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Gray, Stephen --- "The Elephant in the Drawing Room: Slavery and the 'Stolen Wages' Debate" [2007] AUIndigLawRw 4; (2007) 11(1) Australian Indigenous Law Review 30

The Elephant in the Drawing Room: Slavery and the ‘Stolen Wages’ debate

Stephen Gray

In December 2006 the Senate Standing Committee on Legal and Constitutional Affairs produced its report into Indigenous stolen wages: Unfinished business: Indigenous stolen wages (‘the Stolen Wages report’).1 In numerous statements made to the Standing Committee Indigenous people described the conditions in which they had lived and worked in terms evoking the notion of slavery.2 According to Pamela Meredith:

The wages of my grandfather’s brother (my grand–uncle) James Meredith continued to be withheld for years after he was taken from Cherbourg mission and adopted to a white family… the government collected a life-times wages belonging to this gentleman – he was practically a slave for them! His wages should rightfully be returned and re-paid to his estate.3

Valerie Linow stated:

What if your wages got stolen? Honestly, wouldn’t you like to have your wages back? Honestly. I think it should be owed to the ones who were slave labour. We got up and worked from dawn to dusk… We lost everything – family, everything. You cannot go stealing our lousy little sixpence. We have got to have money back. You have got to give something back after all this country did to the Aboriginal people. You cannot keep stealing off us.4

The Stolen Wages report, however, did not discuss the relevance of slavery to the debate about Indigenous stolen wages. Indeed, its terms of reference, by referring to ‘paid Aboriginal labour’, arguably precluded it.5 Nor, as far as I am aware, was the word used in public debate preceding the Inquiry, although the National Indigenous Times has recently produced a feature on the issue.6 The notion of ‘slavery’ is, indeed, an elephant in the drawing-room of civilised debate.

This article will argue that the conditions under which many Aboriginal people lived and worked until at least the 1950s, if not later, satisfy the legal definition of ‘slavery’ existing under contemporaneous Australian and international law.7 These conditions were commonly regarded as ‘slavery’ by those with direct knowledge. This included particularly Aboriginal people themselves, but also journalists, unionists, anti-slavery activists, and those responsible for overseeing and implementing government policies.

It is true that Australia was not a ‘slave state’ in the manner of the American South; nor did all Aboriginal people during the relevant period live under conditions of ‘slavery’. Nevertheless, employers exercised a high degree of control over ‘their’ Aboriginal workers who were, in some cases, bought and sold as chattels, particularly where they ‘went with’ the property upon sale. There were restrictions on their freedom of choice and freedom of movement irrespective of any lack of consent. Indigenous people were subjected to threats and force. There was a fear of violence, subjection to cruel treatment and abuse, control of sexuality and forced labour. The fact that the law actually authorised many of the pastoralists’ actions, and that it could in general be relied on to turn a blind eye to formal illegalities, meant that employers exercised a form of ‘legal coercion’ over their workers in a manner consistent with the legal interpretation of slavery.

This article considers the legal definition of ‘slavery’ as it has been interpreted in the relevant case law. It will note that – as with other recent slavery prosecutions – whether a condition of slavery existed must be considered by reference to legal standards existing at the time the alleged acts occurred. Historical social and political understandings of the term ‘slavery’ are relevant to this question. The article will therefore consider contemporaneous applications of the term ‘slavery’ to Aboriginal labour, and also refer to the debate amongst historians on this issue over the past 30 years.8 The article will then consider Aboriginal experiences in the Northern Territory from colonisation until the abolition of discriminatory employment laws as a case study on the legal and social conditions of Aboriginal workers. While it is clear that not all Aboriginal labourers in the Northern Territory worked in conditions amounting to legal slavery, it will be argued that at least some did. The concluding section will briefly consider some of the implications of this contention for future legal and political debate.

Indigenous evidence referred to in the Stolen Wages report and elsewhere9 suggests that Indigenous people have no difficulty in thinking of their past treatment by European employers as slavery. On the other hand for many non–Indigenous people – including no doubt judges and lawyers – the notion of slavery in an Australian context is confronting. Since Indigenous people seeking justice over the stolen wages issue have to convince influential non-Indigenous people of the merits of their cause, it is worth raising a threshold issue: why have a debate about slavery at all?

I A threshold issue: why have a debate about slavery?

The term ‘slavery’ has ‘long held strongly emotive and moral associations’.10 In the popular imagination it is often associated with the African slave trade. The potential of the popular understanding of slavery to obscure debate about its legal definition has some parallels with the treatment of the term ‘genocide’, which Bain Attwood argues has come to be, ‘above all else, a marker or register of excess’.11 The same might be said of a debate about the term ‘slavery’. Like ‘genocide’, ‘slavery’ is dangerous and easily misused.12 It can be argued that introducing the spectre of slavery into political debate on Indigenous issues is, at the least, politically unwise. Debate about the term ‘genocide’ is a lesson for Aboriginal people and their supporters in the way in which an emotive, and popularly misunderstood, term can be used to fuel a backlash against Aboriginal rights.13 Some conservative commentators - and perhaps some ‘ordinary Australians’ - now apparently believe that Aboriginal people wish to draw a parallel between their treatment and that of the Jews and other minority groups in the Holocaust.14 To start a slavery debate might equally lead to misleading and politically counter-productive comparisons between the position of Aboriginal workers and that of African slaves.

However, an important difference between the ‘slavery’ and ‘genocide’ questions is that the concept of genocide was not part of contemporaneous discussion concerning the Government’s forcible removal of Indigenous children. As a result, the introduction of the term ‘genocide’ following the Bringing Them Home report15 created a sense of grievance among some white Australians, particularly those who administered the policies. Leslie Marchant, a former officer in the Department of Native Affairs in Western Australia, has written that he considers himself and his fellow officers to have been retrospectively criminalised, ‘branded as agents of some sort of genocide and with stealing children, with as little chance of defending themselves as Senator McCarthy’s victims, who were condemned and robbed of their reputations in his crusade’.

In contrast to the term ‘genocide’, ‘slavery’ was regularly used by both sides in contemporaneous discussion. It was used in popular debate until explicit legal discrimination began to disappear from statutes and awards following In the matter of the Conciliation and Arbitration Act 1904–1965, and of the Cattle Station (Northern Territory) Award 1951 in 1966.16 Amongst historians, it has been used for well over 20 years in the slightly different context of debate about whether Aboriginal labour was ‘free’ or ‘unfree’.17 Its reintroduction to legal debate is not a form of retrospective criminalisation, and should come as no surprise.

Dirk Moses has argued that Australia shares with Germany ‘the basic problem of national myths of origin and the consequent perpetrator trauma and process of political humanisation it inaugurates’.18 Australia certainly needs to become a ‘self critical community’19 capable of conducting ‘open debate about the meaning of the past [which] provides … orientation in the present and a guide for the future.’20 In Germany, according to Moses, this debate has led over several decades to Germany addressing its ‘cultural pathologies of the ‘authoritarian personality’ and the underdeveloped, weak ego that sought compensation in strong leadership and the collective security of group identity’, as well as its ‘debilitating melancholia’ caused by the ‘inability to mourn’.21 While Moses does not argue that Aboriginal experience is the moral or functional equivalent of that of European Jewry, he considers that debate about the term ‘genocide’ has become, for non-Aboriginal Australians, ‘the functional equivalent of the uniqueness of the Holocaust in Germany: the blemish that soils the myth of origin by preventing it from doing the magic work of social integration and healing’.22 As a result he argues that Australia should face - and not shy away from - the term ‘genocide’ in debate about its past.

Moses’ argument is equally applicable to ‘slavery’. Without such debates, Australia will continue to ‘view the past through the eyes of the victors and retrospectively justify their actions and morality’.23 This will be to the detriment of any prospect of lasting resolution of this least recognised of the great running sores of Aboriginal-European relations in Australia.

Of course, the term ‘slavery’ may be misused in popular debate. However, if it is legally and morally apt, the possibility that the argument may be distorted seems a less than convincing reason to refrain from making the argument at all. To frame the stolen wages debate as a question solely concerned with missing money is to lose sight of the bigger picture; one surprisingly well captured by the word ‘slavery’. To use milder language because of the fear of a conservative backlash, or in the hope that it will improve the possibility of a favourable outcome to stolen wages litigation is to lose sight of the symbolic, and to relinquish any possibility of full recognition, acknowledgement or even apology. It would allow the ‘great Australian silence’ surrounding Aboriginal dispossession to prevail once more; a silence pilloried by anthropologists and historians since the 1960s,24 and once thought to have disappeared from debate.

The Stolen Wages report provides evidence - if evidence were needed - of a continuing Aboriginal sense of grievance over the stolen wages issue and a sense that white Australia’s response to the issue has been mean-spirited and peremptory.25 The evidence suggests that Indigenous people are not exclusively, or even primarily, interested in money. What they desire is recognition of their past treatment: this recognition includes the use of appropriate and fitting language.26 As noted above, Indigenous people refer to their past treatment as ‘slavery’. The following discussion will argue that such a description is equally appropriate from the point of view of European law.

II The Legal Concept of ‘Slavery’

A Domestic and International Framework

Prior to the Criminal Code Amendment (Slavery and Sexual Servitude) Act 1999 (Cth) (‘Slavery and Sexual Servitude Act’) the prohibition on slavery in Australia was contained in various UK Imperial Enactments.27 The first of these was An Act for the Abolition of the Slave Trade,28 passed by the UK Parliament in 1807. This was followed by further legislative measures in 1824, 1833 and 1843. Under section 10 of the Slave Trade Act 1824 (UK) it was an offence to ‘deal or trade in slaves or persons intended to be dealt with as slaves’. These provisions were primarily directed at the international slave trade, particularly that coming out of Africa. Britain also entered into various anti–slavery treaties during this period.29 It seems clear that slavery was outlawed in the British Empire by 1833. In any event, unambiguous legislation consolidating these Acts of Parliament was passed in 1873.30

Despite their subject, these enactments did not explicitly define ‘slavery’. It was, however, defined in Article 1 of the Slavery Convention:31

Slavery is the status and condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.

While the Slavery Convention did not define the ‘powers attaching to the right of ownership’, the words ‘any or all’ make it clear that not all the powers of ownership need have been exercised over a person in order for the definition to be satisfied.

Article 4 of The Universal Declaration of Human Rights proclaims:

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

According to McDougal, Lasswell and Chen, the term ‘servitude’ in this article was intended ‘to include the functional equivalents of slavery including the traffic in women, forced labour and debt bondage’.32 The International Covenant on Civil and Political Rights also contains separate prohibitions on ‘slavery’ and ‘servitude’. Article 8 refers to ‘forced labour’, though a distinction between the terms is drawn.33

In 1990, the Australian Law Reform Commission (‘ALRC’) recommended that slavery have the following definition:

Slavery means the status or condition of a person over whom any power of ownership (including a power of ownership arising from a debt or contract) is exercised, and ‘slave’ has a corresponding meaning.34

In November 1998, the Model Criminal Code Officers’ Committee (MCCOC) produced a final report in response to a request from the Standing Committee of Attorneys-General to examine a Commonwealth proposal to enact laws dealing with sex slavery. Consequently, its attentions were directed not to chattel slavery but to ‘the practices at the edges of international adoption, migration and of domestic child welfare and working conditions’.35

MCCOC adopted a narrower definition of slavery than that found in the Slavery Convention or the 1990 ALRC Report. Noting a view expressed by Bassiouni it said:

The basic legal element in international instruments on slavery is the total physical control by one person over another. Whenever the control is less than total, such as when it is partial or limited in time, it is removed from the system of protections developed by these international instruments.36

This interpretation of international law seems to have led the Committee to doubt the Commonwealth’s constitutional mandate under the external affairs power to legislate with respect to ‘slave like conditions amounting to servitude’.37 At the same time, it noted with apparent approval an earlier view expressed by the Commonwealth Government that:

[T]o draw an arbitrary line between chattel slavery and these additional practices [including forced marriage or child exploitation] could be seen to fly in the face of the expressed concern of the international community, with practices akin to slavery expressed in a Convention to which Australia is signatory, and from which obligations arise.38

The Committee was also concerned to exclude from the scope of its inquiry broader gender-related issues such as domestic violence and ‘mail-order brides’. It warned that ‘to describe such practices in law or in fact as “slavery” devalues the core meaning of the word and the very serious nature of the crime against humanity involved in chattel slavery and true debt bondage and involuntary servitude’.39

In the end, the Committee recommended the following definition:

For the purposes of this Part, slavery is the condition of a person over whom the powers attaching to the right of ownership are exercised. Slavery includes any such condition of a person resulting from a debt owed or contract made by the person.40

MCCOC noted that while the definition had been ‘streamlined’ it ‘remains similar to that which was circulated by the ALRC and the Committee in the discussion paper.’41 It did not explicitly state why the ALRC definition of slavery as ‘the condition of a person over whom any right of ownership’ is exercised had been narrowed so that it included only ‘the condition of a person over whom the powers attaching to the right of ownership are exercised’. It could be that the Committee wished to distinguish more clearly between the offences relating to slavery and the sexual servitude offences also contained within the Report.

