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Commentary
Sanushka Mudaliar[∗]
From the late 1800s to the 1970s, legislation passed by the Queensland State Government implemented a system of comprehensive state supervision over the lives and livelihoods of people of Aboriginal or Torres Strait Islander descent.[1] As part of this regime, the government took direct control of the wages paid to these people, placing their money in special accounts in the name of the worker. Not only were the thousands of people affected by this scheme denied access to their accounts,[2] a large portion of this money has also been misappropriated, channelled into general government funds or has simply disappeared. It is estimated that the total amount intercepted by the government amounts to over $500 million dollars.
In response to a public campaign demanding accountability for the stolen wages, in 2002 the Beattie Government created a $55.6 million dollar compensation scheme. This offers either $4000 or $2000 payouts as a settlement for any claims.[3] For many of the claimants this is an unacceptable offer as their loss represents the bulk of their lifetime earnings, and the inability to access money, which was rightfully theirs, has trapped many in a cycle of poverty. If further negotiations with the Government are unsuccessful, it is likely that this matter will be pursued in the courts. The most appropriate avenue for legal redress is to argue that the Queensland Government breached a fiduciary duty to the people whose wages it controlled.
The purpose of this paper is to assess the value of the compensation offer by considering the prospects for success of such litigation. Part I provides background information on the allegations about stolen wages and the specific issues involved with the system of wage controls. Part II then applies equitable principles from the law on fiduciary duties to these factual circumstances. It argues that the Government did owe a fiduciary duty to the account holders, and that the scope of this duty covered all dealings with the money in the accounts. It then outlines principles as to what constitutes a breach of fiduciary duty. Part III considers analogous findings from two recent cases concerning governmental control over money owed to disabled veterans in Canada, and to Indigenous peoples from certain parts of the United States. Part IV considers factors that may inhibit the litigation, including the possibility that proceedings would be stayed on the grounds of unreasonable delay, as well as difficulties regarding evidence, proof and the trial process. It concludes by arguing that stolen wages claimants should use their strong legal case as a tool to bargain for a fairer compensation scheme before launching legal proceedings. However, if this fails there is a sound basis for at least some claimants to proceed through the courts.
The broad claims described as ‘stolen wages’ comprise three separate issues:
1) Underpayment of Indigenous workers by the Government, by setting the rate of pay under the compulsory Indigenous employment contracts at substantially less than the award rate.[4]
2) Appropriation of pensions paid to Indigenous people, including aged care grants, maternity allowances and payments from the Commonwealth Child Endowment Fund. These pensions were used to pay for Government expenses.[5]
3) Payment of wages earned by Indigenous workers directly into government controlled ‘trust’ accounts that could only be accessed with the permission of the protector or district officer. It is estimated that there are approximately 20 000 people still alive who were affected by this scheme.
This paper will address the legal questions that arise from the keeping of wage accounts because this issue is the focus of the recent compensation offer. In the course of this discussion, it will outline principles that are relevant to legal actions that might be brought in relation to the first two claims.
The following section provides a broad overview of the legislation that implemented the system of enforced saving, and the ways in which this money was misused by the Queensland Government and its officers.
The Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) was the first piece of legislation to impose a regime of governmental control over Indigenous Queenslanders. Under this statute, protectors could engage individuals in 12 month working contracts. A person who refused to work under a contract negotiated on her/his behalf could be gaoled or banished to a mission or settlement for life.[6] Section 12(2) of an Amendment Act passed in 1901 introduced some provisions regarding the control and management of wages.[7] Under regulations passed in 1904, protectors could order that some wages be paid directly to them in order to meet the needs of the Aboriginal community generally. By 1905, it was compulsory for the wages of female employees to be paid directly into a trust account administered by the Home Department, and in 1914, all employers were directed to pay all wages earned by Indigenous peoples to the local protectors to be kept of their behalf. Workers then had to request permission in order to access their earnings.[8]
Section 12 of the Aboriginals Preservation and Protection Acts 1939–1946 (which replaced the 1897 Act) provides for the making of regulations ‘[p]roviding for the establishment of such trust funds as may be necessary for the control of the savings of aboriginals, estates of deceased and missing aboriginals and unclaimed moneys’.[9] Section 14 deals with employment. At 14(6), it states that a ‘protector may direct any employer to pay the whole or any portion of the wages of aboriginals to himself or some other person on his behalf’. Section 16 gives protectors an absolute right to manage the property of ‘all aboriginals in the district assigned to him’.[10]
The Aboriginal Affairs Act 1965 (Qld) continued this regime, but gave account holders the right to possess passbooks for the first time. However, these were ‘only for the information of the individual’ and did not bring with them any control over the accounts.[11] These Acts and Regulations will be collectively referred to in this paper as ‘the legislation’.
