on policy in Stramare indicates these obstacles may be surmountable.
A clear causal link exists between the withholding of workers’ wages (or their conversion into store credits) and the economic loss suffered by Indigenous people on cattle stations. Setting aside time issues, station managers can thus be seen as directly liable for the tort of pure economic loss.
In terms of the negligence claim it is submitted that workers’ ongoing health problems (which prevented them from seeking more gainful employment) were caused by managements’ failure to ensure the existence of adequate working conditions. While it is a reasonable inference that poor hygiene, accommodation and food standards also contributed to the endemic health problems among Indigenous workers it is suggested that establishing a clear causal link in this respect will be much more difficult.
There is cogent evidence supporting the argument that the Government caused both physical injury and pure economic loss to Indigenous workers because of their failure to enforce the regulations they had imposed. Gordon Sweeney, who visited ‘practically every cattle station, every mining settlement, every farm and every police station in the Territory’ while carrying out a Road Survey for the North Australian Commission after World War II, said ‘no wages were paid, no housing was provided’. He attributed this to the Government bowing to the economic power of the stations:
The cattle stations were a world to themselves. They were the greater part of the Territory and they were the most important industry in the Territory and therefore most of the Administration bowed to the needs of cattle stations.[186]
However, proving causation on the part of the Government is a more onerous burden because stations may have refused to comply with directives notwithstanding government pressure. Nonetheless, the Government’s ability to cancel licenses for breach may prove to be a sufficient basis for imputing causal responsibility.
A claim for breach of statutory duty is actionable where the defendant has breached a duty imposed by a statute or regulation and the legislature has shown an intention to confer a statutory remedy.[187] Specific intent on the part of the legislature to provide a remedy in tort is not required.[188] However, it must be demonstrated that the defendant owed a positive duty under the statute or regulation, and that the plaintiff has an enforceable right to performance of the statutory duty. These factors may be more easily established where they affect vulnerable groups who would otherwise be exposed to specific danger.[189] Indigenous people may well fall within this category. A claimant must demonstrate that the harm suffered was within the class of risks at which legislation was directed, and there must be proof that the defendant breached their duty and caused the harm for which damages are sought.[190] The tort does not require a breach to be inflicted negligently or intentionally.[191]
None of the relevant Ordinances[192] explicitly conferred a right to compensation for a breach of statutory duty. However, such a right might be inferred by reference to the absence of alternative remedies and the class of people the statute is intended to protect,[193] particularly given the lack of alternative legal avenues for Indigenous workers and the fact that they constitute a narrower class than the general public.
It is submitted that the Commonwealth owed a statutory duty towards Indigenous workers because it assumed responsibility for their welfare with the passing of the 1911 Ordinance. Evidence for this is found in the Commonwealth’s revision of the previous South Australian legislation to better ensure the welfare of Indigenous people. Pursuant to the various Ordinances the Government passed regulations specifically addressing the needs of Indigenous workers. In doing so it imposed a duty on itself to cancel licences where regulations were breached. Indigenous cattle workers were clearly a foreseeable class of plaintiffs during this time as they constituted a large section of the Indigenous population. The specific statutory duties owed to Indigenous cattle station workers that may be imputed to the Commonwealth are as follows:
The following duties can be imputed to stations:
The specific nature of the protective legislation suggests that Indigenous workers had a right to the proper performance of the duties owed by both stations and the Government. In Cubillo v Commonwealth[199] the Federal Court was willing to imply that such a duty existed towards Indigenous children.[200] While the vulnerability of children may distinguish it from a case for stolen wages, the fact that Indigenous workers were exploited for their labour and were under government control may be sufficient to ground an action, particularly given that they were the specific target of the regulations in question.
There can be little doubt that the harm suffered by Indigenous workers was within the class of risks the legislation was intended to prevent, nor that the potential defendants breached this duty and caused the actionable harm. In Cubillo O’Loughlin J was unwilling to find a breach of statutory duty where the Director’s duty was broadly ‘protection’.[201] By contrast, the Commonwealth’s statutory duties to Indigenous workers were stated specifically in the various Ordinances. The duties were breached through the Commonwealth’s failure to ensure proper maintenance of Indigenous people on stations; by not bringing legal proceedings despite an awareness of the fraudulent ‘booking down’ system;[202] and, in failing to cancel licences despite the inadequate care of Indigenous workers.[203]
The Commonwealth’s failure to bring legal actions to protect Indigenous workers, pursuant to its statutory obligations theoretically makes a claim for mandamus more appropriate than a private action in tort. In practice, though, it is unlikely to prove particularly useful. Mandamus compels an officer of the Commonwealth to perform his or her duties.[204] A claim for mandamus in the Federal Court requires an applicant to first demand performance of the public duty by the officer. This must have been followed by a refusal on the part of the decision–maker to comply with the demand.[205] Where there is no express demand and refusal, it may be implied from conduct.[206]
Indigenous workers do not appear to have made express demands to the Aboriginal Protector (who was responsible for executing the duty) to bring legal proceedings against cattle stations or other Commonwealth officers. The partiality of officers to station managers and against Indigenous workers would have dissuaded workers from making this demand. Further precluding express demands would have been the concerted efforts by officers and station managers to conceal their rights. It may be implied that the lack of bargaining power by Indigenous workers’ meant they were reliant on the Protector to initiate proceedings. However, this is not so much a demand as an inability to demand performance. Were the Court of the opinion that this satisfies the first limb, the issue becomes that of an implied refusal by the Government to accede to demands for performance. This could be inferred from the Government’s persistent refusal to comply with Indigenous workers’ demands.
Even if the Court found in favour of Indigenous claimants in respect of the threshold requirements of a mandamus claim it would appear likely that such an action would fail because the duty must be performed within a reasonable time, otherwise it may be presumed to have lapsed.[207] To prevent this presumption, it would have been necessary for the Protector to issue a definitive statement as to whether or not they would have acquiesced to the workers’ demands. In the absence of such evidence it is difficult to subject the decision–maker to an administrative appeal.[208] It seems impractical for Indigenous people to demand that the Commonwealth perform its duty to bring legal proceedings after the termination of the employment relationship. For this reason it is suggested that private actions in tort offer a more viable means of redress and restitution for former cattle station workers.
A fiduciary duty is an obligation on the part of a fiduciary to act in the interests of its beneficiary. It is a product of a fiduciary relationship, which arises where there is an undertaking to act for, or on behalf of another person.[209] It is generally held to apply when there is ‘an understanding to act in the interests of another person, an ability [for one party] to exercise a power or discretion that may affect the rights of another’ or a relationship of ‘inequality’, ‘dependency and vulnerability’.[210] Justice O’Loughlin in Cubillo observed that, depending on the facts, fiduciary duties may arise from a relationship that has been created by statute.[211] While Mabo v Queensland (No 2)[212] indicated the theoretical possibility of the Government being held in breach of fiduciary duties[213] such a breach was not actually upheld in that case.[214] Notwithstanding, it is suggested that the existence of such a duty is worth exploring in relation to stolen wages.
First, it is necessary to establish that a fiduciary relationship existed between the Commonwealth Government and Indigenous workers. The relationship can be seen to bear the factual qualities of a fiduciary relationship for the following reasons: the Aboriginal Ordinances 1918–57 represented an undertaking that the Government would act in the interests of Indigenous workers; a relationship of inequality, dependency and vulnerability existed on the part of Indigenous workers because of the capacity of governments to enter into employment licences their behalf; and, Indigenous workers had no bargaining power or means of redress.[215] Second, it is suggested that the Government held the specific fiduciary duties of ensuring the general welfare of Indigenous workers, and also of properly administering the trust accounts into which many workers’ wages were paid. While the existence of a fiduciary duty was denied in Williams (No 2) it is arguable that the Government’s much narrower and more clearly defined obligations to Indigenous workers (in comparison to the alleged obligation to maintain general well-being in Williams (No 2)) would engender a finding in favour of the existence of the duty.