Regardless of MCCOC’s reasons for its preferred definition, the Slavery and Sexual Servitude Act reflects the broader definition of slavery preferred in the ALRC Report:

For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.42

B Case law

In the first Australian jury conviction for slavery under the Slavery and Sexual Servitude Act, R v Wei Tang,43 five Thai women were brought into Australia with the promise they would eventually be able to work legally in the sex trade. They had arrived on an illegally obtained visa, and had to work off a debt of about $45,000 each. The women were not kept under lock and key, and were fed and generally well provided for. However, McInerney J considered that ‘all of the women were effectively restrained by the insidious nature of their contract’:

To comprehend the impact of such a regime of restriction, one has to marry such a regime to the circumstances. One asks the rhetorical question: How could they run away when they had no money, they had no passport or ticket, they entered on an illegally obtained visa, albeit legal on its face, they had limited English language, they had no friends, they were told to avoid Immigration, they had come to Australia consensually to earn income and were aware of the need to work particularly hard in order to pay off a debt of approximately $45,000 before they were able to earn income for themselves?44

The fact that the women consented to coming to Australia ‘was of course a factor for the jury when considering the status of slavery, however, such is not a defence to slavery’.45 Similarly, McInerney J noted that the jury had rejected a submission by defence counsel that ‘what the facts really showed in regard to these five complainants was a circumstance of debt bondage’, the jury finding that on each count ‘slavery resulted from such contract’.46 Justice McInerney noted the Minister’s comment, in introducing the offence of debt bondage in section 270(8) of the Slavery and Sexual Servitude Act, that ‘the slavery offences may also apply if the control over the sex worker is so far reaching that it effectively amounts to a right of ownership over her or him’.47

Wei Tang is, of course, only a sentencing decision. It contains no explicit judicial analysis of the definition of ‘slavery’ in section 270 of the Slavery and Sexual Servitude Act. Nevertheless, the judge’s comments - and certainly the jury’s decision - suggest a broad interpretation of the definition such that a person whose life is controlled, or who is reduced into submission, might properly be regarded as a slave. It also suggests that an offence of slavery may exist even where persons have come willingly; where they have come for the purpose of making money; where they were not prevented from leaving; and where the control exercised over their lives is partial, and limited in time.

In the New Zealand case of R v Decha-Iamsakun48 the defendant offered to sell a woman to an undercover police officer for a sum of money. The trial judge treated as applicable a dictionary definition of slavery as being ‘a servant completely divested of freedom and personal rights’.49 In summing up, however, he offered an alternative and broader definition, being ‘one who is submissive under domination’. His Honour made the following comments in explaining this definition to the jury:

One who is submissive under domination. So let us consider what that means. ‘Domination’, I guide you as a matter of law in the circumstances of this case, means ‘control and authority that brooks no opposition or disobedience’. That is domination. Control or authority that brooks no opposition or disobedience. And submissive means ‘acceptance of that domination’. Acceptance of that domination, whether willingly or unwillingly. You might add an inability to cast off the domination. So ‘submissive’ means acceptance of that domination, whether willingly or unwillingly. So one who is submissive under domination, who accepts it, unable to cast it off, can properly be described as a slave.50

The defendant was convicted, and appealed against conviction on the grounds, inter alia, that this explanation of the meaning of slavery was a misdirection. The Court of Appeal dismissed the appeal on this (and other) grounds. It noted that a shorter definition in the same dictionary, ‘a person held as property’, was ‘more apt and quite sufficient’ in the context of the New Zealand statute. Nevertheless, it considered that ‘this explanation by the Judge was enough in the circumstances of the present case to bring home the same concept to the jury’.51

Decha-Iamsakun is a more straightforward case than Wei Tang because it involved an offer to sell. Such an act more closely accords with the popular (chattel or slave plantation) model of slavery than do the various acts of domination and submission in the Victorian case. Nevertheless, the Court in Decha-Iamsakun accepted – admittedly without strong approval – a broad definition of slavery resting upon factual elements of domination and submission.

A third significant case is U.S v Kozminski,52 in which two mentally retarded men were found labouring on the respondents’ farm in poor health, and in isolated and squalid conditions. They were working very long hours, at first for $15 a week and eventually for no pay. There was actual or threatened physical abuse and a threat to re-institutionalise one of the men if he did not do as he was told. There were various forms of psychological coercion to keep the men on the farm. At trial the respondents were found guilty of keeping the men in involuntary servitude and sentenced accordingly. They appealed to the Court of Appeal, which reversed the decision and ordered a new trial. The United States sought certiorari in the Supreme Court.

The question for the Supreme Court was whether the defendants had prevented the men from exercising their rights under the Thirteenth Amendment to the United States Constitution, which provides that:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation.

Pursuant to the Thirteenth Amendment, Congress enacted 18 USC ss 1581–88. Under section 1584:

Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined not more than $5,000 or imprisoned not more than five years, or both.53

At trial, the Court defined involuntary servitude as going beyond physical force or threats of force to include general psychological coercion. The Court of Appeal, however, concluded that the trial Court’s definition of involuntary servitude should not have included psychological coercion. This was affirmed in the Supreme Court. According to O’Connor J, who delivered the opinion of the Court:

The Government cannot prove a s 241 conspiracy to violate rights secured by the Thirteenth Amendment without proving that the conspiracy involved the use or threatened use of physical or legal coercion. The fact that the Amendment excludes from its prohibition involuntary servitude imposed ‘as a punishment for a crime whereof the party shall have been duly convicted’ indicates that the Amendment’s drafters thought that involuntary servitude generally includes situations in which the victim is compelled to work by law.54

The general intent of the statute was to ‘prohibit conditions “akin to African slavery”.55 As a result, the reach of the statute ‘should be limited to cases involving the compulsion of services by the use or threatened use of physical or legal coercion’.56

The Court did not accept the Government’s proposed interpretation of the concept of involuntary servitude. It considered that an interpretation focusing on the question of whether the victim was deprived of their freedom of choice was too broad, and could include ‘psychological coercion as well as almost any other type of speech or conduct intentionally employed to persuade a reluctant person to work.’57 This could extend to ‘a broad range of day to day activity’ including a parent who coerced an adult son or daughter into working in the family business, a political leader who uses charisma to induce others to work without pay, or a religious leader who obtains personal services by means of religious indoctrination.58 However, the majority took care to point out that their conclusion did not imply that evidence of other means of coercion (that is, not physical or legal) is irrelevant; nor will evidence of extremely poor working conditions or of the victim’s special vulnerability be irrelevant. The victim’s vulnerabilities are relevant in determining whether the physical or legal coercion or threats thereof could plausibly have compelled the victim to serve.59

In a separate judgement Brennan J argued that section 1584 ‘prohibits not only the use of physical or legal coercion, but also any means of coercion ‘that actually succeeds in reducing the victim to a condition of servitude resembling that in which slaves were held before the Civil War’.60 Justice Brennan considered that there are no:

empirical grounds for assuming that involuntary servitude can be coerced only by physical or legal means. To the contrary, it would seem that certain psychological, economic, and social means of coercion can be just as effective as physical or legal means, particularly where the victims are especially vulnerable, such as the mentally disabled victims in this case.61

His Honour went on to say:

It is of course not easy to articulate when a person’s actions are ‘involuntary’. In some minimalist sense the labourer always has a choice no matter what the threat: the labourer can choose to work, or take a beating; work, or go to jail. We can all agree that these choices are so illegitimate that any decision to work is ‘involuntary’. But other coercive choices, even if not physical or legal in nature, might present closer questions. Happily, our task is not to resolve the philosophical meaning of free will, but to determine what coercion Congress would have regarded as sufficient to deem any resulting labor ‘involuntary’ within the meaning of s 1584.62

Of course, the decision in Kozminski concerned involuntary servitude rather than slavery. However, the case is still relevant to a discussion of Australian law regarding slavery because the Supreme Court considered that the prohibition on involuntary servitude was ‘intended to have the same substantive reach’63 as the earlier Slave Trade and Padrone statutes. The Court stated that ‘[w]hether or not s 1584 was intended to track these earlier statutes exactly, it was most assuredly not intended to work a radical change in the law.’64 The Court considered that ‘nothing in the history of the Slave Trade statute suggests that it was intended to extend to conditions of servitude beyond those applied to slaves, ie physical or legal coercion’.65

The Padrone statute was aimed at preventing the practice of enslaving, buying, selling or using Italian children. The ‘padrones’ were Italian men who took young boys away from their families and put them to work as street musicians or beggars in large cities:

These young children were literally stranded in large, hostile cities in a foreign country. They were given no education or other assistance towards self–sufficiency. Without such assistance, without family, and without other means of support, these children had no actual means of escaping the padrones’ service; they had no choice but to work for their masters or risk physical harm. The padrones took advantage of the special vulnerabilities of their victims, placing them in situations where they were physically unable to leave.66

The majority of the Supreme Court regarded the Padrone statute as support for its narrow view of involuntary servitude as being confined to physical or legal coercion or threats. Nevertheless, as Brennan J pointed out,67 psychological coercion was clearly an important factor in the regime to which the padrones subjected their victims. This is the case whether psychological coercion is regarded as directly relevant to the existence of involuntary servitude - as in the view of Brennan J - or whether it is merely evidence going to the existence of physical or legal coercion, as on the majority view. Also, the Supreme Court majority includes within its notion of legal coercion ‘threatening an incompetent with institutionalization or an immigrant with deportation’, even where such threats would be implausible if ‘made to an adult citizen of normal intelligence’.68 These points suggest that the interpretations of involuntary servitude given by Brennan J and the majority are closer than they first appear.