In addition to the basic injustice of appropriating the wages of Indigenous people, there are two specific issues regarding the management of the savings accounts by the Government that give rise to the current claim for compensation.[12]
These are that:
1) The Government failed to implement safeguards to prevent fraud by:(i) Giving power to employers to whom ‘pocket money’ for the workers was entrusted; and
(ii) Giving power to protectors who had control of the accounts from the inception of the scheme until 1933, when the accounts were centralised in Brisbane, and later were responsible for withdrawals from the accounts.
2) The Government itself misused the wages held in the centralised accounts.
Dr. Ros Kidd has put together a comprehensive account of this misappropriation based on government documents and internal reports stored in the archives of the Queensland Government.[13] This paper will provide a few representative examples that will be used in the subsequent discussion of the law on fiduciary duties.
The regulations authorised employers to distribute ‘pocket money’ to the workers for personal expenses to the value of about thirty percent of their wages. Dr. Kidd’s research revealed ‘countless’ letters from protectors warning that employers regularly kept large amounts of this money. There is also evidence that ‘[m]ost protectors never properly checked entries’ and that the ‘department knew the system was flawed’ and failed to put in place adequate controls.[14]
There is evidence that many protectors failed to ensure that withdrawals were genuinely made by the account-holder, and that in some areas the protectors fraudulently withdrew money for their own purposes. The Government introduced thumbprint identification in an effort to eliminate the widespread misuse of the money, but was aware that this system was being exploited.[15]
The Government also used the money for its own purposes. There is evidence that between 1925 and 1935, the Government appropriated large sums from the accounts to meet deficits in consolidated revenue, and a high probability that this occurred during other periods as well.[16] At various times, the money in the accounts was also used to cover general Government expenses. For example, the money was loaned to other departments to finance the building of public infrastructure such as the Radcliffe Hospital, which serviced only the white community.[17]
The interest earned and portions of the principle savings were also used to offset Government expenditure on Indigenous communities. For example:
Interest earned on the accounts was used to fund welfare payments, rations and blankets.[18] In other instances an amount equal to the interest was appropriated as an administrative charge.[19]
Money was also taken for ‘departmental purposes’. For instance, in 1922 a public service inquiry found that money in the accounts had been used to cover costs within the Aboriginal sub-department.[20]
Special taxes not payable by white workers were levied on the accounts purportedly for use to purchase rations, clothing, blankets and amenities. Much of this money was then placed in high-return fixed investments.[21]
Most significantly, the Government failed to use the money to alleviate the abject poverty on the Indigenous settlements and missions, and prevented workers from accessing the money to help themselves. At the same time as denying individual requests for money to meet personal expenses, ‘the Government routinely declared sums of ... Aboriginal savings to be “idle” or “surplus to needs”’.[22] For example, it refused to authorise the use of about $30,500 in earnings it held on behalf of workers resident in Mapoon in 1946 even though there was no clean water supply, regular drastic food shortages, and the 280 people in the settlement were living in 45 huts that had been officially condemned.[23]
Furthermore, and in spite of repeated criticism from official auditors, the Government did not implement an adequate system of accounting and record-keeping.[24] This failure, combined with the various misuses described above, meant that workers who survived until the 1970s and were given the right to access their accounts found that these contained almost nothing after a lifetime worth of work. Others found that no record existed of an account in their name.
This section applies the law on fiduciary duties to the facts about the wage accounts and argues that the Government did owe a fiduciary duty to the workers.
The equitable law on fiduciary duties protects special relationships of trust and confidence, and is designed to ensure that those who are under an obligation to act in the interests of others do so with integrity and honesty. Although fiduciary obligations are enforced through private law, they have a public function and social purpose.[25]
Before proceeding, it is useful to briefly consider other cases in which fiduciary law has been argued in relation to state treatment of Indigenous peoples.
First, in Guerin v The Queen,[26] the Canadian Supreme Court held that the Crown owed a fiduciary duty to the First Nations because it held the sole power to alienate native title, and this placed the Indians in a position of special vulnerability. This view has not been treated favourably by Australian courts, which have not accepted that the Crown can owe a broad fiduciary duty to particular groups of citizens. Although Toohey J cited Guerin with approval in Mabo v Queensland (No 2),[27] a majority in Wik Peoples v Queensland[28] found that the vulnerability that arose from the alienation of native title was not sufficient to create an independent fiduciary duty.[29] In declining to follow the Canadian position, the High Court held that ‘[i]t is necessary to identify some action or function the doing or performance of which attracts the supposed fiduciary duty to be observed’.[30]
Secondly, recent cases arguing that the Commonwealth government owed a fiduciary duty to the Stolen Generations have been unsuccessful. For example, in Cubillo v Commonwealth of Australia[31] this submission was rejected on the grounds that fiduciary law applies only to economic interests.[32]
As the following analysis shows, the particular factual circumstances surrounding the wage accounts overcome the reservations outlined here and constitute more traditional grounds for an action in fiduciary law.