Fiduciaries have a duty to avoid conflicts between their interests and the interests of a beneficiary, and to avoid profiting as a result of their position as fiduciaries. The purpose of these rules is to ensure that the fiduciary acts at all times in the interests of the beneficiary.[216] The Commonwealth, as a fiduciary, breached its duties by allowing stations to provide rations rather than wages in order to avoid its own welfare responsibilities; by failing to inspect stations; and, by failing to enforce protective regulations. In pursuing its own interests to minimise expenditure the Commonwealth engaged in a conflict of interest and profited from its role as fiduciary. Marsh, of the Commonwealth Department of Territories, claimed ‘the pastoralists in maintaining aboriginal dependants are doing the job which would otherwise fall to the Government’.[217]
It is arguable that the Government also declined to cancel licences for fear that Indigenous cattle station workers would become its responsibility. Askins noted the steady increase in the licences issued by the Chief Protector in 1930, stating that ‘[p]rotectors were eager to see that natives were profitably employed’.[218] In addition, Government’s interest in the profitability of stations gave owners enormous influence over Government decisions regarding Indigenous workers. The Government consistently sought the approval of the Northern Territory Pastoral Lessees’ Association before it pursued any substantive amendments to Indigenous labour policy.[219] This led humanitarians to conclude that licences in fact protected the pastoralist rather than the Aboriginal worker.[220]
For workers whose earnings were placed in Government administered trusts a possible cause of action exists against the Government based on the mixing of those funds with consolidated revenue. These funds for Indigenous workers as beneficiaries were managed by the Government as a trustee. Kidd and Mudaliar suggest the Government owed a duty as the financial trustee of workers’ earnings to keep proper accounts.[221]
The Government breached its duty by failing to implement checks or systematic inspections of workers’ earnings to ensure that massive financial loss did not occur. This constitutes maladministration causing loss to the trust fund. Breaches also occurred through the unauthorised mixing of trust funds with consolidated revenue. There is evidence of the misappropriation of funds placed in Indigenous accounts under the Apprenticeship Scheme, Wards’ Ordinance and Social Services Consolidation Act 1947 (Cth). These misappropriations are actionable breaches of trust causing loss to the Indigenous beneficiary.
Given that the Government did not authorise payment to Indigenous workers in the form of store credits after World War II, the ensuing underpayment can be seen as unjust enrichment for cattle station owners. The owners’ retention of Indigenous wages and their conversion into store credits should be seen as creating a constructive trust in favour of workers.[222] This is in line with their remedial purpose in effecting the restitution of property, the removal of unjust enrichment and the enforcement of trustee’s equitable duties.[223] Constructive trusts are an appropriate remedy for Indigenous station workers (the beneficiaries) since station owners did not otherwise intend to create an express trust in favour of cattle station workers.
The aforementioned domestic causes of action provide strong grounds for the remuneration of former Indigenous cattle workers. However, the experience of the Stolen Generations shows that subjective issues of statutory interpretation and the admissibility of evidence may lead to unfavourable verdicts when claims are litigated. This is especially the case when legislation gives wide discretion to the Government. International law, on the other hand, provides more categorically for the rights of Indigenous people and workers. Therefore, there may be a stronger basis in international law for finding that the non-payment of wages to Indigenous cattle workers was illegal, though it is unlikely that any such finding would involve restitution or damages.
Since the early 20th century, Indigenous organisations have been cognisant of Australia’s failure to meet obligations under the Conventions of the ILO. In the 1940s a range of complaints were presented to the United Nations Association of Australia in relation to the lack of cash wages paid to Indigenous workers.[224] Indigenous activists such as Daisy Bates and Mary Montgomerie Bennett also alleged that Australia had violated the Slavery Convention[225] through the abysmal conditions on cattle stations.[226]
The most notable Convention relating directly to Indigenous workers that Australia ratified before the 1960s is the Convention concerning the Creation of Minimum Wage-Fixing Machinery 1928,[227] which Australia ratified in 1931. Article 1 obliges States to create machinery for minimum wage rates. Article 3(2) requires that representatives of workers shall be consulted in this process. Article 4 establishes a system of supervision and sanctions ensuring wages are not paid at less than minimum rates, and workers are informed of these rates. The Commonwealth Government did not ensure that these obligations were met on Northern Territory cattle stations. Indigenous workers did not have access to minimum wages due to the ration system. The poor quality of the rations meant that they were not, in any event, equal to the minimum wages otherwise prescribed. Further, workers were not informed of the conditions of their licences, and were not consulted in the process of their formation.
The Universal Declaration of Human Rights 1948 (‘Declaration’) enshrines basic working standards.[228] As a resolution of the United Nations General Assembly it has been seen as having important symbolic value, but not binding status. An alternate interpretation is that the provisions of the Declaration have legally binding force by virtue of their status as customary norms of international law.[229] This may include the provisions on labour rights, if not the entire document.[230] Article 23(1) provides a right for ‘free choice of employment and to just and favourable conditions of work’. Article 23(2) further states that ‘[e]veryone, without any discrimination, has the right to equal pay for equal work’. The conditions on Northern Territory stations meant that Indigenous drovers were paid less than their non-Indigenous counterparts, and without the right to negotiate terms. Their dependants were made to work without any remuneration whatsoever.
In 1932 Australia became a party to the Forced Labour Convention.[231] This treaty creates obligations to suppress forced or compulsory labour in all its forms.[232] Articles 4(1) and 6 prohibit public authorities from imposing ‘compulsory labour for the benefit of private individuals, companies or associations’. Certain exceptions, such as military service and penal servitude are permitted, but they must be carried out by the public authority and not placed at the disposal of private individuals or companies.[233] It is contended that the Australian Government breached these obligations by knowingly providing licences to cattle station managers to employ an infinite number of Indigenous people in spite of workers’ practical inabilities to leave stations to which they belonged. According to the Forced Labour Convention sanctioned forced labour must comply with certain minimum standards including: the provision of cash remuneration at prevailing rates for voluntary labour;[234] not deducting rations from wages;[235] providing workers’ accidents compensation;[236] and, supplying hygiene facilities and accommodation.[237] If the ILO accepted that Indigenous workers were forcibly employed it appears that a strong case could be put that the Government fell short of meeting these minimum requirements.
An application to the ILO on behalf of former cattle station workers would be heard by the Organization’s Governing Body. Article 24 of the ILO Constitution requires a representation to be filed by inter alia, ‘an industrial association of workers’ against a convention ratified by a member State of the ILO. The Australian Council of Trade Unions could perform this task, having historically brought complaints against Commonwealth legislation.[238] Alternatively, the Australian Workers’ Union (AWU), which represents Northern Territory cattle hands, may be an appropriate body. The AWU is the successor to the North Australian Workers’ Union that made an application on behalf of Indigenous people in the Equal Wages Case.[239]
Australia was a founding member of the ILO in 1919. Accordingly, the ILO has jurisdiction to hear representations against the Australian Government. Article 24 of the ILO Constitution requires a state to have ‘failed to secure in some respect the effective observance within its jurisdiction of the said Convention’,[240] meaning the breach needs to be imputed to the State[241] or one of its agents.[242] The Government could argue that the Chief Protector or Director for Native Affairs had responsibility for Indigenous workers. However, it is possible to impute responsibility to the Government since the Protector’s duties were mandated under the Aboriginal Ordinances 1918–57. It is irrelevant under international law whether the organs of the State (such as the Aboriginal protectors) acted in excess of their governmental duties,[243] negligently,[244] or in contravention of State instructions.[245] Provided they are organs of the State, the State will be deemed responsible. Given that Aboriginal protectors and directors of Native Affairs and Welfare were agents of the State, liability may be consequentially imputed to the Government.
As a general rule international law requires that the complainant has exhausted domestic remedies before bringing a complaint to an international body.[246] Article 44(b) of the International Law Commission’s Draft Articles on State Responsibility state that if the rule of exhaustion applies, applications against a State are inadmissible where ‘available and effective’ domestic remedies have not been exhausted.[247] This suggests that at least some domestic causes of action must be pursued prior to bringing a claim under international law.