It can be argued that these cases are irrelevant to the question of whether Aboriginal workers 40 or more years ago were enslaved according to the laws existing at that point in time. However, it is suggested that these cases shed light on the legal requirements for establishing the existence of slavery, and in this sense are valuable to the debate over whether certain Indigenous groups suffered slave-like treatment. Kozminski in particular is useful because it required a determination of the meaning of statutory provisions enacted some 40 years prior to the hearing of the case. The majority gave effect to congressional intent by construing involuntary servitude in a way consistent with the understanding of the Thirteenth Amendment that prevailed at the time of section 1584’s enactment.69 Similarly, Brennan J’s interpretation was based on his Honour’s understanding of the legislative intention of the Slave Trade and Padrone statutes, which were ‘intended to protect persons subjected to involuntary servitude by forms of coercion more subtle than force’.70

While in a broader political or moral sense it is relevant to ask whether past treatment of Aboriginal workers amounted to slavery according to current standards, it is clear that any legal discussion of slavery must be based on the meaning of slavery at the time the alleged acts of slavery occurred. For this reason, the judgment of the Women’s International War Crimes Tribunal for the Trial of Japanese Military Sexual Slavery (‘the Tribunal’) is particularly relevant. The Tribunal was a so-called ‘people’s tribunal’ ‘organised by civil society’.71 It was the product of efforts by various non-western, non-governmental organisations to focus attention on the Japanese Government’s failure to respond meaningfully to the war crimes and crimes against humanity committed against the so-called Korean Comfort Women during World War II. Groups in the various participating countries gathered evidence and developed a legal framework for the Tribunal. The Tribunal combined the trying of a criminal indictment with a claim for reparations based on procedures put in place for the International Criminal Court. The judgment of the Tribunal was not enforceable, but, according to Tina Dolgopol:

the women felt strongly that a public finding of criminal responsibility on the part of Japanese officials would assist in helping them to find peace within themselves. The emphasis given to the needs of the survivors by the organisers of the Tribunal made this effort more akin to the processes put in place by truth commissions.72

One of the major allegations considered by the Tribunal was that the treatment endured by the women amounted to slavery under international law. In considering this question the Tribunal applied international law as it stood at the time the alleged crimes were committed:

Another crucial decision of the prosecutors was to frame the indictment so that the specific charges would be addressed as if this were a continuation of the International Military Tribunal for the Far East (IMTFE). The significance of this decision was that the law applicable to the criminal aspects of the Tribunal would be that as applied or that which could have been applied if the Comfort System had been adjudicated by the IMTFE. It also meant that the legal basis for the Tribunal’s decision could not be attacked as being based on modern concepts of international law inapplicable at the time the comfort system was implemented.73

The Tribunal rejected as too narrow a definition of slavery agreed to at the Preparatory Commission for the Elements of Crime Annex to the Statute of the International Criminal Court. This definition referred to whether the perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons or by imposing on them a similar deprivation of liberty. It considered that this definition directed undue attention to the use of the person in a commercial exchange. Instead, it preferred the concept of enslavement adopted by the International Criminal Tribunal for Yugoslavia in Prosecutor v Kunarac, Kovac and Vukovic:74

[I]ndications of enslavement include elements of control and ownership; the restriction or control of an individual’s autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator. The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or captivity, psychological oppression or socio-economic conditions… The ‘acquisition’ or ‘disposal’ of someone for monetary or other compensation is not a requirement for enslavement. Doing so, however, is a prime example of the exercise of the right of ownership over someone…. [The basic factors include] the control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.75

In light of the various cases discussed above, it is suggested that this statement represents an accurate summary of the current Australian law on slavery. It is also an accurate statement of the law which would be applied to a tribunal or commission assessing whether the conditions of Aboriginal workers during or prior to the 1950s amounted to slavery. Contemporaneous social understandings of the meaning of slavery would be as relevant to an assessment of this question as the intention of the framers of the Padrone statute was to the understanding of involuntary servitude in Kozminski.

III Contemporaneous Understandings: Slavery and the Aboriginal Labour Debate

By the mid-19th century slavery and the Aboriginal labour debate were clearly linked. In the 1860s religious and humanitarian bodies began to invoke ‘charges of chattel bondage and slavery’ to describe north Australian conditions for Aboriginal labour.76 While initially such charges were confined to Melanesian indenture or the ‘Kanaka traffic’, this changed in 1891 when a ‘Slave Map of Modern Australia’ was printed in the British Anti-Slavery Reporter.77 This map, reprinted from the English journalist Arthur Vogan’s account of frontier relations in Queensland, showed most of central and north Queensland, the Northern Territory and coastal Western Australia as areas where ‘the traffic in Aboriginal labour, both children and adults, had descended into slavery conditions’.78 Vogan’s book, which helped publicise the true nature of ‘dispersal’ as practised by the Queensland Mounted Police,79 ‘represented colonial race relations as rampant cruelty, slavery and extermination’.80

From this time until the 1960s the charge of slavery was regularly invoked by certain crusading journalists and human rights activists, including missionaries and unionists, in the context of Aboriginal labour. Sometimes the term used was ‘slavery’ itself; other times it was ‘conditions akin to slavery’ or ‘serfdom’. In the 1920s and 1930s ‘first-wave’ feminist reformer Mary Montgomerie Bennett argued that Australia’s treatment of Aboriginal people was in breach of the Slavery Convention.81 Bennett argued that the condition of slavery as defined by Sir Isaac Isaacs82 ‘exactly described the position of ‘our native and half-caste people’.83 At the same time she argued that Aboriginal labour was ‘forced labour’ within the definition in the Forced Labour Convention,84 which prohibits ‘work or service exacted from any person under the threat of any penalty and for which the said person has not offered himself voluntarily’.85 While this suggests a certain imprecision of terminology, Alison Holland argues that Bennett succeeded where earlier 19th century reformers had failed, using the League of Nations forum so ‘that in the context of international politics, the issue of slavery [was] revitalised and redefined’.86

Bennett and other ‘first-wave’ feminists including Bessie Rischbieth, Constance Cooke and Jessie Street were all members of the Australian branch of the Anti-Slavery and Aborigines Protection Society, a body formed in Britain in 1909 and whose very title ‘enabled a conflation of the issues of slavery and Aboriginal protection’.87 In 1943, in a speech to the Society, she characterised the value of ‘aboriginal slave labour’ in Western Australia as not less than £60,000 a year, and criticised the trust account system ‘as a policy open to fraud and grave abuse’.88 Missionaries, including the Australian Board of Missions and Aboriginal Friends Association also used the terms ‘chattels’ and ‘slaves’ to describe Aboriginal pastoral workers.89

From 1944 to 1946 the anthropologists R M and C H Berndt conducted a survey of Aboriginal labour on Northern Territory cattle stations. Initially the report was suppressed, but it was eventually published in 1987 as End of an Era: Aboriginal Labour in the Northern Territory.90 The Berndts did not apply the emotive label of slavery to their findings. This omission is not surprising given that their report had initially been commissioned by the Australian Investment Agency (Vestey’s), meaning they faced pressure from Vestey’s to produce something both politically palatable and of practical use.91 However, they commented that Aborigines:

owned neither the huts in which they lived nor the land on which these were built, they had no rights of tenure, and in some cases have been sold or transferred with the property. Their security depended on the new land-holders - a precarious security at times and in places where there were few, if any, checks or curbs on the treatment accorded these people who had, for a long period, no effective rights at law.92

The influential anthropologist Professor A P Elkin commented, on reading the report, that ‘it might not be slavery, but it is a form certainly approaching that institution’.93

From the 1920s onwards unionists also used the rhetoric of slavery to describe the conditions of Aboriginal workers. In 1932 the North Australian Workers’ Union (NAWU) characterised Aborigines as ‘slaves without the advantage of slavery’.94 Unionist Owen Rowe argued that:

[a] slave owner would not allow his slave to be decimated by preventable disease and starvation the same as these people are in the country or bush. If there is no slavery in the British Empire then the NT is not part of the British Empire; for it certainly exists here in its worst form.95

Such arguments were not disinterested advocacy for the improvement of Aboriginal conditions. Rather they were a means of distinguishing the situation of Aboriginal workers (who at this time were not unionists and whom the unions made no effort to recruit) from that of the white workers who were their real constituency. In 1927 Owen Rowe organised a boycott of two hotels which had employed Aboriginal labour ‘and got an agreement with the hoteliers not to employ Aboriginal workers’.96 In 1928 he stated that the unions ‘were not objecting to the abo. (sic) on the ground of color, but on economic grounds, as the black slave was competing with the unskilled white worker’.97

After World War II, however, the NAWU changed its position, with Aboriginal workers and unionists working together to improve Aboriginal conditions and have the invidious Aboriginals Ordinance 1933 (Cth) (‘1933 Ordinance’) repealed. It continued to characterise Aboriginal wages under the 1933 Ordinance as ‘slave rates’.98

Even after the repeal of the 1933 Ordinance the term ‘slavery’ was still used to describe the conditions of Aboriginal workers in the Northern Territory, particularly those in the pastoral industry. In 1958, when the well-known artist Albert Namatjira was convicted of supplying liquor to a ward, the Aborigines Advancement League briefed Melbourne barrister Maurice Ashkanasy to appear before the Northern Territory Supreme Court on his appeal. Ashkanasy argued that the Welfare Ordinance 1953 (Cth) (‘Welfare Ordinance’) was unconstitutional as not being for the ‘peace, order and good government’ of the Northern Territory under the Northern Territory (Administration) Act 1910 (Cth). He gave as an example of a law outside the Territory’s constitutional power ‘a law for the enslavement of part of the population of the Northern Territory’.99 The reference to the 1933 Ordinance - or indeed to the Welfare Ordinance itself - can scarcely have been unintended.100

In the 1960s the economist and lawyer Frank Stevens, who carried out extensive first-hand research on Northern Territory cattle stations between 1965 and 1967, characterised the relations between cattlemen and Aborigines as ‘the Territory form of peonage’.101 Peonage is legally defined as compulsory labour in payment of a debt.102 John Kelly, who had researched Vestey and Bovril-owned cattle stations in Northern Australia for many years, also wrote in 1966 that Vestey’s had ‘gained immensely from Aboriginal slave labour. It is very heavily in debt to the Aboriginal, as well as other Australians’.103

One might expect that officialdom – particularly representatives of the Northern Territory Administration and responsible Commonwealth Ministers-would have strongly rejected the use of the term ‘slavery’ in the Aboriginal labour debate. Dr Cecil Cook, the Chief Protector of Aborigines from 1927 to 1939, opposed cash wages for Aboriginal workers in the pastoral industry. Cook argued that cash was ‘the greatest single factor in the degradation of the native brought into contact with white civilisation’.104 He even argued that displaced, nomadic Aborigines could be used as cheap labour in otherwise unprofitable plantation industries such as the ‘cultivation of cotton, sisal hemp, and coconuts for copra production’.105 According to Ann McGrath, Cook considered that ‘Aborigines had unique characteristics and freedoms of choice which made them the opposites of slaves’.106

Somewhat surprisingly, however, this was by no means a consistent official view. In 1898 the Territory’s Judge and Government Resident Charles Dashwood wrote that Aboriginal people who were ‘run down’ or kidnapped from their traditional lands and taken to work on distant stations were ‘virtually slaves’.107 The responsible South Australian Minister refused to approve indentures for the unpaid apprenticeship of two Northern Territory Aboriginal children on the grounds that they represented ‘an open door to slavery dimly disguised’.108 In 1927, in a comment quoted in the Stolen Wages report, the Northern Territory Chief Protector Herbert Basedow said that pastoral workers ‘are kept in a servitude that is nothing short of slavery’.109

In the early 1930s, Cecil Cook himself used the slavery analogy to advocate the extension of his Apprentices (Half-Castes) Regulations 1930 to central Australia.110 He argued that the cattle industry had the responsibility to provide improved conditions of employment for their ‘half-caste’ apprentices, in order to give them ‘an opportunity of evolving, more or less, into a white man’. He pointed out that Australia was in breach of its obligations under the Slavery Convention, since the conditions of half-castes under the age of 21 in Central Australia amounted to ‘forced labour analogous to slavery’.111 It is not clear how Cook reconciled this view with his support for the similar or identical conditions in which other Aboriginal employees lived and worked. It would appear that, in Cook’s view, the Slavery Convention was applicable to ‘half-castes’ alone.

Responsible Commonwealth ministers also referred to slavery in the context of Aboriginal labour. Arthur Blakely, the Minister for Home Affairs, wrote of the Northern Territory pastoral industry in 1930 that ‘[i]t would appear that there was a form of slavery in operation and that aboriginals were being worked without any remuneration whatsoever’.112 In 1945, the Acting Director of Native Affairs, V G Carrington, wrote that ‘[i]f it were not for the fact that natives can leave employment at will and have protection from ill treatment, their position would be little less than slavery’.113

Discriminatory wage rates for Aboriginal workers were declared unacceptable in the Northern Territory cattle industry in the Equal Wages decision in 1966. They had disappeared from most if not all Northern Territory awards by the time the Wards’ Employment Ordinance 1960 (Cth) (‘Wards’ Employment Ordinance’) was repealed in 1971.114 From the early 1970s, perhaps unsurprisingly, the concept of slavery seems to have disappeared from popular debate about the conditions of Aboriginal workers.