A fiduciary action brought on behalf of the stolen wages claimants would have to prove that:
1) The legislative provisions created a fiduciary duty between the government or its representatives and the account holders;
2) The scope of this fiduciary relationship covered the actions of the Government and its officers in handling the accounts;
3) The Government breached its duty; and
4) No defence is available.
In order to establish that the Government was a fiduciary to the account holders, it must be shown that this relationship either falls into one of the categories that are automatically classified as fiduciary in nature, or that a fiduciary duty existed on the facts. It is not relevant that the fiduciary duty arose from a statute.[33] The Government’s liability for the acts of protectors and district officers is discussed below.
Only two of the relationships that are presumed to be fiduciary might apply to these facts. These are a trustee/beneficiary or guardian/ward relationship.
The responsibilities and liabilities of a trustee are stricter than for an ordinary fiduciary, so it is in the interests of stolen wages claimants to argue that the Government took the wages as a trustee. Express trusts are characterised by the ‘three certainties’. In order to prove that the legislation established a trust, it is therefore necessary to show that it:
1) Expresses an intention to create a trust;
2) Identifies as the subject matter of the trust presently existing legal or equitable property; and
3) Identifies an ‘object’ or legal person who is intended to benefit from the trust.[34]
4) In determining whether these factors are present, the court will consider the instrument setting up the relationship and the circumstances in which this occurred, as well as judicial policies and legal presumptions.[35]
(i) Intention
The first step is to prove that there was an objective intention to create an equitable obligation, binding on the Government, to deal with the wages for the benefit of the workers.[36] This is determined from the factual circumstances including relevant documents and oral statements.[37]
The following factors suggest that the Government intended to act as trustee for the workers:
a) The accounts were repeatedly described as being held ‘in trust’ and ‘for the benefit of the Natives’.[38] The use of the word ‘trust’ is not a conclusive indication that a trust was actually created, although it will be taken into account.[39]
b) The money was described as being held ‘on behalf of’ the account holders. The directors, protectors and superintendents are described as having the power to draw from the accounts ‘such funds or sums as are required by the said Aboriginal or are necessary for payment of his just debts’.[40]
c) The subtitle to the original 1897 Act was An Act to make Provision for the Better Protection and Care of the Aboriginal and Half-Caste Inhabitants of the Colony. This connotes that the wages were taken out of concern for the interests of the workers.
d) The wages were placed in individual accounts in the name of each worker. In Henry v Hammond,[41] Channell J stated, ‘[i]t is clear that if the terms upon which the person receives the money are that he is bound to keep it separate ... and to handle that money so kept as a separate fund to the person entitled to it, then he is a trustee of that money’.[42]
e) The legislation gave the protectors and district officers title to the wages and the capacity to sue in their own names in respect of the property.[43] This is a hallmark of a trust relationship.[44]
However, there is also evidence that this was not the Government’s intention. A number of cases dealing with bank accounts nominally held ‘on trust’ for others have found that the way in which the money in the accounts is dealt with and described will be relevant to whether a trust actually existed.[45] The Government consistently dealt with the money in the accounts as one pool of money and used it for purposes that were not related to individual account holders. This may suggest that the workers were not considered to be the beneficial owners of the money and that no trusts were created.