It is unlikely that time limitations would bar a claim to the ILO since ILO provisions do not appear to set a time limit within which a complaint must be brought. Nor, under international law, is there a presumption that after a period of time the claim is barred. The ICJ in Certain Phosphate Lands in Nauru[248] allowed a case to proceed against Australia despite Australia arguing that a State responsibility claim relating to the period of its joint administration of the Trust Territory for Nauru (1947–1968) could not be brought decades later.[249] The Court stated that the ‘relevant circumstances’ of each case will determine whether the passage of time renders an application inadmissible.[250] The ILO Governing Body would presumably consider a number of factors in deciding whether an application is time barred, including: whether it would prejudice the respondent State;[251] whether the injured party ‘validly acquiesced in the lapse of the claim’;[252] whether there was unreasonable delay in bringing the claim;[253] whether it would be procedurally fair;[254] the amount of time needed to collect evidence;[255] and, the importance of the rights involved.[256] Given the Government’s role in the time delay it is likely that a union application to the ILO regarding stolen wages would be accepted.
If an application was accepted a tripartite committee of three members of the ILO Governing Body would examine all evidence, including the Australian Government’s response. The committee would then submit a report to the Governing Body on the legal aspects of the case and provide recommendations,[257] which could include ‘full reparations’ where a state’s violation of its obligations caused the claimant injury or loss.[258] Such recommendations may carry persuasive force in a compensation claim by Indigenous people. In the past, adverse findings against Australia by the ILO have led the Australian Government to repeal impugned legislation.[259] More recently, the Government has been reluctant to reverse legislation at the behest of international law.[260] However, recommendations for reparations may provide the impetus for a Commonwealth compensation scheme.
At the beginning of this article it was suggested that in spite of the domestic and international legal remedies potentially available to Indigenous workers who were deprived of their wages, the most desirable means of addressing past and present injustices is through the establishment of a Commonwealth Government compensation scheme. Such an initiative would involve recognition of the moral, as well as economic injustice suffered by Indigenous workers. It would also benefit the Government by removing at least some of the incentive for many claimants to bring lengthy and potentially embarrassing claims against the Government. This section considers the compensation schemes enacted in New South Wales and Queensland, and suggests that the former constitutes a more equitable model for the Commonwealth.
Queensland’s compensation scheme has been the subject of sustained criticism from Indigenous bodies. The 2006 Senate Report on Stolen Wages reflects the concerns raised by Indigenous groups. It urges ‘the Queensland Government [to] revise the terms of its reparations offer’ in Recommendation 6,[261] because the scheme provides Indigenous people with a token payment rather than a compensatory sum. In essence the scheme involved the payment of between $2000 and $4000 to individual claimants alive at the date of its inception.[262] This totalled $55.6 million in reparations between May 2002 and January 2006 to Indigenous people whose wages were held in trust accounts.[263] It is estimated that some workers lost wages of up to $400,000, while the aggregate loss is said to be in excess of $500m.[264] The scheme has also been criticised for failing to allow ‘derivative claims’ by the families of deceased workers, which would recognise the inter-generational detriment of unpaid wages.
One of the key shortcomings of the Queensland scheme is that Indigenous claimants must relinquish future rights to litigation. Claimants are made to sign an indemnity agreement waiving the right to recovery of full entitlements. Unsurprisingly, Indigenous communities reacted scornfully to Queensland Aboriginal and Torres Strait Islander Policy Minister, Judy Spence’s claim that the scheme is ‘not a replacement amount for any money which people may allege or believe they are owed, but a reconciliation gesture which recognises past injustices’.[265] The removal of litigation rights suggests the opposite: that the scheme is in fact ‘a replacement’. The limited Queensland Government funds set aside to support the scheme indicates that it is also far from ‘conciliatory’.
If a monetary scheme does not expressly involve compensatory payments then it must provide a return commensurate with workers’ losses. This requires consideration of individual worker’s contribution based on the length of their employment, their degree of skill and the seniority of their position. These factors should also be taken into account in determining ongoing losses from employment injuries. The injustice of standardised payments was seen in Commissioner William Carter’s ruling in Bligh and Ors v State of Queensland.[266] The flat payout of $7,000 to seven Palm Island workers who were underpaid by the Queensland Government arguably breached the Racial Discrimination Act 1975 (Cth)[267] in its presumption of commonality among the workers. The ruling overlooked evidence attesting to different jobs, levels of responsibility, conditions and employment periods among the workers.[268] According to McDougall this amounted to compensation discrimination for belonging to an Indigenous community.[269]
The New South Wales Aboriginal Trust Funds Repayment Scheme, which commenced in 2005, has had a more positive reception. The New South Wales scheme involves full reimbursement at prevailing rates.[270] There are also no time limitations on claims, giving claimants sufficient time to have freedom of information requests processed and to develop cases in response to new records surfacing. New South Wales claimants also retain their rights to litigate to recover additional moneys owed. While ideally compensation schemes should alleviate the need to litigate it is important that this right is not stripped from potential claimants
In spite of its positive aspects the New South Wales Scheme has been criticised for lacking procedural transparency.[271] The considerations behind awarding payments have not been stated categorically, nor has the procedure where written records are not found. In saying this, the New South Wales Government has made a commitment to search for records,[272] a marked improvement on the Queensland scheme where the Government failed to take on this responsibility. Rosalind Kidd argues that governments have a fiduciary duty to provide ‘full and frank disclosure ...of all material facts’ contained in government records relating to Indigenous people’s money.[273] In 2000, the United States Court of Appeals for the District of Columbia Circuit found, in relation to the Individual Indian Monies Trust Fund (amounting to $40 billion of unpaid proceeds from leases and enterprises on treaty land since 1887), that the Government’s failure to keep accurate accounts constituted a breach of the ‘most basic’ fiduciary duty,[274] and that the Government was required to disclose all trust property.[275] It is suggested that the Australian Government should bear the onus of searching for written evidence to support Northern Territory Indigenous workers’ claims. Correspondingly, the Government should also bear the burden of proving that the full value of wages was paid.
To supplement written records, or where they are unavailable, oral evidence should be admissible. The New South Wales Government has provided assurances that the compensation scheme’s administrators will hear oral testimony to substantiate claims.[276] However, the Government is yet to establish the type of setting in which oral evidence will be heard, the weight it will be afforded, and how such testimony will be honoured. Bob Haebich, who represented the Palm Island workers in Bligh, has advocated the establishment of a special tribunal in which claimants can have their case heard.[277] This is an important measure given the gaps in the New South Wales records.[278] Such gaps are equally apparent in the Northern Territory. While oral evidence is useful in supplementing written records it is suggested that this erroneously presumes the accuracy of such records.[279] Thus, forums of the type suggested by Haebich should involve an interrogation of discrepancies between written records and oral testimony, rather than an inherent acceptance of the veracity of written records.
Extant corporations that exploited Indigenous workers and their families in the Northern Territory are morally obliged to provide records containing the names of workers, the various jobs those workers held, the wages that were paid, the prices at station stores and child endowments. These corporations should be made to pay funds into a Government–initiated scheme in recognition of the benefits they accrued from unpaid Indigenous labour. This is particularly so in relation to groups such as LJ Hooker which remain active in Australia. Further, and in light of the Venezuelan Government’s 2005 repossession of land illegitimately acquired by the Vestey Group,[280] it would behove corporations to consider pre–emptive compensatory action. Such measures are not only morally appropriate, but could also enable corporations to avoid the sorts of damaging publicity cast upon James Hardie for its continual obfuscations regarding the New South Wales asbestos compensation scheme.
It is suggested that, in addition to a Commonwealth Government compensation scheme, a Commission should be established to comprehensively examine the evidence of Indigenous people, governments, and corporations, with a view to making findings and recommendations on the best way to compensate unpaid Indigenous workers. While monetary compensation would be a major aspect of this, other measures such as land access may be more appropriate. However the process is handled it is vital that Indigenous people play a role in determining the form of reparations for themselves and their communities.