At the same time, however, it entered a debate among prominent academic historians concerning whether Aboriginal labourers, particularly on northern cattle stations, could be regarded as ‘free’ or ‘unfree’. Raymond Evans, who led the ‘unfree’ school from the 1970s, drew attention to ‘striking parallels across time and space between the condition of the slave and the unfree Aboriginal worker’.115 He argued that the term ‘Aboriginal slavery’ ‘may be applied not simply as a loosely analogous term of opprobrium, but as one which may be defended with academic precision and rigour’.116 On the other hand, cultural historians such as Ann McGrath argued that Aborigines were ‘never truly colonised’.117 She highlighted the way in which ‘Aborigines used the cattle station for their own purposes; they managed to secure European goods, as well as maintain links with their land and follow the precepts of Aboriginal law’.118

More recently, Thalia Anthony has argued that ‘the freedom/slavery dichotomy that traditionally frames scholarly debate does not apply to labour relations on northern cattle stations’.119 She considers that an analysis of the feudal qualities of the northern cattle industry would transcend the narrowness of the ‘free’ versus ‘unfree’ debate, so that the land interests of Aborigines and colonisers could be seen more productively as the product of labour relations to land. Anthony argues that ‘[c]onceptions of Aborigines as slaves understate the maintenance of Aboriginal moral communities on cattle stations. Aboriginal workers were a far cry from the ‘natally alienated’ north American plantation slaves’.120 According to Anthony, the fact that Aboriginal workers remained on or near their traditional lands rather than being recruited from remote regions makes a state of slavery ‘almost impossible to achieve’. She supports McGrath’s view that the maintenance of traditional Aboriginal cultural practices ‘precluded pastoralists’ total “ownership” of Aborigines, a prerequisite of slavery’.121

At the same time, Anthony points to ‘the arbitrary powers that pastoralists exercised brutally on the frontier’.122 She highlights the control exercised by the ‘Boss’ or ‘Missus’ over Aboriginal lives, control which included ‘restrictions on the movement of station labour, place of residence, family life and expenditure of finances’.123 Pastoralists had ‘unbridled powers, while Aboriginal workers were denied access to any bargaining process, freedom of movement or the right to refuse to work’.124 By the 20th century violence was less often required, but Aborigines had ‘little choice other than station life’. Station runaways ‘would be forced to return to stations to seek food and companionship’. Protective legislation ‘had little bearing on the personal administration of northern cattle stations’.125 Pastoralists allowed workers on some stations to maintain traditional cultural practices because they were dependent on their labour. While some Aboriginal workers have fond memories of their days as stockworkers, this is coupled with resentment at their treatment, particularly the lack of wages. According to Barney Barnes, ‘[n]one of us got paid in money, we only got clothes and food. We were just like prisoners…we were working like slaves’.126

Anthony’s view of slavery as total ownership is considerably narrower than the definition in international and Australian law. On the other hand, her analysis of relations of control and submission on the pastoral frontier is highly consistent with the definitions of slavery adopted in Wei Tang, Decha-Iamsakun, Kozminski and by the Tokyo Women’s Tribunal.

It is true that popular - and indeed academic historical - understandings of the concept of slavery have not always been consistent over time.127 Nevertheless, even those historians who emphasise the strategies of resistance adopted by Aboriginal station workers also recognise the high level of control and submission inherent in the relations of power. According to Curthoys and Moore:

[r]egardless of how historians may quibble over technology, ex-slave status is ‘seared into the consciousness’ of Aboriginal and Melanesian peoples in Australia, and the position of indigenous Australians as ‘colonised labour’ is affirmed by the low paid low status work most continue to perform, and their high rates of unemployment and underemployment.128

On the question of contemporaneous understandings perhaps an Aboriginal voice should have the final say. Jack Sibley was one of the complainants in a case concerning alleged discrimination against Aboriginal workers on Palm Island. In evidence, Sibley aggressively likened his lot to that of a slave in Uncle Tom’s cabin: ‘I was one of them slaves here see. I’m a slave on Palm Island.’129

IV Aboriginal Labour in the Northern Territory: A Historical ‘Case Study’

The Stolen Wages report contains a wealth of information and references concerning the history and development of the issue in Queensland and New South Wales. This emphasis ‘reflects the fact that this issue has received widespread recognition in those states, particularly within the Indigenous communities’.130 While other jurisdictions are relatively under-researched, the evidence presented to the Inquiry ‘has still been sufficient to demonstrate that Stolen Wages is a national issue, not one isolated to Queensland and New South Wales’.131 It recommended that jurisdictions outside Queensland and New South Wales consult with Indigenous people and conduct further research on the question of whether ‘similar practices operated in relation to the withholding, underpayment or non-payment of Indigenous wages and welfare entitlements in these jurisdictions’.132

This section considers the Northern Territory as a historical case study of Aboriginal labour practices in the context of the slavery debate. This is partly an attempt to provide an answer to the question posed by the Stolen Wages report as to whether ‘similar practices operated’ outside Queensland and New South Wales. More compellingly, it is because some Northern Territory labour practices, particularly in the pastoral industry, provide a graphic example of what an Australian form of slavery might have looked like.

A The Territory during the period of South Australian administration 1863–1911133

It is clear that the Northern Territory’s pastoral industry could not have developed or survived without Aboriginal labour. Tony Austin argues that ‘there could be no doubt about the utter reliance of the [pastoral] industry on supposedly inefficient Aboriginal labour’134 during South Australian administration. Aboriginal stockmen possessed ‘horsemanship, a capacity for long hours in unrelenting heat, and an unmatched knowledge of bushcraft and the land’.135 According to Ann McGrath, the northern pastoralists ‘desperately needed’ Aboriginal labour.136

When South Australia took over administration of the Northern Territory on 12 November 1863, Northern Territory Aboriginal people became subject to South Australian law. In the early South Australian period, laws designed for the Aboriginal population of South Australia, particularly of Adelaide, were theoretically applicable in the far-flung ‘wastelands’ of the Northern Territory. Thus, Ordinance No 12 of 1844, An Ordinance to provide for the Protection, Maintenance and Upbringing of Orphans and other Destitute Children of the Aborigines, provided that:

any two Justices, with the consent of His Excellency the Governor and of either of the parents, if living and within the Province, but if otherwise without such consent, on the application of the Protector of the Aborigines, to bind by indenture and put out any half-caste or other Aboriginal child having attained a suitable age as an apprentice, until he shall attain the age of twenty-one years, to any master or mistress willing to receive such child in any suitable trade, business or employment whatsoever, and every such binding shall be as effectual in law to all intents and purposes as if the child had been of full age, and had bound himself to be such apprentice, provided also that such Justices shall see that in the indenture due and respectable provision is made for the maintenance, clothing and humane treatment of any such apprentice.137

No provision was made for wages.138 Instead Aboriginal workers were paid in ‘food, tobacco, clothing and perhaps some medicine for themselves, and food for varying numbers of relatives’.139 Non-payment of wages to Aborigines was consistently justified on the basis that Aboriginal labour was inefficient;140 that ‘uncivilised’ Aboriginal employees had ‘no idea of the value of money and no means of spending it’;141 and, that station-owners were obliged to maintain non-working Aboriginal dependants in addition to the person being employed.142

It was generally accepted that ‘firmness’ was a necessary ingredient of workplace relations on pastoral estates, since ‘it was important to keep the Aborigine in his proper place - to stand no insolence or disobedience’.143 ‘Firmness’ was a euphemism for what today would be called physical abuse. Sexual abuse, while commonplace, was generally not referred to at all.144

In the early 1870s the Larrakia people, who had been displaced from their traditional land in Darwin, were employed cutting wood, clearing land, and labouring on building sites, as well as for various types of domestic and other work.145 In return they received ‘a little flour and the scraps from the table’.146 By the 1880s prisoners, including Aboriginal prisoners,147 were employed on such public works as the construction of a fenced bathing pool at Fort Hill in 1880; the installation of terraced gardens on the slopes surrounding the Residency in 1882;148 and, the construction of a new house for the Deputy Sheriff, John George Knight.149 Aboriginal labour was also used extensively in the short-lived Jesuit mission at Rapid Creek.150

In July 1898 Northern Territory Judge and Government Resident Charles Dashwood provided a report arguing a case for protective legislation along similar lines to legislation passed in Queensland in 1897.151 Dashwood urged legal protection against practices such as ‘running down’, which referred to the kidnapping of boys and girls for the purpose of work and sexual companionship on stations far away from their homeland.152 According to Dashwood extreme cases of mistreatment included instances where Aboriginal women were employed ‘simply for the purpose of having carnal knowledge or intercourse’.153 Dashwood was invited to draft the bill himself.154

There was intense opposition to the Bill in the Northern Territory. This came particularly from pastoralists such as Joseph Bradshaw, the lessee of ‘Bradshaw’s run’, who wrote to a Select Committee of the South Australian Legislative Council established to report on the Bill, commenting on the impracticability for pastoral lessees of traveling great distances to obtain employment licences.155 The influential F J Gillen, at that time a Sub-Protector of Aborigines, commented in reply to a question about permits and written employment agreements, that ‘[i]t is the thin edge of the wedge of slavery to introduce the permit system in the case of the blacks’.156 This is an odd remark given that the permit system was designed to eliminate, not enshrine, practices amounting to chattel slavery. This opposition, added to by an injudicious remark of Dashwood’s about whites who ‘shot the blacks down like crows’,157 led to the failure of the Bill in the South Australian Upper House.158 However, the impetus for some form of protective legislation became irresistible by the time the Commonwealth took over the administration of the Northern Territory in 1911.

B Protection and control 1911–1953: the Aboriginals Ordinances

The Northern Territory Aboriginals Act 1910 (SA) (‘NT Aboriginals Act’) and its successor, the Aboriginals Ordinance 1911 (Cth) (‘1911 Ordinance’) established two categories of people - Aboriginals and ‘half-castes’ - who were to be subject to somewhat different regimes of ‘protection and control’. Under section 3 of the NT Aboriginals Act an Aboriginal included ‘an Aboriginal native of Australia; or a half-caste who lives with such Aboriginal native or lives or associates with them; or a half-caste child up to 16 years old’. A ‘half-caste’ meant ‘the offspring of an aboriginal mother and other than an aboriginal father, unless such a person was deemed to be an aboriginal’. In 1918 the Commonwealth passed a new and more detailed Ordinance: the Aboriginals Ordinance 1918 (‘1918 Ordinance’) in which the definitions were altered to include as Aboriginal a ‘half-caste male child whose age does not apparently exceed eighteen years’, as well as ‘a female half-caste not legally married to a person who is substantially of European origin or descent and living with her husband’.

Under section 23 of the NT Aboriginals Act no person could ‘continue to employ an aboriginal or any female half-caste unless such person has a licence to employ aboriginals in the prescribed form for the time being in force’.159 Under section 24 a person wishing to obtain a licence had to apply to the Protector of the district.160 The regulations required the applicant to set out the ‘nature of the employment in which aboriginals are proposed to be employed’, and the ‘conditions of employment and the wages proposed to be paid’. The regulations also stipulated that the Protector could ‘refuse to grant any licence unless he is satisfied that the wages to be paid and the conditions of employment are reasonable and just’.161 However, no provision actually required wages to be paid.