(ii) Subject
The property is clearly identified as the entire wages of individual workers.[46]
(iii) Object
The relationship would be classified as a fixed trust. The relevant test for certainty of object is ‘list certainty’, or the capacity to readily identify all the beneficiaries.[47] This requirement is satisfied by the keeping of individual accounts, and by the provisions in the legislation setting out who was subject to it.[48]
The power to control wages was set up via legislation and regulations, so the formalities for the creation of a trust concerning personal property have been complied with.[49]
If the question of intention is resolved in favour of the stolen wages claimants then the courts will most likely find that the Government was trustee of the wage accounts. This means that in addition to breaching its fiduciary duty, the Government’s actions breached the following specific duties of a trustee:
There is no need to prove that the Government acted fraudulently, it is sufficient that the actions in question did not reach the standard of care that an ordinary reasonable person would exercise.[54]
If the argument based on a trust relationship fails, then the next consideration is whether the Government was a fiduciary in its capacity as guardian.[55] The definition of a guardian is ‘a person having the right and duty of protecting persons, property or rights of one who is without full legal capacity or otherwise incapable of managing his own affairs.’[56]
Although the legislation does not expressly use the terms guardian and ward (except in relation to minors), it is arguable that the scope and extent of the controls put in place had this effect.[57] Significantly, the second reading speech for Aboriginals Protection and Restriction of the Sale of Opium Bill contained the comment that ‘[i]n order to give them [Indigenous people] the protection they ought to have it is necessary to treat them very much as if they were children’.[58]
However, this argument may prove to be problematic as a recent decision based on the Aborigines Protection Act 1909 (Cth) distinguished control of state wards from a guardianship duty.[59]
If neither the argument based on a trust relationship nor a guardian/ward relationship succeeds, there is still a strong basis to argue that a fiduciary relationship existed on the facts. This requires proof that:
1) In taking their wages, the Government undertook or agreed to act ‘on behalf of or in the interests of’ the workers;
2) The exercise of power over their wages would affect the workers interests in a ‘legal or practical sense’; and
3) As a result, the Government had ‘a special opportunity to exercise the power or discretion to the detriment of’ the workers, and that the workers were vulnerable to an abuse of the power held by the Government.[60]
Documents from the period provide evidence of the requisite undertaking. When introducing the Aboriginals Protection and Restriction of the Sale of Opium Bill 1897 (Qld), the Home Secretary described it as the ‘necessary machinery’ for the Government to give effect to its ‘duty’ to Indigenous peoples, and an expression of a willingness to perform that duty.[61] The subtitle to this Act supports this view. The 1939 Act was described as directing ‘that race along the right lines with the object of preserving it’.[62]
A fiduciary duty can be ‘officiously assumed without request’,[63] so is not relevant to the undertaking requirement that there was no agreement between the Government and the workers, or that the undertaking was not given directly to them.[64] There is enough evidence to argue that by adopting the powers within the legislation, the Government took on the role of a fiduciary duty by self-appointment.[65]
This is probably sufficient to establish an undertaking, but even if it is not equity can find that ‘certain people ought to have had regard for the interests of another, whether or not they had undertaken to do so’, and impose a fiduciary obligation based on public policy considerations.[66]
It is clear that control over access to wages affected the interests of the account holders.
Vulnerability in fiduciary law encompasses weakness or inability, as well as inequitable power in professional relationships.[67] As the facts outlined above indicate, the inability to access money in the accounts certainly placed the workers in a position of extreme vulnerability.
As with the undertaking requirement, factors such as vulnerability, trust and confidence are indicia of a fiduciary relationship, but are not strictly required to prove that one exists. Rather, these are important to the determination of whether the ‘actual circumstances of the relationship are such that one party is entitled to expect that the other will act in his interests in and for the purposes of the relationship’.[68] As such, it is not necessary to show that the people to whom the Acts applied subjectively placed trust and confidence in the government (as indeed it would be difficult to do).[69]
Whether as the result of the creation of trusts, a guardian/ward duty or a fact-based fiduciary relationship, this discussion has shown that Government clearly owed a fiduciary duty to the account holders.
Whether an act by a fiduciary constitutes a breach of duty depends on the scope and subject-matter of the fiduciary relationship. This is determined by the nature of the relationship, the breadth of the undertaking and the activity it relates to, and relevant facts.[70] A fiduciary is not liable where the instrument creating the duty authorises the act in question.[71]
Based on the available facts, it is possible to make a convincing argument that the scope of the Government’s duty extends to all dealings with the money in the accounts and includes a duty to keep proper records.[72] The Queensland Government has argued that the Government is not responsible for the fraudulent acts of the local employers, protectors or district officers.[73] However, the Government could be held responsible either because these individuals were acting as officers of the Government, or because it is recognised that where a fiduciary duty involves large numbers of transactions, a fiduciary can ‘act by other hands’.[74] Fraud by these individuals was also a direct result of a failure to fulfil fiduciary duties.
Even where local officers acted beyond the authority given to them by the legislation, it is the ‘course of dealing actually pursued’ rather than the terms of an agreement that set out the subject matter of the obligation.[75] It has also been suggested that the scope of the fiduciary duty expands to reflect the extent of independent authority given to the fiduciary.[76] This means that even though the legislation was vague about the terms on which the money was to be kept, it was clearly within the scope of the Government’s duty to ensure it was used in the direct interest of the beneficiaries.
The rules governing breach of fiduciary duties are:
1) The Profit Rule: A fiduciary must not acquire a gain or benefit as a result of her/his position.