This article began by mapping the extraordinary contribution of Indigenous workers to the Northern Territory cattle industry, the deplorable failure of cattle station owners to remunerate them, and the Government’s complicity and negligence in failing to rectify the situation. Pursuant to the interest expressed by a number of former workers in running a test case to recover stolen wages this article has considered the domestic and international avenues that may be open to claimants. While such claims are fraught with difficulties it is contended that reasonable grounds exist for claims in tort and equity against station owners and the Federal Government, while an international remedy (in the form of a recommendation) could be sought from the ILO. Nevertheless, it is contended that the best means of addressing the wrongs perpetrated against Indigenous workers is through the establishment of a voluntary compensation scheme on the part of Government and responsible corporations. The first step in this must be formal implementation of the Senate Committee’s recommendation that consultations with Indigenous people begin immediately in tandem with sustained archival research.[281] The challenge will be for the Government to create a scheme that is truly a conciliatory gesture by involving Indigenous communities in the process of delivering wage justice.
* Faculty of Law, University of Sydney. The author wishes to thank Dr Rosalind Kidd, Mr Stephen Gray, Dr Fleur Johns, Mr Jamie Glister, Professor Chris Cunneen, Mr Luke Taylor, Ms Julia Mansour and the anonymous referees, for their invaluable feedback.
[1] Rosalind Kidd, Stolen Wages – A National Issue, Speech delivered at the Garma Festival, Gulkula, North East Arnhem Land, 9 August 2004, <http://www.griffith.edu.au/centre/cpci/pdf/ros_kidd_garma.pdf> at 11 April 2007. See also, ‘A legacy of deceit and fraud’, Courier-Mail (Brisbane) 6 July 2002, 2.
[2] Loretta de Plevitz, ‘Working for the man: wages lost to Queensland workers ‘under the Act’’ [1996] AboriginalLawB 25; (1996) 3(81) Aboriginal Law Bulletin 4, 4–8; Rosalind Kidd, ‘Abuse of Trust: The Government as Banker in Queensland’ [2003] IndigLawB 48; (2003) 5(26) Indigenous Law Bulletin 13, 13–16; Sanushka Mudaliar ‘Stolen Wages and Fiduciary Duty: A Legal Analysis of Government Accountability to Indigenous Workers in Queensland’ (2003) 8(3) Australian Indigenous Law Review 1, 1–11.
[3] Kidd, above n 1, 2.
[4] [1966] CthArbRp 148; (1966) 113 CAR 651 (‘Equal Wages Case’). This decision of the Commonwealth Conciliation and Arbitration Commission led to the 1968 Pastoral Award when equal wages were effectively introduced.
[5] Anon (1969), ‘Give us Stronger Vehicles and Build Better Roads’, NAT/DEV, 1, 4, 27–29, Charles Darwin University Special Collection (Ephemera).
[6] Standing Committee on Legal and Constitutional Affairs, Australian Senate, Unfinished business: Indigenous stolen wages (2006) ‘Terms of Reference’ <http://www.aph.gov.au/senate/committee/legcon_ctte/stolen_wages/tor.htm> at 10 April 2007.
[7] Standing Committee on Legal and Constitutional Affairs, Australian Senate, Unfinished business: Indigenous stolen wages (2006) ‘Public Hearings and Transcripts’ <http://www.aph.gov.au/senate/committee/legcon_ctte/stolen_wages/hearings/index.htm> at 13 April 2007.
[8] Standing Committee on Legal and Constitutional Affairs, Australian Senate, Unfinished business: Indigenous stolen wages (2006) [6.69]–[6.70] <http://www.aph.gov.au/senate/committee/legcon_ctte/stolen_wages/report/report.pdf> at 13 April 2007.
[9] Ibid, Recommendation 5.
[10] See also, ABC Radio Alice Springs, ‘Indigenous Stolen Wages with Maurie Ryan’, Barry Nicholls, 11 December 2006.
[11] See Andrew Altman, Arguing About Law: An Introduction to Legal Philosophy (1996) 32.
[12] John von Doussa, ‘Launch of Trustees on Trial – recovering the stolen wages by Dr Rosalind Kidd’, Speech delivered at the Brisbane Writers Festival, 14 September 2006 <http://www.humanrights.gov.au/about_the_commission/speeches_president/20060914_trustees_launch.html> at 10 April 2007.
[13] Pursuant to the Welfare Ordinance 1953 (Cth) (gazetted in 1957) which declared ‘full blood’ Indigenous people wards: Russell McGregor, ‘Avoiding ‘Aborigines’: Paul Hasluck and the Northern Territory Welfare Ordinance 1953’ (2005) 51(4) Australian Journal of Politics and History 513, 520.
[14] As recommended by the Standing Committee on Legal and Constitutional Affairs, above n 8, [4.48].
[15] The workers of these employers had their wages mostly placed in government trust accounts: V J White (Secretary, Native Affairs Branch), Aboriginal Trust Account Investigation, 12 June 1940, 4–6; National Archives (Darwin) CRS F1 Item 42/40.
[16] J W Bleakley, The Aborigines and Half–Castes of Central Australia and North Australia 1928, Report to the Parliament of the Commonwealth of Australia, Canberra (1929) 6.
[17] Frank Stevens, Equal Wages for Aborigines: The background to industrial discrimination in the Northern Territory of Australia (1968) 9.
[18] Commonwealth, The Year Book of Australia for 1911 (1912).
[19] Deborah Bird Rose, Hidden Histories: Black Stories from Victoria River Downs, Humbert River and Wave Hill Stations (1991) 81.
[20] Bernard Higgins, Presenting Aborigines in the Pastoral North: Economics, History and Anthropology (Honours Thesis, Australian National University, 1986) 16.
[21] See Rose, above n 19, 156.
[22] Ann McGrath, ‘Born in the Cattle’: Aborigines in cattle country (1987) 52.
[23] Baldwin Spencer, Preliminary Report on the Aboriginals of the Northern Territory, Department of External Affairs, Melbourne (1913) 43.
[24] Michael Hess, ‘Black and Red: the Pilbara pastoral workers’ strike, 1946’ (1994) 18(1) Aboriginal History 65, 66.
[25] Bleakley, above n 16, 7.
[26] Charlie Schultz and Darrell Lewis, Beyond the Big Run: Station Life in Australia’s last Frontier (1994) 126.
[27] C L A Abbott, ‘Report of Debates’ in Conference of Representatives of Missions, Societies, and Associations Interested in the Welfare of Aboriginals to Consider the Report and Recommendations submitted to the Commonwealth Government by J W Bleakley Esq, Department of the Interior, Melbourne (1929) 20–21, National Archives (Canberra) CRS A1 Item 33/8782.
[28] Paul Hasluck, Shades of Darkness: Aboriginal Affairs 1925–1965 (1988) 52.
[29] Peter d’Abbs, Interview with Harry Giese (Oral history transcript, 1994) Northern Territory Archives Service, NTRS 226 TS 755 1994.
[30] See, eg, Don Dickson, Interview with Gordon Sweeney (Oral history transcript, 1980) Northern Territory Archives Service, NTRS 222 TS (Box 20); Tony Austin, ‘Looking Back’ in Val Dixon (ed) Looking Back (1988), 92.
[31] Rose, above n 19, 73.
[32] South Australia Legislative Council, Report of the 1899 Select Committee of the Legislative Council on The Aborigines Bill: Minutes of Evidence, Parliamentary Paper No 77 (1899) 83.
[33] See Rose, above n 19, 137.
[34] Mary Durack, Kings in Grass Castles (1962) 315–16.
[35] The Northern Territory was governed by South Australia between 1882 and 1910.
[36] Peter Donovan, A Land Full of Possibilities: A History of South Australia’s Northern Territory (1981) 184.
[37] Tim Rowse, ‘Were You Ever Savages?’ Aboriginal Insiders and Pastoralists’ Patronage’ (1987) 58(2) Oceania 81, 84.
[38] Jeannie Gunn, We of the Never-Never (1990) 185.
[39] Thalia Anthony, ‘Postcolonial Feudal Hauntings of Northern Australian Cattle Stations’ (2003) 7 Law Text Culture 277.
[40] Aboriginals Ordinance 1911 (Cth) s 8(1); Aboriginals Ordinance 1918 (Cth) s 22(1).
[41] Harry Giese, Interview with Dr C E (Mick) Cook (Oral history transcript, 1981, 9) Northern Territory Archives Service NTRS 226 TS179.