Under section 46 the Protector could also ‘take possession of, retain, sell or dispose of and give valid title to any…property, whether real or personal’ of an Aboriginal or ‘half-caste’, and could:

exercise in the name of any aboriginal or half-caste any power which the aboriginal or half-caste might exercise for his own benefit, provided that the powers conferred by this section shall not be exercised without the consent of the aboriginal or half-caste, except so far as may be necessary to provide for the due protection of such property.162

In 1913 the Administrator, Gilruth, instituted a Trust Account system for the first time. The Trust Account had the same results for Aboriginal workers as did similar accounts elsewhere in Australia. Trust Account books could be easily falsified. Aboriginal people signed with a cross to withdraw their money. In other cases, ‘money was released simply on the say-so of someone in authority’.163 Workers did not understand their rights, or how the Trust Account operated. By 1917 there were 481 accounts worth £1,448; in May 1920 £1,184 of unclaimed money dating back to the inception of the scheme went into consolidated revenue.164

The 1918 Ordinance gave the Chief Protector a number of additional ‘duties’ exercisable in relation to ‘the aboriginals’, including ‘general supervision and care over all matters affecting the welfare of the aboriginals, and to protect them against immorality, injustice, imposition and fraud’. These powers were not strictly exercisable in relation to ‘half-castes’. Under section 15 a Protector could ‘if he thinks fit give authority in writing to any person so desiring it for the removal of any aboriginal, or any female half-caste, or any half-caste male child under the age of eighteen years, from one district to another’.165 Part IV contained new and more detailed provisions regarding employment licences. A person wishing to employ any aboriginal within a Town District had to enter into an employment agreement in addition to obtaining a licence. An employer in country districts was required to obtain a licence but did not need to enter into an employment agreement.

Nearly a year after the 1918 Ordinance came into force regulations pursuant to it were published in the Commonwealth Gazette.166 These provided for wages for Aboriginal and ‘half-caste’ apprentices in Town Districts. Only part of each week’s wage was to be paid to the apprentice, with Regulation 8 providing for ‘[t]he difference between the amount to be paid to the apprentice and the amount due [to be] paid every four weeks to his credit in the Aboriginal Trust Fund at the Chief Protector’s Office in Darwin’. The Regulations also set a wage of 5s per week for employment of aboriginals in town districts, of which 2s was to be paid to the Chief Protector or Protector to keep on trust. This was the first time employers (at least in town districts) were required to pay cash wages. It was also the first time the trust account system had been formalised in legislation.

Aboriginal employees in country districts did not fare so well. The application for a licence to employ Aboriginals in a country district (Form 2) required the applicant to:

Undertake to pay wages at the rate of 5s. per week and provide food, clothing and tobacco…and if requested in writing by the Protector, to pay to the Protector a proportion of such wages, to be held in trust for the aboriginals, such proportion to be not less than 10s every month.

The applicant also undertook to keep a record of native labour employed, the nature of their employment, and the wages paid (including the amount paid to the Aboriginal Trust Fund). These records were to be kept open for inspection by the Protector at any time.167 Where Aboriginals were only ‘employed temporarily’, the Regulations required only that the employer state the ‘approximate maximum number’ employed (Form 4). An employer in country districts could avoid paying wages by classifying employees as ‘temporary’ rather than ‘permanent’.168

The 1933 Ordinance introduced a new section 29A to the 1918 Ordinance. Section 29A(1) enabled the Chief Protector, or any authorised Protector, to direct an employer to pay to him a prescribed portion of the wages of any employed Aboriginal. All such moneys received were to be paid into a trust account. When the amount to the credit of the individual employee reached £20 the money was to be withdrawn and paid to the credit of a trust account in the individual employee’s name.169 Such money could be spent by the Chief Protector or authorised Protector on behalf of, or for the benefit of the employee. It could also be spent by the employee with the Chief Protector’s or authorised Protector’s approval.170

More significant changes were made by new regulations under the 1933 Ordinance.171 Regulation 14 prescribed conditions on the grant of a licence to employ Aboriginals in country districts. The grantee of a licence was required to pay wages at the rate of 5s per week for each Aboriginal employed by him, plus food, clothing and tobacco.172 However, the loophole allowing country employers to avoid paying wages was greatly expanded by a new provision under Regulation 14 which provided:

where it is proved to the satisfaction of the Chief Protector that the grantee of the licence is maintaining the relatives and dependants of any aboriginal employed by him, the Chief Protector may exempt the grantee from the payment of any wages in respect of that aboriginal.

This provision, which Cecil Cook had pushed through at the 1930 conference, did not even include a requirement that rations for relatives and dependants be nutritious. According to Ann McGrath, this had dire consequences for the health of workers and other displaced Aboriginal people living on stations with nowhere else to go.173

The 1933 Ordinance engendered a significant worsening in the conditions of Aboriginal people subject to it, particularly those in country districts. Large concerns such as those owned by the Vestey Group and Bovril remained ‘laws unto themselves, profiting at the expense of Aboriginal labour’.174 Violence was used with impunity, even by the police.175

Wages in the towns at this time continued to be paid into the Trust Account.176 Val McGinness, who started working as message boy for the Administrator in 1922 at the age of 12, recalled that he was only ever able to draw two-thirds of his wage and that the rest went straight into the Aboriginal Trust Fund:

And whatever happened to that trust money that we put in there, I really don’t know from that day to this…There was no bank book; there was no record of anything, as far as I can remember. But they said that the money that we put in went towards building houses for part-Aboriginals that were exempted from the Aboriginal Department, or something to that effect anyway…I got a hundred and fifty pounds from my house, for the amount that I put in. But the balance of the trust money that we was putting in ever since 1922, approximately, I don’t know what happened to that.’177

According to Austin, the relevant government departments178 made little effort to recover money owed by employers to the Trust Account, and the Trust Account administration generally was very poor. Sums unclaimed after six years were placed into consolidated revenue,179 and sporadic efforts by Acting Administrator Carrodus and Cook to have these moneys used for the benefit of Northern Territory Aborigines were successfully resisted by Treasury.

As noted above, the anthropologists R M and C H Berndt investigated conditions on Northern Territory cattle stations from 1944 to 1946.180 According to their research Vestey’s considered that ‘it would be absolved from making a payment of five shillings a week to its Aboriginal employees, provided that the cost of supporting their dependants and the aged and infirm people on the station exceeded the proposed aggregate amount’.181 This led to the employer inflating the number of people listed as dependants and under-estimating the number of people employed, a practice apparently condoned by the local Protector, who approved of ‘casual employment for dependants’.182 More generally, Vestey’s displayed ‘no more than superficial’ attention to Government regulations relating to the employment of Aborigines, and sent in misleading and inaccurate employment returns.183

In addition to wage violations Indigenous people were subjected to other forms of cruelty. Children under 12 were employed in open disregard of the 1933 Ordinance.184 Figures detailing the provision of clothing and food supplies were inflated; employees and dependants were given mouldy food and scraps discarded by the Europeans.185 Whole beasts were charged to their account but not actually received, with dependants receiving only offal and bones.186 Violence was used.187 Medical treatment was inadequate or non-existent; boils or other painful conditions were common, as was undernourishment.188 Europeans treated the Aboriginal employees in a manner which aroused their ‘furious but impotent resentment’.189 An atmosphere of dissatisfaction and disillusionment prevailed amongst Aboriginal employees, who believed that ‘their future and that of their children - those few who were present - was not only strictly circumscribed but seemed to lead nowhere…What was made clear to them was their eventual disappearance as a people and their replacement by others’.190

In February 1947 a conference of government representatives and pastoralists was called to consider the conditions of Aboriginal workers in the pastoral industry. Under regulations passed pursuant to this agreement, Regulation 14191 of the 1933 Ordinance ceased operation in relation the employment of Aboriginals in the pastoral industry.192 However, an equivalent loophole was provided:

[w]here the licensee and a Protector authorized in writing in that behalf by the Director agree that an aboriginal is not sufficiently competent to be paid the appropriate rate…the licensee may employ that aboriginal at such lesser rate as is agreed upon between the licensee and the Protector.193

In other words, employers could avoid paying wages altogether by having a worker classified as incompetent.

Both unions and Aboriginal people were excluded from this conference. During these post-war years, unions and Aboriginal people ran a campaign which eventually resulted in the repeal of the 1933 Ordinance and its replacement by general legislation: the Welfare Ordinance.

C Assimilation and ‘special measures’: the Welfare Ordinance and the Wards’ Employment Ordinance

The Welfare Ordinance and its complementary legislation, the Wards Employment Ordinance, were the legislative expression of the new policy of assimilation announced by the Minister for Territories Paul Hasluck in 1951. Superficially, the Ordinances were applicable to anybody: each assiduously avoided any reference to race. However, as no adult person eligible to vote could be declared a ward, and as ‘aboriginal natives’ were not in 1953 eligible to vote, in reality only Aboriginal people could be declared wards.194

The Welfare Ordinance gave the Director of Welfare sweeping powers over wards. The Director was the guardian of a ward and the ward’s estate ‘as if that ward were an infant’ (section 24).195 He could order that a person be taken into his custody, removed to a reserve or institution (section 17), or moved within or outside the Territory (section 21). He held the property of a ward as trustee (section 25) and could pay debts, judgments, payments, allowances or other costs from the ward’s property (section 26).196 Under section 27 he was required to keep a proper record and account of all money or other property of the ward which came into his hands, and to hold the property or income for the benefit of the ward (section 28).

A Wards Appeal Tribunal was established under section 30 to hear and determine appeals by wards for the revocation of declarations made under the Wards’ Employment Ordinance. It was constituted by a judge of the Northern Territory. No person was permitted to ‘habitually live with a ward’ unless he was ‘a ward or a relation of the ward’ (section 61), and a male other than a ward was prohibited from having or attempting to have sexual intercourse with a ward (section 64). A non-ward was not permitted to marry a ward without the consent of the Director (section 67), a provision which led to nationwide controversy when the Director of Welfare, Harry Giese, refused permission for such a marriage in 1959.197

In short, the powers of the Director over wards were as broad as those exercised by the former Native Affairs Branch over persons defined as ‘aborigines’ under the 1918 Ordinance. In some important respects they were broader. For example, even the 1918 Ordinance did not automatically make the Chief Protector the legal guardian of all Aborigines. The legislation had idealistic goals, but its methods ‘relied on the enforcement of authoritarian, repressive regulations and techniques of control which were in direct contrast with the optimistic and liberal rhetoric of rehabilitation and assimilation’.198

At the same time as the Welfare Ordinance the Government passed the Wards’ Employment Ordinance. Part IV of the Wards’ Employment Ordinance governed the employment of wards. Under section 32 a person could not employ a male ward unless he was the holder of a valid licence to employ male wards; a female ward could not be employed without a licence to employ female wards.

Under section 38 a licensee was not permitted to employ a ward except in accordance with the prescribed conditions of employment and at the prescribed wage for the employment of the ward. The prescribed conditions were specified in the regulations; the prescribed wage was the wage specified by the Administrator in the Gazette as the wage payable to a ward in the relevant industry or calling.199 However, under section 38(3) of the Wards Employment Ordinance a licensee was permitted to employ a slow, aged or infirm ward under a wage less than the wage prescribed, provided the wage was agreed upon between the employer and a welfare officer. As Rowley notes, there ‘was no safeguarding cross-reference to definitions of the “slow worker” established in the general industrial legislation; therefore the ward’s wage could cease to be an effective minimum’.200

During this period the Administration maintained that many Aboriginal workers, particularly outside the pastoral industry, were in fact receiving wages in excess of the prescribed rate.201 Wages for Aboriginal people were better particularly in the shipping industry, and other places where union representation was strong, or where Aboriginal and non-Aboriginal people had formed close bonds. Nevertheless, Aboriginal people on pastoral estates, particularly women, continued to work in appalling conditions. In the professional households of Darwin Aboriginal people continued to be employed as public servants’ servants. At Darwin’s Bagot Reserve and on other government settlements wards’ wages were docked as part of a ‘system of payment for food and board for settlement dwellers’.202

The days of the Welfare Ordinance were numbered, particularly after amendment to the Electoral Regulations meant that no further Aboriginal people could be added to the iniquitous ‘Stud-Book’, the so-called Register of Wards. The Equal Wages decision also placed considerable pressure on the Government to repeal the Wards’ Employment Ordinance. In any case this legislation had become a logical and legal anachronism after 1964 when the legal category of ‘ward’ ceased to exist. Nevertheless, the Northern Territory Administration maintained that the Wards’ Employment Ordinance was necessary, in part because some Aboriginal people continued to be employed in award-free industries, particularly domestic labour.