2) The Conflict Rule: A fiduciary must not act in such a way that her/his personal interest comes into conflict with her/his obligations.[77] Paul Finn defines the ‘interest’ component of the conflict rule as ‘an actual, prospective or possible profit to be made in, or as a result of, the decision he takes or the transaction he effects. Or it may take the form of an actual, prospective or possible saving, or a diminution or a personal liability’.[78]
The purpose of these rules is to ensure that the fiduciary acts at all times in the interests of the beneficiary. Liability is strict, making it irrelevant whether or not the fiduciary acted in good faith.[79]
It is not within the scope of this paper to create a comprehensive list of violations, however the basic historical information provided above broadly indicates that there is ample evidence that the Government breached both of these rules. The data compiled by Rosalind Kidd provides many more specific examples.
If a breach is proven, then the remedy awarded will depend on the particular facts surrounding the breach.[80] The most likely remedy is an order for equitable compensation.[81] The amount of time that has passed, the various places to which the money in the accounts was diverted, and the difficulties of reconstructing exactly how much money was involved would probably make an order for account of profits or the declaration of a constructive trust too difficult to enforce.[82]
Equitable compensation is a flexible remedy, designed to ‘compensate the plaintiff by putting him in as good a position pecuniarily as that in which he was before the injury’.[83] The amount of compensation would be determined strictly according to the evidence at hand, and so could differ substantially between different claimants. This issue will be discussed below. Courts can also take a wide range of discretionary factors into account in determining the level of compensation.[84] This might provide an avenue for the Government to argue for a reduced amount of compensation based on current fiscal constraints or the changes in attitude since the time the legislation was in force.
Two recent cases from North America demonstrate that courts have been willing to enforce fiduciary duties that arise from Government control over personal funds. These cases are useful precedents for stolen wages litigants.
In 1999 a class-action suit was brought against the Government of Canada based on alleged breach of fiduciary duty in the management of the pensions of mentally ill war veterans. From World War I, the Department of Veterans Affairs assumed control of between 25,000 and 35,000 pensions payable to veterans who had no relative, friend or public trustee to manage it on their behalf. The Department also managed personal funds for some veterans. The Government began to pay interest on the accounts for the first time in 1990, and it amended the Department of Veterans Affairs Act to bar any legal action to recover interest owed pre-1990.
The Authorson judgment made a number of general findings that have clear parallels to the stolen wages case. First, the Ontario Supreme Court ruled that the failure to pay interest constituted a breach of fiduciary duty. In his judgement, Justice Brockenshire stated, ‘[t]he Crown voluntarily accepted responsibility for managing the funds of the veterans, then overlooked or ignored one of the most basic obligations against the interests of those it was supposed to help’.[85]
Second, the court also rejected the Government’s attempt to limit its liability to living veterans and held that the dependants of veterans, or their estates, had a continuing cause of action.[86]
Finally, Brockenshire J also held that internal government reports and documents criticising the way that the Department was handling the accounts constituted evidence that the Department was conscious of its responsibility and its failure to meet its obligations. Although on appeal the Supreme Court of Canada found that the legislation barring actions for pre-1990 interest was valid, by that stage the Government had accepted both that it had a fiduciary duty and that this duty had been breached.[87]
In 1996 Elouise Cobell and four others began a test case on behalf of 300 000 people alleging that the US Federal Government had breached its duties as a trustee for accounts held on behalf of certain Native American Indians. In the early 1900s, the US Government divided up tribal lands and allocated individuals with personal allotments. The Government became trustee of the legal title. Income from the tracts, mainly from the sale or lease of natural resources, was placed in personal trust accounts. The action alleged that the US Government failed to keep adequate records or implement an accounting system; failed to account for the money to the trust beneficiaries; and lost, dissipated or converted money for its own uses.[88]
In 1999 Judge Lamberth of the US District Court in Washington DC held that the Government had breached its trust obligations to the account holders and ordered the Government to overhaul its accounting practices and to produce an historical account of the trust funds. This was upheld on appeal in 2001. A date for a trial dealing with the remedies for breach of trust has not yet been set.[89]
There are clear similarities between this case and the stolen wages issue. The fact that the court was willing to impose the heavy burden of historical accounting on the US Government is an important precedent. The judgment on breach of trust will also be very significant.
The failure of the Government to keep proper records and the length of time since the cause of action arose has important implications for litigation brought by stolen wages claimants.