[42] Austin, above n 30, 92.
[43] Aboriginals Ordinance 1911 (Cth) s 8(1); Aboriginals Ordinance 1918 (Cth) s 23(2).
[44] Aboriginals Ordinance 1911 (Cth) s 8(1).
[45] Aboriginals Ordinance 1918 (Cth) s 26(1).
[46] d’Abbs, above n 29, 2.
[47] Ann McGrath ‘Modern Stone–Age Slavery’: Images of Aboriginal Labour and Sexuality’ in Ann McGrath and Kay Saunders (eds) Aboriginal Workers (1995) 41, 41–42.
[48] Ibid.
[49] This did not include ‘half-caste females employed as domestics’ who received six shillings; Aboriginal drovers ‘travelling with stock’ who received 24 shillings; and, Aboriginal drovers ‘travelling with plant’ who received 16 shillings: Aboriginal Trust Account (1938) National Archives (Darwin) F1 38/17.
[50] Margaret Kowald and Ross Johnston, You Can’t Make it Rain: the story of the North Australian Pastoral Company 1877–1991 (1992) 74.
[51] Aboriginal and Torres Strait Islander Commission, The history of pastoral co-existence, Native Title Report (1997) 13 <http://austlii.law.uts.edu.au/au/other/IndigLRes/1997/4/2.html> at 10 April 2007.
[52] McGrath, above n 22, 138.
[53] John Hunter, ‘Cattle Station Wages’ (1974) 43(3) Maningrida Mirage 1, 2.
[54] R K McCaffery (1953), Maintenance Payment to Dependants of Aboriginal Employees on Pastoral Properties, National Archives (Darwin) CRS F1 1953/307.
[55] White, above n 15, 5.
[56] Giese, above n 41, 9.
[57] Ibid 10. This was enacted on 29 June 1933 under Regulation 12 of the 1918 Ordinance: M M Culnane (Department of the Interior) Aboriginal Trust Account, 4 May 1951, Memorandum No 45/1/1544, 1, National Archives (Darwin) F1 48/67.
[58] Giese, above n 41, 60.
[59] Winifred Wilson, Dietary Survey of Aboriginals in the Northern Territory, Commonwealth Department of Health (1952) 106.
[60] Mary Stephenson, Interview with Mr E C (Ted) Evans (Oral history transcript, 1982, 30) Northern Territory Archives Service NTRS 266 TS46 (Box 3).
[61] Higgins, above n 20, 5.
[62] Report of the Darwin Conference: North Australian Workers Union and Australian Engineering Union and Northern Territory Administration, Alice Springs (1954), National Archives (Darwin) NTAC 1976/137.
[63] Colin MacLeod, Patrol in the Dreamtime (1997).
[64] C R Lambert, Employment and Payment of Aborigines in the Northern Territory, National Archives (Canberra) CRS F1 1953/307.
[65] Rose, above n 19, 155.
[66] Stephenson, above n 60, 30–31.
[67] Ibid 22.
[68] Ibid.
[69] Ibid 23. On the Welfare Branch’s failure to follow up allegations of non-payment of workers at Vestey’s stations see Phillip Knightley, The Vestey Affair (1981) 143.
[70] Henry Reynolds, Black Pioneers: how Aboriginal and Islander people helped build Australia (2000) 10.
[71] V J White (Director of Native Affairs), Aboriginal Trust Account (Memorandum to the Acting District Officer, Alice Springs, 8 June, 1939) 3, National Archives (Darwin) F1 42/40; Aboriginal Trust Account, above n 49.
[72] Mudoon (Mounted Constable and Protector, Stuart Police Station, NT), Authority to spend moneys from Trust Funds of Aboriginal Drovers – George, Silas, Willie (1) Willie (2) (Memorandum to Sergeant Lovegrove, Officer in Charge Police, Stuart, and forwarded to The Chief Protector of Aboriginals, Darwin, 2 July 1932) National Archives (Darwin) F68, A8.
[73] See, eg, Stephen Gray, History, Law and Indigenous Poverty: the ‘Stolen Wages’ issue in the Northern Territory (draft PhD thesis, Monash University).
[74] Giese, above n 41, 12.
[75] McGrath, above n 47, 42.
[76] McGrath, above n 22, 139.
[77] Ibid.
[78] ‘Yarrum’, The Injured Half–Caste, Northern Standard (Northern Territory), 5 September 1935 in Peter Read, A Social History of the Northern Territory (1979) 37.
[79] Ibid.
[80] McGregor, above n 13, 520.
[81] F T Askins, Dark-Night. What of the Dawn: History Story of Australian (Northern Territory) Natives, 1605–1965 (1965) 62, Mortlock Archives, Adelaide (D5135 (Lit Ms)).
[82] Gray, above n 73, 37.
[83] d’Abbs, above n 29, 11.
[84] McGregor, above n 13, 513.
[85] See Gray, above n 73, 47.
[86] H J Goodes (Director-General, Melbourne) Child Endowment for Aboriginal Children on Cattle Stations in the Northern Territory (Memorandum to the Minister, 17 March 1960) National Archives (Canberra) A885, B456, Part 2.
[87] A S (The Director of Social Services), Proposals to change (i) the method of payment of pensions in respect of aboriginal pensioners on Settlements in Northern Territory (ii) the method of payment of child endowment to aboriginal endowees on pastoral properties in Northern Territory, Memorandum to L. L. Gillespie (Assistant NT Administrator), 20 December 1962, National Archives (Canberra) A885/5, 456 Part 2.
[88] L L Gillespie (Assistant NT Administrator), Child Endowment for Aboriginal Children on Cattle Stations in the Northern Territory, (Memorandum to the Director, Department of Social Services, Adelaide, 31 October 1962) National Archives (Canberra) A885, B456 Part 2.
[89] Ibid.
[90] Minister for Social Services, House of Representatives Notice Paper No. 38 (Response to Question 84, 27 August 1959) National Archives (Canberra) A885/5; 456 Part 2.
[91] See Rose, above n 19, 154.
[92] L W Loveless (Director of Social Services), All subjects: Payment of Child Endowment in respect of Aboriginal Children (Memorandum to Director-General, Department of Social Services Melbourne, 12 March 1952) National Archives (Canberra) A885, B456 Part 2.
[93] L W Loveless (Director of Social Services), NT Natives (Memorandum to Director-General, Department of Social Services Melbourne, 24 July, 1952) National Archives (Canberra) A885, B456 Part 2.
[94] See Aboriginals Ordinance 1918 (Cth) s 5(1)(f).
[95] Northern Territory Welfare Ordinance 1953 (Cth).
[96] Monica McMahon, Colonial Domination: Aborigines in the Northern Territory 1911–1934. Background to Attitudes and Policies (Honours Thesis, Australian National University, 1977) 25.
[97] See, eg, Stephenson, above n 60, 42; Report of the Aborigines Welfare Board for Year ending 30th June, 1949, 4–5, National Archives (Darwin) NTAC1976/137/0.
[98] Stephenson, above n 60, 42.
[99] Ronald Berndt and Catherine Berndt, End of an Era: Aboriginal Labour in the Northern Territory (1987) 18.
[100] See Higgins, above n 20, 10.
[101] Ibid.
[102] Rosalind Kidd, Hard Labour, Stolen Wages (forthcoming, 2007), 3.
[103] Stephenson, above n 60, 37–38.
[104] Ibid 39.
[105] Wilson, above n 59, 2.
[106] See Jackie Huggins, ‘Firing on in the Mind: Aboriginal Women Domestic Servants in the Inter–War Years’ (1988) 13(2) Hecate: The Counter-Bicentenary Issue 5, 9.
[107] See Rose, above n 19, 139–40.
[108] Stephenson, above n 60, 30.
[109] Stephenson, above n 60, 19.
[110] Ibid.
[111] Peter Sing and Pearl Ogden, From Humpy to Homestead: the biography of Sabu (1992) 59; Stephenson, above n 60, 30–31.
[112] Pete Thomas, The Beef Rustlers: What Everyone Should Know about the Meat Industry (1968) 15.