In November 1966 the Wards’ Employment Regulations repealed the Wards’ Employment Regulations 1959. The new regulations prescribed terms and conditions for wards not employed under a general award (Regulation 6). They provided that an employer should pay to a ward ‘the wages and other moneys payable to the ward at the time and in the manner specified in an award or industrial agreement applicable in respect of the calling or industry in which the ward is employed’ (Regulation 7). They also provided that awards or industrial agreements relating to termination of employment, payment of fares and allowances, working hours, overtime, annual-leave, sick-leave, leave without pay and other matters should apply to wards (Regulations 10-16).

Despite the Equal Wages decision and the alleged effectiveness of the Wards’ Employment Ordinance, many Aboriginal people during this period continued to work at rates considerably less than the basic wage. According to E J Hook, writing to the Department of Territories in 1965:

Aborigines who do work for the Commonwealth in the NT fall into three broad classes:

(a) those occupying established positioning the Cth Service who are being paid standard public service rates of pay

(b) those working in Cth departments who do not occupy established positioned and who are paid at rates less than the basic wage

(c) those living on a government settlement who, on a more or less regular basis, perform the necessary odd jobs around the settlement and are paid an amount weekly at a rate substantially less than the basic wage.203

Hook considered that whether persons performing work in categories (b) and (c) were ‘employees’ posed ‘a mixed question of fact and law’. This question could ‘rarely be susceptible to a definitive answer’. It could be argued that Aborigines ‘who do odd jobs around the settlements without occupying any established positions’ were employees and therefore subject to Award rates. However, he considered that ‘the possibility of claims being made that persons within this class are ‘employees’ may be reduced if care is taken to ensure that none of the trappings of the employer-employee relationship permeates the arrangements made with them’.204

Although Hook was writing before the Equal Wages decision his arguments anticipate that decision and are equally applicable to Aboriginal people working on government settlements after it. Missions were equally able to employ the argument that Aboriginal people doing ‘odd jobs’ on the mission were not actually ‘employed’.

It is doubtful whether Aboriginal people working on missions during the 1960s could be regarded as enslaved. It would be necessary to show, in addition to the lack of any (or at least any adequate) pay that potential claimants worked and lived under conditions of physical and possibly psychological coercion of the sort recognised as necessary in the case law discussed above. However, many Aboriginal pastoral workers of an earlier period – lasting, at the very least, until the 1950s, and quite likely well into the welfare and assimilation era – would appear to have lived in conditions satisfying the criteria for slavery. Those existing under the horrific conditions described by R M and C H Berndt would appear most clearly to satisfy these criteria. However, this is simply because the Berndt Report is the most detailed of many similar descriptions: from Dashwood’s time onwards it is clear that Northern Territory Aboriginal people worked under conditions of physical and psychological coercion, violence, degradation and sexual abuse.

V Concluding Comments: ‘Judging the Past’ – Slavery, Stolen Wages and the Courts

The courts have thus far evinced a marked unwillingness not merely to express opinions about whether the conditions under which Indigenous people existed in the 19th and 20th centuries amounted to slavery, but even to admit the relevance of this issue to legal disputes. In Cubillo v Commonwealth205 the Full Court of the Federal Court stated:

We make one further observation. We are, of course, conscious of the controversy surrounding the existence or otherwise of what has become known as the ‘Stolen Generation’. Neither the primary judge nor this court was asked to make findings on this issue, and it would be inappropriate for us to do so… Our task, like that of the primary judge, is to decide the issues presented to us in accordance with law.206

From a lawyer’s perspective, the question of whether past actions are justifiable by today’s standards is clearly separate from the question of whether they were justifiable by the standards of the time. However, evidence from historians about ‘the standards of the time’ has received only limited acceptance in the courts. According to Hal Wootten this is because courts are not established ‘for the purpose of ascertaining truth’ but are rather ‘machinery to bring disputes between parties about certain kinds of issues to an end in an acceptable way’.207 Expert evidence from historians is generally regarded as useful only when it concerns matters of objective historical fact, not questions of interpretation or ‘truth’.

It is unlikely that a successful prosecution for slavery could be brought 40 years or more after the event. A constitutional challenge to provisions in laws such as the 1911 Ordinance for breach of Imperial statutes prohibiting slavery is perhaps more likely to succeed, although it is not immediately clear how a finding of invalidity would practically assist those who suffered under such provisions. In any event, it is beyond doubt that court processes in both native title and stolen generations litigation have generally disappointed Indigenous litigants. According to Deborah Bird Rose:

[m]ost of the evidence in the Yorta Yorta case, particularly the oral testimony of Indigenous witnesses concerning their traditional laws and customs, was ignored by Justice Olney. He took his analysis back to the first texts he thought he could make sense of, and thus he relied very heavily on the work of [European squatter] Edward Curr.208

Two of the Indigenous claimants, Jan Muir and Monica Morgan, wrote that:

[t]he Yorta Yorta experience left many scars from the terminology, the theories, and the judge’s decision which made an impact on our community. Especially hurtful was the way the role of women was portrayed as insignificant. I felt that the sexist attitude of Justice Olney, Federal Court judge rejecting the latest claim in 1999, was outlandish in its own right.209

This indicates that litigation is unlikely to meet the expectations of litigants in the stolen wages cases. Indeed, Hal Wootten has argued that courts are inappropriate places to decide issues of Aboriginal injustice such those relating to native title and the Stolen Generation. He considers that this is a consequence of the inherent nature of the judicial and adversarial process, in which issues to:

be decided as questions of fact are just the kind of issues that are unsuitable for adversarial judicial determination. Unspecialised judges are called on to decide extraordinarily complex issues about the culture, cultural continuity and history of societies that are quite foreign to what their personal and professional lives have prepared them to do, magnifying the scope for misunderstanding and misinterpretation that, as I have already noted, exists whenever courts have to venture into unfamiliar territory.210

Wootten argues that what is at stake for Indigenous people in such cases ‘is not the vindication of rights that they possessed, but redress for what happened to them when they were accorded no rights’.211 Courts, he argues, are only suited to inquire into narrow issues such as ‘individual slip-ups by government officers that made their particular actions unlawful’, rather than the far-reaching ‘effects of a legislatively authorised policy’.212 Thus, in the case of the Stolen Generation ‘a great interracial human tragedy’ may be reduced to a question of whether a plaintiff can prove ‘that a long dead illiterate mother did not consent to her removal as a baby’.213 In land rights cases the injustice of dispossession is legally of marginal importance in comparison to the question of extinguishment, that is whether the plaintiffs can prove that:

notwithstanding two hundred years of dispossession, the disruption of protection and the regimentation of assimilation, they have maintained a recognisable group identity and a continuity of traditional association with the land.214

However, this is not to suggest that the concept of slavery should be disregarded as irrelevant to potential stolen wages claimants. On the contrary, as this article has argued, there is strong legal support backed by historical evidence for a finding that slavery existed. Perhaps more importantly, recognition of its existence will be a central component in potential reparations payments if a tribunal is established pursuant to the recommendations of the Stolen Wages report. Without recognition of the relevance of the notion of slavery to the stolen wages issue a true recognition of the depth of Aboriginal grievance on this issue cannot occur.

[1] Standing Committee on Legal and Constitutional Affairs, Australian Senate, Unfinished business: Indigenous stolen wages (2006) (‘Stolen Wages report’).

[2] According to Mr Peter Bird: ‘My brother and I got sick and tired of this, of being under such a regime. We were supposed to be freeborn people but we became prisoners within our own country’: ibid 66. See also, statements made by Mr Alan Griffiths, ibid 54.

[3] Submission 18, ibid 99.

[4] Ibid 91.

[5] The terms of reference refer to ‘Indigenous workers whose paid labour was controlled by government’: ibid 1.

[6] Chris Graham, ‘The Big Read: Our Slave Past’, National Indigenous Times, 8 February 2007 <> at 17 April 2007.

[7] See especially, Slavery Convention, opened for signature 25 September [1927] LNTSer 19; 1926, 60 LNTS 253 (entered into force 9 March 1927) (‘Slavery Convention’); and, applicable law under the Slave Trade Act 1824 (UK).

[8] See especially, Raymond Evans, ‘Kings in Brass Crescents: Defining Aboriginal Labour Patterns in Colonial Queensland’ in Kay Saunders (ed), Indentured Labour in the British Empire, 1834–1920 (1984) 183.

[9] See, eg, the evidence of Jack Sibley referred to in Bligh and Others v State of Queensland [1996] HREOCA 28, 15. Marcia Langton has referred to the conditions in which Aboriginal people worked as ‘not much better than slavery’: Marcia Langton, ‘A New Deal? Indigenous development and the politics of recover’, Speech delivered at the Dr Charles Perkins AO Memorial Oration, University of Sydney, 4 October 2002.

[10] Ann McGrath ‘Modern Stone-Age Slavery: Images of Aboriginal Labour and Sexuality’ in Ann McGrath and Kay Saunders (eds), Aboriginal Workers (1995) 30, 36.

[11] Bain Attwood, Telling the Truth About Aboriginal History (2005) 88.

[12] According to Curthoys and Moore ‘[t]he word ‘slave’ is often used rhetorically, metaphorically or simply carelessly, on the tacit assumption of a simple dichotomy that one not free is a slave’: Ann Curthoys and Clive Moore, ‘Working for the White People: An Historiographic Essay on Aboriginal and Torres Strait Islander Labour’ (1995) 69 Labour History 1, 4.

[13] For a recent discussion of the use of the term ‘genocide’ see Bain Attwood, above n 11, 93. Attwood argues that the term ‘genocide’ was deliberately misused by the so-called ‘history warrior’ Keith Windschuttle to discredit the positions of historians such as Henry Reynolds and Lyndall Ryan. According to Attwood, neither Reynolds nor Ryan characterised the policies of Australian governments during the early colonisation period as ‘physical genocide’, or a conscious policy of physical extermination of Aboriginal people. Instead Ryan argued that mid-20th century policies including the forced removal of children amounted to ‘cultural genocide’. According to Attwood, Windschuttle deliberately conflated ‘physical’ and ‘cultural’ genocide.

[14] According to Dirk Moses, only one author, Phillip Knightley, ever drew a parallel between Aboriginal people in Australia and the Holocaust: A Dirk Moses, ‘Coming to terms with genocidal pasts in comparative perspective: Germany and Australia’ (2001) 25 Aboriginal History 91, 102.

[15] Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginaland Torres Strait Islander Children from Their Families (1997).

[16] [1966] CthArbRp 148; (1966) 113 CAR 651 (‘Equal Wages’).

[17] This debate pits Raymond Evans as the major proponent of the ‘unfree’ school, and Henry Reynolds and Ann McGrath as proponents of the ‘free’ school. For further discussion see Part 3, below.

[18] Moses, above n 14, 108.

[19] Ibid 98. See also, Homi K Bhaba, ‘Foreword: Joking aside: the idea of a self-critical community’ in Bryan Cheyette and Laura Marcus (eds), Modernity, culture, and ‘the Jew’ (1998) xv.

[20] Moses, above n 14, 98.

[21] Ibid 95.

[22] Ibid 101.

[23] Ibid 107.

[24] The anthropologist W E H Stanner first rebuked historians for perpetuating the ‘great Australian silence’ in the 1968 Boyer Lectures. According to Ann Curthoys, the ‘silence’ was primarily a 20th (rather than 19th) century phenomenon, a product of white Australian nationalism: Ann Curthoys, ‘Constructing National Histories’ in Bain Attwood and S G Foster (eds), Frontier Conflict: the Australian Experience (2003). See also, Samantha Wells, ‘Negotiating Place in Colonial Darwin: Interactions between Aborigines and whites 1869–1911’ (Unpublished PhD thesis, University of Technology, Sydney, 2003) 26–27.

[25] For a discussion of the Indigenous response to the Beattie Government’s compensation offer as ‘insulting’ and ‘laughable’ see the Stolen Wages report, above n 1, 96–104.

[26] For example, some Aboriginal people were angry that Premier Beattie has referred to the compensation funds as ‘taxpayers’ money’: ibid 97.