It is unlikely that the Government will be able to raise laches as a defence because the stolen wages claimants did not know the facts of their legal claim until the results of Dr Kidd’s unprecedented access to Government records was published in the mid-1990s.[90] However, the Government will probably argue that the loss of records, the death of key witnesses and the passage of time make the case unfairly prejudicial.[91] It might also draw on a principle associated with laches that a limitation period can be applied if there is a legal right analogous to the equitable right at issue.[92]
A more practical constraint is that although there is ample evidence that the Government breached its duties in regards to the wage accounts, in order to benefit from a remedy each individual will have to prove that there was an account in their name for a certain period.
Most claimants have no personal documentation and so will have to rely on Government records or any extant records kept by employers. The Government has admitted that its files are incomplete and has stated that its record-keeping methods will make it very difficult to construct information about individual accounts.[93] The documentary proof required to access the compensation scheme is less rigorous than that required by litigation, and to date up to twenty percent of the relatively small group of people who applied under the scheme have been rejected.[94] Availability of and access to evidence is therefore a serious problem.
This paper has established that there is a strong legal basis for arguing that the Queensland Government breached a fiduciary duty to the Aboriginal and Torres Strait Islander people who were subjected to the system of wage controls. Having set out relevant background information in Part I, Part II argued that the Government owed a fiduciary duty to the workers and that the scope of this duty encompassed all dealings with the accounts by the Government and Government officers. By referring back to Part I it also indicated that the Government breached both the conflict and the profit rules, and that this failure to act in the best interests of the workers would most likely lead to an order for equitable compensation. The Authorson and Cobell cases mentioned in Part III indicate how this litigation might proceed at trial.
The considerations outlined in Part IV suggest that the conclusion that fiduciary duties have been breached does not necessarily mean that litigation is the best option for stolen wages litigants. The Beattie Government made its compensation offer in November 2002 after a token consultation period and without a genuine attempt to ascertain what is reasonable in the circumstances.[95] It has barred claims by relatives and warned that it may not be able to produce personal records in time for claimants to consider their position before the offer expires.[96] At least at the outset, the legal arguments outlined in this paper could be used as a bargaining tool to argue for a fairer compensation scheme. The only stolen wages case to be litigated to date was settled before trial by the Government,[97] so the threat of legal action is potentially quite powerful.
Recent history suggests that the Australian governments are far from responsive to calls for compensation for the mistreatment of Indigenous people, so it is certainly possible that an attempt to bargain would be unsuccessful. If this occurs, then is it useful to know that at least a portion of stolen wages claimants still have solid grounds on which to pursue legal recourse.
[∗] Board member of the Human Rights Council of Australia; email: sanushka@email.com. The author would like to acknowledge Rosalind Kidd and Chris Cunneen for providing materials and suggestions; Eloise Scotford for her advice on the principles of equity; Lachlan Harris for providing background information; and Dameeli Coates, for her guidance.
[1] Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld); Aboriginals Preservation and Protection Acts 1939 (Qld); Aborigines and Torres Strait Islander Affairs Act 1965 (Qld).
[2] After 1971, individuals were given the right to control their own wages and savings but this could be denied by court order. See T Fitzgerald, Cape York Justice Study (2001) Department of Premier and Cabinet, Queensland, 3.
[3] Peter Beattie, Queensland Government, Department of Premier and Trade, ‘Historic Reparations Offer to Indigenous Queenslanders to Proceed’ (Press Release, 20 November 2002).
[4] Fitzgerald, above n 2, 16; Rosalind Kidd, Black Lives, Government Lies (2000); ANTaR Queensland, Stolen Wages Factsheet, available online at <http:// www.antar.dovenetq.net.au/action/stolenwages.pdf> at 12 May 2004.
[5] Fitzgerald, above n 2, 16.
[6] Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) ss 12–13, 15.
[7] Aboriginals Protection and Restriction of the Sale of Opium Amendment Act 1901 (Qld).
[8] Kidd, above n 4, 36–37.
[9] Aboriginals Preservation and Protection Acts 1939 (Qld) s 12(10).
[10] Ibid s 16(1).
[11] Rosalind Kidd, ‘Breach of Trust?’ (unpublished paper on file with author) (2001) 3.1.24.
[12] See Kidd, above n 4; ANTar Queensland, above n 4.
[13] Kidd, above n 4; Kidd, above n 11. See also Fitzgerald, above n 2, 15.
[14] Kidd, above n 4, 37; Kidd, above n 11, s 3.
[15] Kidd, above n 11, 3.1.20.
[16] Kidd, above n 11, 3.2.1.
[17] Stephen Austin, Interview with Rosalind Kidd (ABC Radio Brisbane, 18 November 2002).
[18] Rosalind Kidd, The Way We Civilise (1997) 73.