[113] Bill Bunbury, It’s not the money it’s the land: Aboriginal stockmen and the equal wages case (2002) 84.
[114] F P Shepherd, General Report on the Investigation of Pastoral Leases in the Northern Territory 1933–1935, Presented to the Federal Department of the Interior, Canberra (1935), 1 (Schedule R: Native Labour) National Archives (Darwin) NN F987.
[115] V G Carrington (Acting Director of Native Affairs, Native Affairs Branch, NT Administration), Report on Aboriginal Employment to the Administrator (Darwin, 10 October 1945, 1, 2) Noel Butlin Archives (Canberra) 42/12.
[116] Stephenson, above n 60, 31.
[117] Ibid 37.
[118] M M Culnane (Department of the Interior), Aboriginal Trust Account (Memorandum No. 45/1/1544, 1, 4 May 1951) National Archives (Darwin) F1 48/67.
[119] Bill Thorpe, ‘Aboriginal employment and unemployment: colonised labour’ in Claire Williams (ed), Beyond Industrial Sociology: The work of men and women (1992) 88, 90–91.
[120] d’Abbs, above n 29, 3; Askins, above n 81, 3.
[121] See Gray, above n 73, 16.
[122] Ibid 18.
[123] Dexter Daniels Report, 20 March 1966, Miscellaneous Workers’ Union, PAC 34, Correspondence, Box 32, NTAS, Darwin in Gray, above n 73, 18.
[124] Commonwealth, Royal Commission Into Aboriginal Deaths In Custody, Report Of The Inquiry Into The Death Of Kwementyaye Price (1990) 7 <http://austlii.law.uts.edu.au/au/other/IndigLRes/rciadic/individual/brm_kp/BRM_KP.RTF> at 10 April 2007.
[125] Ibid.
[126] White, above n 15, Appendix 11.
[127] Wages of Aboriginals and Half-Castes – Northern Territory, National Archives (Canberra) A1/15 1938/329.
[128] Aboriginals Ordinance 1918 (Cth) s 5(1)(b).
[129] Giese, above n 41, 60.
[130] Wilson, above n 59, 5.
[131] Matt Savage, Boss Drover (1971) 12.
[132] Ann McGrath, Interview with Noel and Dorothy Hall (Oral history transcript, 1978) Northern Territory Archives Service, NTRS 226, TS230 (Box 14).
[133] Lyn Riddett, Kine, Kin and Country: the Victoria River District of the Northern Territory 1911–1966 (1990) 115.
[134] J W Bleakley, Report of Debates: Conference of Representatives of Missions, Societies, and Associations Interested in the Welfare of Aboriginals to Consider, Report and Recommendations submitted to the Commonwealth Government, 12 April 1933, Australian Institute of Aboriginal and Torres Strait Islander Studies Records: MS 1225.
[135] Spencer, above n 23, 40.
[136] J H Sexton, Report by a Protector of Aboriginals on his Recent Visit to Central Australia (13 June, 1930) 21, Mortlock Library Archives (Adelaide) SRG 139/1; Series 1, No. 169; Stephenson, above n 60, 37.
[137] Cited in C M T Cooke, The Status of Aboriginal Women in Australia 1930 (8 July, 1932), report prepared for the Department of Home Affairs, Commonwealth of Australia, Canberra, 13, Mortlock Library Archives (Adelaide) SRG 139/1/195.
[138] Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574, 580–81.
[139] See, eg, Morton v Douglas Homes Ltd [1984] 2 NZLR 548, 612–14.
[140] Baxter v Obacelo Pty Ltd [2001] HCA 66 (Unreported, Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ, 15 November 2001) [25] (Gleeson CJ and Callinan J).
[141] Ibid [49].
[142] [2003] HCA 4; (2003) 212 CLR 511 (‘Lepore’).
[143] Lepore [2003] HCA 4; (2003) 212 CLR 511, 535.
[144] Stephenson, above n 60, 37.
[145] Commonwealth Conciliation and Arbitration Commission, Transcripts of Proceedings in the matter of the Conciliation and Arbitration Act 1904–1965 and of The Cattle Station Industry (Northern Territory) Award, 1951, No’s 397 and 553 of 1950 (1965), 753.
[146] The Vestey Group leased an area of pastoral land in northern Australia that was larger than Tasmania, included the large stations of Wave Hill and Helen Springs in the Northern Territory: Knightley, above n 69, 133, 152; LJ Hooker owned Victoria River Downs, Rosewood, and Legune Stations: ibid 39.
[147] Stephenson, above n 60, 19.
[148] The Vestey Group currently operates from England and runs a number of subsidiary companies, including an international food product business and significant cattle ranching interests in Brazil and Venezuela. Its current holdings are estimated at £650 million. Lord Sam Vestey, the current Chairman of the Vestey Group, is the great grandson of the first Lord Vestey who built the cattle empire in northern Australia. See Company Information, Angliss International <http://www.angliss – international.com/vesteygroup.htm> (10 April 2007); Classic Fine Foods
<http://www.classicfinefoods.com/> at 10 April 2007.
[149] See Farmer-Paellman v FleetBoston, No. CV–02–1862 (EDNY, 2002). See generally, ‘Slave descendents to sue Lloyd’s’, BBC News (UK), 29 March 2004 <http://news.bbc.co.uk/2/hi/uk_news/3578863.stm> at 10 April 2007. Cf the experience of Holocaust survivors in acquiring reparations from Swiss Banks. In 1997 Swiss Banks gave $200 million, pursuant to the production of a list of thousands of people with accounts. They have promised a further $1.25 billion: Tasha Wilson, Holocaust Reparations (1999) Infoplease <http://www.infoplease.com/spot/holocaust1.html> at 17 April 2007. See also, Volkswagen’s admission that it used 15,000 slaves during WWII, and its announcement that it plans to set up a fund to compensate these workers: Ibid
[150] Keith N Hylton, ‘Slavery and Tort Law’ (2004) 84 Boston University Law Review 1209.
[151] Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330, 422 (Kirby J).
[152] Cubillo v Commonwealth [2000] FCA 1084; [2000] 174 ALR 97, 470 (O’Loughlin J).
[153] Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180.
[154] Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563, 599 (Murphy J).
[155] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, 54–56 (Mason CJ, Deane, Dawson and Gaudron JJ).
[156] Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 (‘Perre’).
[157] Perre [1999] HCA 36; (1999) 198 CLR 180, 203–37 (McHugh J).
[158] See, eg, Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515, 530.
[159] Ibid.
[160] Ibid 531. The Court referred to Jane Stapleton ‘Comparative Economic Loss: Lessons from Case-Law-Focused ‘Middle Theory’’ (2002) 50 UCLA Law Review 531, 558–59 in making this assertion.
[161] Tim Rowse, White Flour, White Power: From Rations to Citizenship in Central Australia (1998) 5.
[162] A R Driver, Correspondence to the Secretary, Department of the Interior, 6 July 1949, National Archives (Darwin) CA1070, F1 43/24.
[163] Hasluck above n 28, 53.
[164] Donoghue v Stevenson [1932] A C 532.
[165] See, eg, the plight of Indigenous workers at Brunette Station: McGrath, above n 22, 41. See also C M Berndt, ‘A Northern Territory Problem: Aboriginal Labour in a Pastoral Area’ (1948), reproduced in Frank Stevens, above n 17, 18–19 for a discussion of the conditions under which Indigenous workers existed on Vestey’s Victoria River Downs Station. See further, Department of Health, ‘Provisional Ration Scales for the Feeding of Aboriginals: issued for the guidance of managers of missions, government institutions, and cattle stations in northern Australia 1952 Commonwealth of Australia, Canberra: Surveys – Missions and Stations – Aboriginal Affairs Settlement – Phillip Creek 1960–61’, Medical Report on Phillip Creek, 15 September, 1955, by Sgd E. Kettle for NT Health Dept, 1, National Archives (Darwin) E51 1960/661.
[166] Perre [1999] HCA 36; (1999) 198 CLR 180, 193 (Gleeson CJ). See also, Justice Michael McHugh, ‘Neighbourhood, Proximity and Reliance’ in Paul D Finn (ed) Essays on Torts (1989) 5.