[27] Model Criminal Code Officers’ Committee of the Standing Committee of Attorneys–General, Model Criminal Code, Ch 9, ‘Offences against Humanity: Slavery’ (‘Slavery’).

[28] 47 Geo III, sess 1, c 36.

[29] For a full discussion of these treaties see Slavery, above n 27.

[30] The Slave Trade Act 1873 (UK) represented a culmination and consolidation of these enactments: ibid 1–2.

[31] Slavery Convention, opened for signature 25 September [1927] LNTSer 19; 1926, 60 LNTS 253, (entered into force 9 March 1927).

[32] MCCOC referred to Myres S McDougal, Harold D Lasswell and Lung-chu Chen, Human Rights and world public order: the basic policies of an international law of human dignity (1980): Slavery above n 27, 7.

[33] For a discussion of involuntary servitude in the United States see US v Kozminski [1988] USSC 158; (1988) 487 US 931. See also, Slavery, above n 27, 10–11.

[34] Australian Law Reform Commission Report, Criminal Admiralty Jurisdiction and Prize Draft Bill Report No 48 (1990) s 6(3).

[35] Slavery, above n 27, 14.

[36] M Cherif Bassiouni, ‘Enslavement as an International Crime’ (1991) 23 New York University Journal of International Law & Politics 445, 459 cited in Slavery, above n 27, 15.

[37] Slavery, above n 27, 15.

[38] Commonwealth, Criminal Admiralty Jurisdiction, Discussion Paper (1991) cited in Slavery, above n 27, 14.

[39] Slavery, above n 27, 21.

[40] Ibid, Pt 9.1.1.

[41] Ibid 29.

[42] See Criminal Code 1995 (Cth) s 270.

[43] [2006] VCC 637 (unreported, McInerney J, 9 June 2006) (‘Wei Tang’).

[44] Ibid 6–7.

[45] Ibid 7.

[46] Ibid 11.

[47] Ibid. The offence of debt bondage was introduced after Wei Tang’s first trial.

[48] [1992] NZCA 125; [1993] 1 NZLR 141 (‘Decha–Iamsakun’).

[49] Ibid 141.

[50] Ibid 144.

[51] Ibid.

[52] [1988] USSC 158; (1988) 487 US 931 (‘Kozminski’).

[53] The Thirteenth Amendment was passed in 1865, after the American Civil War. It overruled the decision of the United States Supreme Court in Dred Scott v Sandford [1856] USSC 9; (1856) 60 US 393, in which it was found that slaves were ‘property’ under the then Constitution, and could not sue in a federal court.

[54] Kozminski [1988] USSC 158; (1988) 487 US 931, 932.

[55] Ibid 942.

[56] Ibid 932.

[57] Ibid 949.

[58] Ibid.

[59] Ibid 950–51.

[60] Ibid 950 (O’Connor J).

[61] Ibid 955.

[62] Ibid 959.

[63] Ibid 944.

[64] Ibid 945.

[65] Ibid.

[66] Ibid 947–48.

[67] According to Brennan J, ‘[g]iven the nature of the system the Padrone statute aimed to eliminate, the statute’s use of the words ‘involuntary servitude’ demonstrates not that the statute was ‘aimed only at compulsion of service through physical or legal coercion’, ante at 2762, but that Congress understood ‘involuntary servitude’ to cover servitude compelled through other means of coercion’: ibid 958.

[68] Ibid 948.

[69] Ibid 946.

[70] Ibid.

[71] Tina Dolgopol, ‘The Judgment of the Tokyo Women’s Tribunal’ [2003] AltLawJl 74; (2003) 28(5) Alternative Law Journal 242, 243.

[72] Ibid.

[73] Ibid.

[74] Prosecutor v Kunarac, Kovac and Vukovic (ICTY Trial Chamber, Case No IT–96–23–T & IT–96–223/IT, 22 February 2001) (‘Kunarac’).

[75] Kunarac (ICTY Trial Chamber, Case No IT–96–23–T & IT–96–223/IT, 22 February 2001) [542]–[543] in Dolgopol, above n 71, 245.

[76] Alison Holland, ‘Feminism, Colonialism and Aboriginal Workers: An Anti–Slavery Crusade’ (1995) 69 Labour History 52.

[77] Ibid 52–53.

[78] Ibid 52. See also, Tony Austin, Simply the Survival of the Fittest: Aboriginal Administration in South Australia’s Northern Territory 1863–1910 (1992) 42.

[79] For an account of ‘dispersal’ or massacre practised by the Queensland Mounted Police, see Arthur Vogan, The Black Police: A Story of Modern Australia (1890) Holland, above n 76,52.

[80] Holland, above n 76, 52.

[81] Article 1 of the Slavery Convention defined ‘slavery’ as ‘the status and condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised’. According to MCCOC the Convention distinguished between slavery and forced labour, which was ‘considered to be analogous to slavery but not as heinous as it’: Slavery, above n 27, 5.

[82] Sir Isaac Isaacs defined slavery as ‘the deprivation of all kinds of property, including a man’s property in himself’: Holland, above n 76, 56.

[83] Ibid.

[84] Convention concerning Forced or Compulsory Labour (ILO No 29), opened for signature 28 June 1930, 39 UNTS 55 (entered into force 1 May 1932).

[85] Holland, above n 76, 57.

[86] Ibid 56. Holland contrasts Bennett’s work with that of 19th century humanitarians, whose work was criticised by Raymond Evans as ‘largely the result of overblown rhetoric and confused or imprecise definition of terms…charges of slavery were basically polemical and political, ‘intended to arouse a groundswell of scandalised liberal consciences, locally and overseas’’.

[87] Ibid 55.

[88] Ibid 60.

[89] McGrath, above n 10, 41.

[90] End of an Era: Aboriginal Labour in the Northern Territory, Australian Institute of Aboriginal Studies (1987) (‘End of an Era’).

[91] In particular, Vestey’s hoped that the Berndts would assist them in identifying fresh sources of Aboriginal labour, and encourage such people if possible to ‘come in’ to Vestey’s stations out of the bush.

[92] End of an Era, above n 90, 272–73.

[93] Ibid 256–58.

[94] Owen Rowe, ‘Aboriginal Employment and Conditions in the Northern Territory’, North Australian Workers Union, 16 March 1932, ANU Archives of Business and Labour (Butlin Archives), ACTU Correspondence 1–5, cited in McGrath, above n 10, 41.

[95] Ibid.

[96] Bernie Brian, The Northern Territory’s One Big Union: The Rise and Fall of the North Australian Workers’ Union 1911–1972 (Unpublished PhD thesis, Northern Territory University, 2001) 110.

[97] Ibid 111. For discussion of the position of the unions during this period see McGrath, above n 10, 40–42.

[98] Brian, above n 96, 219.

[99] Northern Territory of Australia in the Supreme Court No 194 of 1958, 9. See also, Julie Wells, The Long March: Assimilation Policy and Practice in Darwin, the Northern Territory 1939–1967 (Unpublished PhD thesis, University of Queensland, 1995) 117.

[100] Justice Kriewaldt, however, considered that protection against slavery did not rest on the provisions of the phrase ‘peace, order and good government’, but on the fact that the Northern Territory was a ‘civilised community’: Northern Territory of Australia in the Supreme Court No 194 of 1958, 9.

[101] Stevens interviewed cattlemen, stockmen, station employees and Aboriginal people on 30 of the Territory’s 210 stations, revealing evidence of fraud, abuse of privilege and dereliction of duty: Frank Stevens, Aborigines in the Northern Territory Cattle Industry (1974) 3–4.

[102] Slavery, above n 27, 9.

[103] Deborah Bird Rose, Hidden Histories – Black Stories from VR Downs, Humbert River and Wave Hill Stations (1991) 150.

[104] Tony Austin, Never Trust a Government Man: Northern Territory Aboriginal Policy 1911–1939 (1997) 173.

[105] Ibid.

[106] McGrath, above n 10, 42. In this respect, he reflected the views of the Northern Territory Pastoral Lessees’ Association (NTPLA) and other employers, who spoke of Aborigines as ‘free-wheeling pets’ in the habit of ‘going walkabout’: McGrath, above n 10, 38–40.

[107] SAA 790, Dashwood to Holder, 12/7/1898 cited in Austin, above n 78, 46.

[108] Ibid.

[109] Dr Rosalind Kidd, Submission 49, Stolen Wages report, 6.

[110] Separate administration for North and Central Australia was introduced on 1 March 1927 by Part IV of the North Australia Act 1926 (Cth). Under this legislation the Northern Territory was divided into the Territory of North Australia and the Territory of Central Australia. It was repealed by the Northern Territory (Administration) Act 1931 (Cth).

[111] Austin, above n 104, 204.

[112] McGrath, above n 10, 42

[113] V G Carrington, Director of Native Affairs, Native Affairs Branch, NT Administration, to the Administrator, 10 October 1945, in A1734, NT1969/1404, AAC. Nevertheless, Carrington considered that ‘in no case was the treatment of natives so inconsistent with the requirements of the Aboriginals Ordinance and Regulations as to warrant cancellation of a licence’. This suggests an official view condoning conditions that were little less than slavery.

[114] After the Equal Wages decision ‘slow worker’ clauses continued to operate for a period under the federal Pastoral Industry Award, the Aircraft Industry Award 1955, the Hotel Employees’ (NT) Award 1960, and the Northern Territory Pearl Fishing Award 1955. In comparison to the pastoral industry, very few Aborigines were employed under these awards.

[115] Evans, above n 8, 203.

[116] Ibid.

[117] Ann McGrath, Born in the Cattle: Aborigines in Cattle Country (1987) 175.

[118] Ibid 145.

[119] Thalia Anthony, ‘Labour relations on northern cattle stations: feudal exploitation and accommodation’ (2004) 4(3) The Drawing Board: An Australian Review of Public Affairs 117, 118–20.

[120] Thalia Anthony, ‘Postcolonial Feudal Hauntings of Northern Australian Cattle Stations’ (2003) 7 Law, Text, Culture 277 at 297.

[121] Ibid 297.

[122] Ibid 286.

[123] Ibid.

[124] Ibid 286–87.

[125] Ibid 286.

[126] Barney Barnes, ‘You can go back to your place if you want to’ in P Marshall (ed), Raparapa Kularr Martuwarra… All right, now we go ‘side the river, along that sundown way: Stories from Fitzroy River Drovers (1988) 272, cited in Anthony, above n 120, 292.

[127] According to Ann McGrath, it ‘applied to people who were bought and sold for labour purposes’, but it ‘also describes coercive labour relations, where force has been used to obtain, retain or extract labour’: McGrath, above n 10, 36.

[128] Curthoys and Moore, above n 12, 5.

[129] Bligh and Others v State of Queensland [1996] HREOCA 28, 15.

[130] Stolen Wages report, above n 1, 3–4.

[131] Senator Andrew Bartlett quoted in the Stolen Wages report, ibid 129.

[132] Recommendation 5, Stolen Wages report, ibid 127–28.

[133] The Northern Territory was under South Australian administration from 1863 until the Commonwealth took over responsibility in 1911. See, generally, Kathy De La Rue, The Evolution of Darwin 1869–1911: a history of the Northern Territory’s capital city during the years of South Australian administration (2004).

[134] Austin, above n 78, 42.

[135] Ibid 43.

[136] McGrath, above n 117, 20.

[137] Ordinance No 12 of 1844 (SA). See also, Austin, above n 82. 48.

[138] In rejecting the proposed indenture if two children under these provisions the South Australian Attorney General commented that they ‘bear a strong resemblance to slavery’.

[139] Austin, above n 78, 44.

[140] Glen McLaren and William Cooper, Distance, Drought and Dispossession: a History of the Northern Territory Pastoral Industry (2004) 162.

[141] Ibid 60.

[142] McLaren and Cooper claim that by the early 1930s ‘[s]tation owners had adopted a paternalistic role, assuming responsibility for large numbers of dependants and believing, as a result, they were justified in not paying their workers’: ibid 163.