[19] Kidd, above n 4, 40.
[20] Kidd, above n 18, 85.
[21] Kidd, above n 4, 38–41.
[22] Fitzgerald, above n 2, 16; see also Kidd, above n 4, 41.
[23] Fitzgerald, above n 2, 7.
[24] Kidd, above n 11, 3.5.50ff.
[25] Lord Wedderburn quoted in P Parkinson P (ed), The Principles of Equity (2nd ed, 2003) 339.
[26] [1984] 2 SCR 355 at 376, ‘Guerin’.
[27] [1992] HCA 23; (1992) 175 CLR 1.
[28] (1996) 187 CLR 1 (‘Wik’).
[29] See M Evans, Equity and Trusts (3rd ed, 2003) 5.48.
[30] Wik (1996) 187 CLR 1, 83–4.
[31] [2001] FCA 1213. See also Williams No 2 (2000) Aust Torts Reports 81, 312; Chris Cunneen and J Grix, The Limitations of Litigation in Stolen Generations Cases (2003) 28.
[32] Cubillo v Commonwealth of Australia [2001] FCA 1213, 1666.
[34] Re Williams [1897] 2 Ch 12 (Lindley LJ); Parkinson, above n 25, 307; J D Heydon and P L Loughlan, Cases and Materials on Equity and Trusts (5th ed, 1997) 24.2.1.
[35] P Finn, Fiduciary Obligations (1977) 216; see also Walker v Corboy (1990) 19 NSWLR 382.
[36] Based on the definition of a trust by Pettit quoted in Heydon and Loughlan, above n 34, 22.3.1.
[37] R P Meagher and W M Gummow, Jacobs’ Law of Trusts in Australia (6th ed, 1997) 501.
[38] Kidd, above n 11, 2.5–2.6.
[39] Commissioner of Stamp Duties (Queensland) v Jolliffe [1920] HCA 45; (1920) 28 CLR 178 (Knox CJ and Duffy J); Re Williams [1897] 2 Ch 12.
[40] Kidd, above n 11, 2.10.
[42] Ibid 521.
[43] See Aboriginals Preservation and Protection Acts 1939 (Qld), s 16(1)(a); Aborigines and Torres Strait Islander Affairs Act 1965 (Qld) s 28(1)(b).
[44] A Scott and W Fratcher, The Law of Trusts (4th ed, 1991).
[45] Kauter v Hilton [1953] HCA 95; (1953) 90 CLR 86; Paul v Constance [1977] 1 All ER 195.
[46] For a discussion on certainty of subject, see Re Golay’s Wills Trusts [1965] 2 All ER 660.
[47] See IRC v Broadway Cottages Trust [1955] Ch 20, which sets out this test.
[48] Re Gulbenkian’s Settlement Trusts [1970] AC 508.
[49] Scott and Fratcher, above n 44, 704.
[50] Cowan v Scargill [1985] 1 Ch 270, 288.
[51] Re Whitehouse [1982] Qd R 196; Strauss v Wykes [1916] VicLawRp 28; [1916] VLR 200.
[52] Re Whitehouse [1958] VLR 143.
[53] See Williams v Scott [1900] AC 499.
[54] P Radan, C Stewart and A Lynch, Equity and Trusts (2001) 24.1.1.
[55] Clay v Clay [2001] HCA 9. A statutory guardian/ward relationship is also fiduciary in character: see Bennett v Minister for Community Welfare [1992] HCA 27; (1992) 176 CLR 408.
[56] L Rutherford and S Bone, Osborn’s Concise Law Dictionary (8th ed, 1993) 160.
[57] Fitzgerald, above n 2, 2.
[58] Hansard, 7 December 1897, 1887 quoted in Fitzgerald, above n 2, 4.
[59] Williams v Minister, Aboriginal Land Rights Acct 1983 No 2 [1999] NSWSC 842 (26 August 1999); see Cunneen and Grix, above n 31, 28.
[60] These are the hallmarks of a fiduciary relationship: see Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984) 156 CLR 41, 96–7 (Mason J).
[61] Kidd, above n 11, 3.
[62] Hansard, 20 September 1939, 484 quoted in Fitzgerald, above n 2, 4.
[63] Finn, above n 35, 467.
[64] Parkinson, above n 25, 1032.
[65] See Boardman v Phipps [1966] UKHL 2; [1967] 2 AC 46; Walden Properties Ltd v Beaver Properties Ltd [1973] 2 NSWLR 815; English v Dedham Vale Properties Ltd [1978] 1 All ER 382.
[66] Parkinson, above n 25, 1035.
[67] Parkinson, above n 25, 1034.