[167] [2002] HCA 54; (2002) 211 CLR 540 (‘Barclay Oysters’).
[168] Stephenson, above n 60, 39.
[169] Ibid 42.
[170] Ibid 35–36.
[171] Ibid 30.
[172] Ibid 37.
[173] Ibid.
[174] Ibid.
[175] Spencer, above n 23, 47.
[177] Ibid [438].
[178] Ibid 23.
[179] This is a necessary requirement for a government employee to have fulfilled their duty of care: Harrison v National Coal Board (1951) AC 639, 688 (Lord Reid).
[180] Carrington, above n 115, 3.
[181] ‘Treatment of Aborigines: Minister to Visit NT Again – Personal Inquiry’, The Advertiser (Adelaide), 29 July 1933, 14.
[182] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 522 (Deane J).
[183] March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 (‘Stramare’).
[184] Ibid 523–25 (Deane J).
[185] Ibid 516 (Mason CJ).
[186] Dickson, above n 30, 26.
[187] O’Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464, 478 (Dixon J).
[188] Ibid.
[189] Ibid, 486–87 (Evatt and McTiernan JJ).
[190] Harold Luntz and David Hambly, Torts: Cases and Commentary (5th ed, 2002) 625.
[191] O’Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464, 477 (Dixon J).
[192] The 1918 Ordinance, the 1933 Ordinance, and the Wards’ Ordinance.
[193] See: R v Deputy Governor of Parkhurst Prison; Ex p Hague [1992] 1 AC 58, 168–71 (Lord Jauncey).
[194] Aboriginals Ordinance 1918 (Cth) s 5(1)(f).
[195] Aboriginals Ordinance 1918 (Cth) s 6(3).
[196] McGregor, above n 13, 552.
[197] Aboriginals Ordinance 1918 (Cth) s 57: ‘Any action or other proceedings against any person for the recovery of wages due to an aboriginal or half-caste, who is or has been employed by that person, or for the breach of an agreement made with an aboriginal or half-caste, may be instituted and carried on by, or in the name of, any Protector authorised in that behalf by the Administrator’.
[198] Aboriginals Ordinance 1918 (Cth) s 24(1); Wards’ Employment Ordinance 1960 (Cth).
[199] Cubillo v Commonwealth [2000] FCA 1084; (2000) 174 ALR 97 (‘Cubillo’).
[200] Cubillo [2000] FCA 1084; (2000) 174 ALR 97, 281(O’Loughlin J).
[201] Jennifer Clarke, ‘Case notes: Cubillo v Commonwealth’ [2001] MelbULawRw 7; (2001) 25(1) Melbourne University Law Review 218, 272.
[202] Stephenson, above n 60, 30–31.
[203] See, eg, Acting Director of Native Affairs, Carrington’s refusal to accept that the treatment of Indigenous workers was so inconsistent with the requirements of the 1933 Ordinance as to warrant cancellation of a licence, despite acknowledging that accommodation and sanitary provisions did not meet the requirements under the Regulations: Carrington, above n 115, 2–3.
[204] The Federal Court under s 39B of the Judiciary Act 1903 (Cth) has original jurisdiction with respect to any matter in which mandamus is sought against Commonwealth officers.
[205] R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors & Draughtsmen of Australia [1950] HCA 40; (1950) 82 CLR 54.
[206] Re Williams and Town of Brampton (1908) 17 OLR 398.
[207] See Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252; Re O’Reilly; Ex parte Australena Investments Pty Ltd (1983) 58 ALJR 36.
[208] See R v Tower Hamlets London BC; Ex parte Kayne-Levenson [1975] QB 431.
[209] J D Heydon & P L Loughlan, Equity and Trusts (5th ed 1997) 207.
[210] Ibid [1284].
[211] Ibid.
[212] Mabo v State of Queensland (No 2) (1992) 175 CLR 1.
[213] Ibid 60 (Brennan J); 228 (Deane J); 203 (Toohey J).
[214] Nor was such a breach found in Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1.
[215] Commonwealth Conciliation and Arbitration Commission, above n 145, 749.
[216] Chan v Zacharia [1984] HCA 36; (1984) 154 CLR 178, 198 (Deane J).
[217] R Marsh (1954), Maintenance of Aboriginal Dependants on Pastoral Leases (Memorandum No 51/1634, 1, National Archives (Darwin) A452/54, 1955/303.
[218] Askins, above n 81, 58.
[219] See, eg, ‘Developing North Support For Proposals Pastoralist’ Claim’, 26 January, 1938, National Archives (Adelaide), B300/2, 7751/1 (Payne Investigation Committee, NT, newspaper cuttings); C R Lambert (Secretary, Department of External Territories) Maintenance of Aboriginal Dependants on Pastoral Leases (Memorandum to the Minister, No 51/1634, 12 May 1954, 1) at National Archives (Canberra) A452/54, 1955/303.
[220] J C Genders (Aboriginal Protection League) in Report of Debates: Conference of Representatives of Missions, Societies, and Associations Interested in the Welfare of Aboriginals to Consider the Report and Recommendations submitted to the Commonwealth Government by J W Bleakley Esq (Unpublished, Transcribed by the Commonwealth Attorney-General’s Department, Melbourne, 12 April 1933), National Archives (Canberra), File No CRS A1 33/8782, 24.
[221] Mudaliar, above n 2, [5]; Rosalind Kidd, Trustees on Trial (2006), 45.
[222] A constructive trust is imposed by law where it would be unconscionable for a person to deny another’s equitable claim and irrespective of the intention of the parties: Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, 620.
[223] Stephenson Nominees Pty Ltd v Official Receiver in Bankruptcy (1987) 76 ALR 485, 501–6.
[224] Lyn Riddett, Aboriginal Employment in the Pastoral Industry (NT 1930–66) (1985) 10.
[225] Slavery Convention, opened for signature 25 September 1926 LNTS 60 (entered into force 9 March 1927). Although not ratified by Australia until 1953, the Convention prohibited slavery conditions and the owning and trading of people under Art 1. See R Henderson, Interview with Mrs Daisy Bates (The Australian Broadcasting Commission, Sydney, 1941) Mortlock Archives OHH 543; Alison Holland, ‘Feminism, Colonialism and Aboriginal Workers: An Anti-Slavery Crusade’ (1995) 69 Special Issue of Labour History: Aboriginal Workers 52–64.
[226] ‘‘Conditions of Slavery’: Alleged Treatment of N.T. Aborigines’, The Advertiser (Adelaide), 30 May 1933, 11.
[227] Convention concerning the Creation of Minimum Wage-Fixing Machinery, ILC No. 26 (entered into force 14 June 1930).
[228] GA Res 217A(III) (10 December 1948).
[229] Hurst Hannum, ‘The Status and Future of the Customary International Law of Human Rights: The Status of the Universal Declaration of Human Rights in National and International Law’ (1996) 25 Georgia Journal of International and Comparative Law 287, 319–25.
[230] Ibid 323.
[231] Convention (No 29) Concerning Forced Labour, opened for signature 28 June 1930, 39 UNTS 55 (entered into force 1 May 1932) (‘Forced Labour Convention’). Australia ratified the Forced Labour Convention on 2 January 1932. In 1960 Australia ratified the Abolition of Forced Labour Convention, opened for signature 25 June 1957 320 UNTS 291 (entered into force 17 January 1959). The Abolition of Forced Labour Convention contains stricter provisions by condemning any forced labour as a means of labour discipline, punishment, workforce mobilisation for economic development, and racial discrimination: Art 1(a)–(e).
[232] Forced Labour Convention arts 1 and 4(2).
[233] Forced Labour Convention art 2(2).
[234] Forced Labour Convention art 14(1).
[235] Forced Labour Convention art 14(5).
[236] Forced Labour Convention art 15(1).
[237] Forced Labour Convention art 16(2).
[238] This includes the 2005 successful ACTU complaint to the ILO that the Building and Construction Industry Improvement Act 2005 (Cth) breaches ILO Conventions on union rights to freely associate and collectively bargain. See Chris White, ‘Workchoices: removing the choice to strike’ (2005) 56 Journal of Australian Political Economy 66, 67–68.