[143] Harriet Daly, 1877, quoted in Austin, above n 78, 47.

[144] Cf Dashwood, Select Committee of the Legislative Council on the Aborigines Bill, 1899, 4 quoted in Austin, above n 78, 46.

[145] For discussion and analysis of Larrakia labour in Darwin in the 1870s see Wells, above n 24,154–60.

[146] William Harcus, South Australia: Its History, Resources and Productions (1876) 184 cited in Kathy De La Rue, above n 133, 42.

[147] ���������������������������De La Rue, above n 133, 59.

[148] Ibid.

[149] Ibid 72.

[150] In the mission’s first year ‘the Aboriginal residents and missionaries cleared and fenced an eight acre paddock and two five acre gardens. The Aboriginal workers brought in huge quantities of mangrove wood and made outhouses and fences. They also dug two wells – one over forty feet deep and five feet wide – through hard and rocky ground’: Wells, above n 29, 216.

[151] The Queensland legislation left South Australia as the only state in Australia at this point without protective legislation. See, eg, Peter Elder, Northern Territory Charlie: Charles James Dashwood in Palmerston 1892–1905 (Unpublished Honours thesis, Australian National University, 1979) 51.

[152] See, eg, SAA 790, Foelsche to Dashwood, 14/2/1898 cited in Austin, above n 78, 46.

[153] Select Committee of the Legislative Council on the Aborigines Bill, 1899, 4 cited in Austin, above n 78, 46.

[154] SAA 790/1898/333, Kingston (Premier of South Australia) to Holder 22 August 1898, cited in Elder, above n 151, 52. See also, Dean Mildren, ‘A Short History of the Northern Territory’s Legal System to the Time of Federation’ in L Mearns and L Barter (eds), Progressing Backwards: the Northern Territory in 1901 (2002) 69. See further, De La Rue, above n 133, 114.

[155] PP (SA), 1899, no.77a, p.109 cited in Elder, above n 151, 57.

[156] PP (SA), 1899, no.77, p.99 cited in Elder, above n 151, 58. For a discussion of Gillen’s opposition to the Bill see Austin, above n 78, 68–69.

[157] See, eg, Elder, above n 151, 59 and De La Rue, above n 133, 114.

[158] See, eg, Elder, above n 151, 59 and De La Rue, above n 133, 114.–15.

[159] It was not, therefore, necessary to obtain a licence for the employment of a male ‘half-caste’. Note also that the apprenticing of Aboriginal and half-caste children could continue subject to the conditions prescribed by any regulation in that behalf’: Northern Territory Aboriginals Act 1910 (SA) s 23(3) (‘NT Aboriginals Act’).

[160] Under s 24(4) of the NT Aboriginals Act no licence could be granted to any person of ‘any Asiatic race or of any other race prohibited in that behalf by regulation’. This provision was mirrored in s 23(5) of the Aboriginals Ordinance 1918 (Cth) (‘1918 Ordinance’), which provided that ‘no licence to employ aboriginals shall be granted to any male person of any Asiatic race or any race prohibited in that behalf by regulation’. Under the 1918 Ordinance, therefore, an ‘Asiatic’ woman – but not a man – could hold an employment licence. In 1925, the decline in Asian numbers led to an amendment permitting ‘Asiatics’ – either female or male – to employ Aboriginal men. In 1928 a further amendment to s 23 provided that no licence to employ female Aboriginals was to be given to any Asiatic or Negro: see Commonwealth Gazette (1928) 2332. See also, Austin, above n 78, 259.

[161] Regulations 1 and 2, Commonwealth Gazette (16/9/1911).

[162] See Austin, above n 78, 5.

[163] Ibid 80.

[164] Ibid 80–81.

[165] Section 20 (relating to unlawfully removing or enticing an aboriginal from a reserve) also only applied to ‘aboriginal’ people.

[166] Commonwealth Gazette (29 May 1919) 908.

[167] In 1928 a new Form 11 was added to the Regulations. Under a new Regulation 22, the return to be furnished in pursuance of s 25 of the 1918 Ordinance by the holder of a licence to employ Aboriginals in a country district had to include information, inter alia, about the nature of the employment and the wages paid: see Commonwealth Gazette (21 May 1928).

[168] This was formally amended in 1925: see Commonwealth Gazette (30 July 1925).

[169] Aboriginals Ordinance 1933 (Cth) s 29A(5) (‘1933 Ordinance’).

[170] 1933 Ordinance s 29A(6).

[171] See Commonwealth Gazette (29 June 1933) 935.

[172] There was no requirement that the provision of rations be at an equivalent standard to rations paid to European workers, as had been advocated by the NAWU at the conference in 1930: see Austin, above n 78, 261.

[173] Ibid 262.

[174] Ibid 265. According to Deborah Bird Rose ‘[i]t is amply clear, however, that they [Vestey’s] cared about profits and that they insisted upon extracting profits, even at the expense of the Australian nation as a whole. Aborigines were at the end of the line in a series of relationships which force one to query whether Vestey’s ever showed any accountability to any society and to any set of legal institutions.’: Bird Rose, above n 103, 149.

[175] According to Ted McFarlane, who worked at Lake Nash during the 1930s:

those policemen and with their dignity they commanded the respect, they never had to tell a Black–fellow twice what to do – or anything like that. And the Blacks trusted them. They sort of knew that they were in good hands and the behaviour of the police towards them was very, very fair and just. That’s my unbiased opinion. I didn’t care if they booted every one up the backside every time they saw them – but they didn’t do that – or if they had to boot them, they did. Of course, if they did it now, there would be the ‘do-gooders’ and missionaries and the ‘what have you’ would have their scalp straight away for assaulting an innocent, poor-hearted Blackfella. But in those days, those station Blacks they didn’t get wages, they were paid 5 shillings a week, which was put to their trust account:

Interview with Ted McFarlane (Oral history transcript) Northen Territory Archives Service NTRS 226 TS 273,12.

[176] This was on the basis, firstly, that part-payment in cash resulted in gambling and waste; and secondly, to avoid disputes between employees and employers concerning whether wages had in fact been paid: Austin, above n 78, 206. Note that prior to the election of the conservative UAP government in 1932, Minister Blakely agreed to a minimum weekly wage of five shillings, with employees in town districts to receive part-payment in cash: Austin, above n 78, 262. See also, McLaren and Cooper, above n 140, 162.

[177] Interview with Valentine Bynoe (Val) McGinness, (Oral history transcript) Northern Territory Archives Service TS No 963. McGinness says he eventually started working for higher wages in 1933 or 1934, but that money still had to go into the trust fund.

[178] In particular, the Department of Treasury and the Department of the Attorney-General.

[179] Austin, above n 78, 268.

[180] End of an Era, above n 90. See, generally, Wells, above n 99, 56–77; McLaren and Cooper, above n 140, 164.

[181] End of an Era, above n 90, 62.

[182] Ibid 62–63, 115.

[183] Ibid 220–21.

[184] Children were employed because it was an ‘article of faith’ that good stockboys had to be ‘broken in’ early: ibid 66–67, 133.

[185] Ibid 73–80.

[186] Ibid 87.

[187] See, eg, the practice of ‘cockfighting’: End of an Era, above n 90, 103. According to the authors ‘[any manifestation or even hint of rebellion was met with instant physical punishment’. They also describe local administrations of ‘justice’, such as severely beating three young men caught stealing cattle, and chaining them up at the homestead for several days, the result of ‘the belief that Aborigines were better disciplined by the sight and the experience of punishment meted out on the spot’. One European ‘always went armed when there were Aborigines near, which was most of the time’. The authors describe an incident in which, for a joke, he shot into ground at the feet of a blind Aboriginal man approaching the homestead: at 124.

[188] See, eg, End of an Era, above n 90, 115, 218.

[189] The authors make this comment of incidents they observed at Limbunya in which the manager’s wife made ‘a detour to leeward of a group of seated women, holding her nose and snorting with disgust’: ibid 91.

[190] Ibid 97.

[191] This was the regulation allowing pastoralists to avoid paying wages where they were able to prove ‘to the satisfaction of the Chief Protector’ that they were maintaining the employee’s relatives and dependants.

[192] See Regulation 2(2), Aboriginals (Pastoral Industry) Regulations 1949, Commonwealth Gazette (30 June 1949).

[193] Regulation 5(2), Aboriginals (Pastoral Industry) Regulations 1949, Commonwealth Gazette (30 June 1949).

[194] See Northern Territory Electoral Regulations, in force pursuant to the Northern Territory Representation Act 1922 (Cth), the Northern Territory (Administration) Act 1910 (Cth), and the Commonwealth Electoral Act 1918 (Cth). Amended electoral regulations came into force on 7 November 1957 allowing Aborigines to vote: Statutory Rules No 66, 1957 Electoral Regulations. In theory, non-Aboriginal children (being ineligible to vote) could have been declared wards. However, in practice this did not occur.

[195] However, s 24 provided that a ward could commence proceedings against the Director or against another ward. Section 24 was repealed in 1962: see Welfare Ordinance 1961 (Cth) s 12 (‘Welfare Ordinance’).

[196] Dick Ward, who opposed the introduction of the Welfare Ordinance in the Legislative Council, stated that the provision allowing a native’s property to be ‘sold or anything else done with it without the supervisions of the courts…seems to me to place the native in a lower category than the mental defective’: Dick Ward, NTLCD, 10 June 1957. See also, Wells, above n 99, 113.

[197] Without giving reasons, Giese refused permission for stockman Mick Daly to marry Gladys Namagu, a ward from Western Australia. It was not possible to appeal. The case received national press coverage, and questions were asked in Federal Parliament. Following the controversy an appeal provision (s 67(2)) was inserted. Eventually, a new s 22 of the Welfare Ordinance 1961 repealed by ss 61–70. From this date the Director’s consent was no longer required for a ward to marry a non-ward. See generally, Wells, above n 99, 192.

[198] Wells, above n 99, 128.

[199] See, eg, Northern Territory Government Gazette (16 September 1959) which contains a table of wages applicable to the employment of wards. Males in agricultural work were entitled to £2 weekly; females to £1; drovers with plant and stock to £10 weekly, with plant only to £5; miners on the surface to £2 weekly, underground miners to £6 weekly.

[200] C D Rowley, The Remote Aborigines: Aboriginal Policy and Practice (1971) 300.

[201] Letter from J C Archer, Administrator to the Secretary, Department of Territories,15 October 1955, in Employment of Aborigines in the Northern Territory, A452, 1955/668, AAC. This letter contains a table listing the numbers of Aborigines employed in various industries as at 30 June 1955, and the numbers said to be in receipt of wages in excess of the prescribed rate.

[202] Wells, above n 99, 144.

[203] Letter from E.J. Hook to Department of Territories,2 November 1965, in Engagement of Aborigines on Northern Territory Government settlements and missions, A432, 1965/3158, AAC.

[204] Ibid. By ‘trappings’, Hook meant in particular the description of the relationship, and the description of the remuneration paid. Cf criticism of the Community Development Employment Program (CDEP) established by the Fraser government in 1977.

[205] [2001] FCA 1213; (2001) 183 ALR 249 (‘Cubillo’).

[206] Cubillo [2001] FCA 1213; (2001) 183 ALR 249, 254.

[207] Hal Wootten, ‘Conflicting imperatives: pursuing truth in the courts’ in Iain McCalman and Ann McGrath (eds), Proof and Truth: the Humanist as Expert (2003) 17.

[208] Deborah Bird Rose, ‘Uses of historical evidence’, in Mandy Paul and Geoff Gray (eds), Through a Smoky Mirror: History and Native Title (1999) 35, 36.

[209] Jan Muir and Monica Morgan, ‘Yorta Yorta: the Community’s Perspective on treatment of oral history’, in Mandy Paul and Geoff Gray (eds), Through a Smoky Mirror: History and Native Title (1999) 1, 3.

[210] Wootten, above n 207, 33.

[211] Ibid 34.

[212] Ibid 35.

[213] Ibid 36.

[214] Ibid.

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