[68] Finn quoted in News Ltd v Australian Rugby League [1996] 870 FCA 1.
[69] Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984) 156 CLR 41.
[70] Noranda Australia Ltd v Lachlan Resources NL (1988) 14 NSWLR 1, 15; Parkinson, above n 25, 1014–5; Birtchnell v Equity Trustees, Executors and Agency Co Ltd [1929] HCA 24; (1929) 42 CLR 384, 408.
[71] Chan v Zacharia [1984] HCA 36; (1984) 154 CLR 178 (Deane J).
[72] The latter duty is specifically codified in the Acts. See, eg, Aboriginals Protection and Restriction of the Sale of Opium Amendment Act 1901 (Qld) s 13.
[73] Stephen Austin, Interview with Judy Spence (ABC Radio Brisbane, 18 November 2002).
[74] Finn, above n 35, 40.
[75] Birtchnell v Equity Trustees, Executors and Agency Co Ltd [1929] HCA 24; (1929) 42 CLR 384, 408.
[76] Austin Scott quoted in Parkinson, above n 25, 1015.
[77] Chan v Zacharia [1984] HCA 36; (1984) 154 CLR 178, 198; see generally Parkinson, above n 25, 1013.
[78] Finn, above n 35, 204
[79] Chan v Zacharia quoted in Heydon and Loughlan, above n 34, 11.1.3C.
[80] Evans, above n 29, 5.58.
[81] See Nocton v Lord Ashburn [1914] AC 932.
[82] For a discussion of these remedies, see Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134; Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984) 156 CLR 41; Evans, above n 29, 5.58.
[83] Nocton v Lord Ashburn [1914] AC 932, 952; Hill v Rose [1990] VicRp 13; [1990] VR 129, 144.
[84] Radan, above n 54, 10.2.22–10.2.24.
[85] Quoted in O Wood, ‘The Authorson Case’, CBC News Online, 17 July 2003, available online at <http://www.cbc.ca/news/background/veterans/authorson_case.html> 12 May 2004.
[86] Upheld in the Ontario Court of Appeal in Authorson (Litigation Guardian) v. Canada (Attorney General) (2002), 157 O.A.C. 278, 58 O.R. (3d) 417, 215 D.L.R. (4th) 496, 92 C.R.R. (2d) 224, 33 C.C.P.B. 1, [2002] O.J. No. 962 (QL).
[87] Authorson v. Canada (Attorney General), 2003 SCC 39, 2–3 (Major J) (‘Authorson’). Available online at <http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2003scc039.wpd.html> at 12 May 2004.
[88] Statement of Claim submitted to the US District Court for the District of Columbia by Elouise Pepion Cobell and Others, 10 June 1996.
[89] Indian Trust, ‘COBELL v. NORTON: An Overview’, available online at <http://www.indiantrust.com/index.cfm?FuseAction=Overview.Home> at 12 May 2004.
[90] Laches defeats an equitable cause of action if a party lets an unreasonable amount of time pass before pursuing their rights. See Rutherford, above n 56, 192; G E Dal Pont and D R C Chalmers, Equity and Trusts in Australia and New Zealand (2nd ed, 2000) 118.
[91] As it has in the Stolen Generations litigation: see Cunneen and Grix, above n 31, 46–7. The factors that allowed Johnson v DOCS [1999] NSWSC 1156 (unreported, 2 December 1999) to overcome a time bar could be argued here, but Johnson is distinguishable on the facts. Further, the reasoning of Kirby J in Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 was not adopted in Cubillo v Commonwealth (No 1) [1999] FCA 518; (1999) 89 FCR 528. See Cunneen and Grix, above n 31, at 47–9.
[92] Rutherford, above n 56, 192. Thus, in Cubillo v Commonwealth (No 1) [1999] FCA 518; (1999) 89 FCR 528 the finding that the tort claim was time barred because of the gross unfairness and great prejudice the action would cause to the defendant was applied to the claim based on fiduciary duties. See also Cunneen and Grix, above n 31, 46.
[93] Austin, above n 73.
[94] For the documentary requirements of the compensation offer, see Peter Beattie, Queensland Government, Department of Premier and Trade, ‘Historic Reparations Offer to Indigenous Queenslanders to Proceed’ (Press Release, 20 November 2002).
[95] Austin, above n 17.
[96] Peter Beattie, Queensland Government, Department of Premier and Trade, ‘Historic Reparations Offer to Indigenous Queenslanders to Proceed’ (Press Release, 20 November 2002).
[97] Stephen Austin, Interview with Scott McDougall, Director, Caxton Legal Centre (ABC Radio Brisbane, 18 November 2002).
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