[239] On the role of the North Australian Workers’ Union see Ian G Sharp and Colin M Tatz (eds) Aborigines in the Economy (1966).
[240] International Labour Organization Constitution, art 24 <http://www.ilo.org/public/english/about/iloconst.htm#a24> at 16 April 2007.
[241] Trail Smelter Arbitration (United States of America v Canada) (1939) 33 AJIL 182.
[242] Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
[243] Yeager v Islamic Republic of Iran (1987) 17 Iran–USCTR 104. See also, Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty–third Session, UN GAOR, 56th Sess, Supp No 10 at 43, UN Doc A/56/10 (2001) <http://www.un.org/law/ilc> at 10 April 2007 (‘ILC Draft Articles’). The ILC Draft Articles represent the articulation of customary international law: James Crawford, ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect’ (2002) 96 American Journal of International Law 874, 890.
[244] Neer Claim (USA v Mexico) (1926) 21 American Journal of International Law 555. See also ILC Draft Articles, above n 243, art 39.
[245] Youmans v Mexico 21 AJIL 571 (1927); ILC Draft Articles, above n 243, art 7.
[246] Elettronica Sicula SpA (ELSI) (Unites States of America v Italy) [1989] ICJ Rep 15, 42 [50].
[247] See Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries (2001) 305 [3] <http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf> at 10 April 2007 (‘ILC Draft Articles with commentaries’).
[248] Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240.
[249] Ibid 253–55.
[250] Ibid, 253–54.
[251] Ibid 255.
[252] ILC Draft Articles, above n 243, art 45(b).
[253] ILC Draft Articles with commentaries, above n 247, 309 [6].
[254] Stevenson, UNRIAA, vol. IX (1903), 385; Gentini, UNRIAA, vol. X (1903), 557.
[255] Tagliaferro, UNRIAA, vol. X (1903) 592, 593.
[256] ILC Draft Articles with commentaries, above n 247, 311 [11].
[257] International Labour Organization, ILO’s Representations and Complaints Procedures ILOLEX: database on International Labour Standards (1998) <http://www.ilo.org/ilolex/english/art2426e.htm> at 10 April 2007.
[258] ILC Draft Articles, above n 243, arts 31, 35. The Draft Articles were recognised by the International Court of Justice in Gabčíkovo-Nagyamaros Project (Hungary v Slovakia) [1997] ICJ Reports 7.
[259] For example, in response to a November 1992 finding by the ILO that the legal requirement for unions to have at least 10,000 workers in order to be registered under the federal system could ‘unduly influence workers’ free choice of unions’, the Government repealed the relevant legislative provision under the Industrial Relations Act 1988 (Cth) on 16 December 1993. See, eg, Parties to the Award (1994) Australian Trade Union Association <http://www.atua.org.au/ptta/014.html> at 10 April 2007. See also, Complaint against the Government of Australia presented by the Confederation of Australian Industry and the International Organisation of Employers Report No 284, Case No 1559, Vol LXXV Series B, No 3 (1992) International Labour Organization <http://www.ilo.org/ilolex/english/newcountryframeE.htm> at 16 April 2007.
[260] An example of this is the Federal Government’s rejection of the ILO’s Commission on Freedom of Association’s recommendations in March 2000 regarding Australia’s labour, in particular the Workplace Relations Act 1996 (Cth) and the Trade Practices Act 1974 (Cth). See, eg, Complaint against the Government of Australia presented by the International Confederation of Free Trade Unions, the International Transport Workers’ Federation, the Australian Council of Trade Unions and the Maritime Union of Australia, Report No 320, Case N. 1963, Vol LXXXIII, 2000, Series B, No 1 (2001) International Labour Organization <http://www.ilo.org/ilolex/english/newcountryframeE.htm> at 10 April 2007. The Government responded by stating that the ILO’s recommendations ‘reflect[ed] an inadequate understanding of Australian law’: see Peter Reith (Minister for Employment, Workplace Relations and Small Business), ILO Freedom Of Association Complaint (2000) Office of Employment and Workplace Relations Media Centre <http://mediacentre.dewr.gov.au/mediacentre/AllReleases/2000/March/IloFreedonOfAssociationComplaint.htm> at 10 April 2007.
[261] Standing Committee on Legal and Constitutional Affairs, above n 8, [8.28]. <http://www.aph.gov.au/senate/committee/legcon_ctte/stolen_wages/report/report.pdf> at 10 April 2007.
[262] ‘A Personal Story – Stolen Wages Campaigner Yvonne Butler’, Koori Mail (Brisbane), 1 March 2006.
[263] See, eg, Australian Broadcasting Corporation, ‘Indigenous leaders split over Queensland Government’s compensation offer’, ABC News, 8 June 2002; Australian Broadcasting Corporation, ‘Queensland Government rejects Indigenous stolen wages claim’, ABC News 30 September 2003; Australian Broadcasting Corporation, ‘Another Indigenous community rejects compo offer’, ABC News, 21 June 2002.
[264] Andrew West, ‘$500m in Wages Stolen: Aborigines say compo offers are not enough’, Sun Herald (Sydney) 11 January 2004, 25.
[265] Ibid.
[266] [1996] HREOC 28 [209].
[267] Scott McDougall, ‘A Certain Commonality: Discriminating against the discriminated in the compensation of Queensland’s underpaid workers’ [2002] IndigLawB 5; (2002) 5(14) Indigenous Law Bulletin 11, 14.
[268] Ibid.
[269] Ibid.
[270] See, eg, ‘Panel ‘a delaying tactic’’’, Manly Daily (Sydney) 12 May 2004, 11; ‘Carr says sorry over missing wages for Aborigines’, ABC Message Stick: Aboriginal and Torres Strait Islanders Online, 5 May 2004 <http://www.abc.net.au/message/news/stories/ms_news_1101877.htm> at 10 April 2007.
[271] Zoe Craven, Fact Sheet: ‘Stolen Wages’ and Entitlements: Aboriginal Trust Funds in New South Wales, Indigenous Law Centre (Faculty of Law, UNSW), August 2004, 4. This criticism is set apart from the unequivocal support of the NSW Scheme by the Senate Inquiry, as reflected in its recommendations that other states and territories model their schemes on NSW compensation scheme: above n 8, Recommendations 4 [8.26(a)(ii)] and 5 [8.27(c)].
[272] Aileen Teo, ‘Stolen Wages Update: Establishment of the NSW Aboriginal Trust Fund Repayment Scheme’ [2005] IndigLawB 12; (2005) 6(9) Indigenous Law Bulletin 12, 13.
[273] Rosalind Kidd, above n 221, 127, quoting Pilmer v The Duke Group Ltd (in liq) [2001] HCA 31 (Unreported, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 31 May 2001).
[274] Native American Rights Fund, Individual Indian Money (IIM) Accounts Cobell v Babbitt: Fact Sheet for IIM Account Holders and Other Individual Indian Trust Beneficiaries <http://www.narf.org/cases/iimgeninfo.htm> at 10 April 2007.
[275] Kidd, above n 221, 45.
[276] Teo, above n 272, 13.
[277] Fiona Kennedy and Leisa Scott, ‘Black elders win payback for wage racism’, The Australian (Sydney), 3 October 1996, 5.
[278] Sean Brennan and Zoe Craven, ‘Eventually they get it all…’ Government Management of Aboriginal Trust Money in New South Wales (2006) 60–61.
[279] The New South Wales government has attached the ‘greatest reliance’ on archival records of the Aboriginal Protection and Welfare Boards: see, eg, Submission to the Standing Committee on Legal and Constitutional Affairs Committee, Australian Senate, Canberra, 92 (NSW Government) <http://www.aph.gov.au/senate/committee/legcon_ctte/stolen_wages/submissions/sub92.pdf> at 10 April 2007.
[280] Jorge Martin, ‘Venezuela Announces War Against “Latifundios”’ (2005), Venezuelanalysis.com <http://www.venezuelanalysis.com/articles.php?artno=1351> at 10 April 2007.
[281] Standing Committee on Legal and Constitutional Affairs, above n 8, [8.27].
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