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Gilligan, Brian; Janke, Terri; Jeffries, Sam --- "Report of the Aboriginal Trust Fund Repayment Scheme Panel - Digest" [2005] AUIndigLawRpr 31; (2005) 9(2) Australian Indigenous Law Reporter 79

Inquiries and Reports - Australia

Report of the Aboriginal Trust Fund Repayment Scheme Panel

Brian Gilligan, Terri Janke, Sam Jeffries

Report to the NSW Government

October 2004

Introduction

Between 1900 and 1969, money was deducted from apprentice wages, pensions, family endowments, inheritances and lump sum compensation payments made to Aboriginal people. Other kinds of deductions may also have been made. Sometimes this happened without peoples’ consent or knowledge.

This money was placed in Trust Funds operated by the Aborigines' Protection Board and later the Aborigines Welfare Board. Many Aboriginal people never received their money from the Trust Funds and no payments have been made since 1969.

In March 2004, the NSW Government agreed to identify and reimburse Aboriginal people who are owed money from NSW Trust Funds. This Report has been compiled by an independent panel, who were asked to develop the repayment scheme in consultation with the Aboriginal community.

Following the release of this Report in October 2004, the NSW Government established an Aboriginal Trust Fund Repayment (‘ATFR’) Scheme in December 2004. The scheme is now administered by a new panel, which will be headed by former Senator Aden Ridgeway, Robynne Quiggin, and Sam Jeffries.

1.2 Executive Summary – A Proposed Framework for the NSW Aboriginal Trust Fund Repayment Scheme

The Panel recommends that:

A repayment scheme be established, re-named the NSW Aboriginal Trust Fund Repayment Scheme (instead of a ‘Reparation’ Scheme).

The Scheme should:

• repay wages or other money paid into the Aboriginal Trust Funds and never repaid during the period 1900 to 1968;
• be evidence based; and
• be a five year Scheme, with a review and report back to Government on its operation after three years.

Claimants should be people who believe they are owned money, or the descendants of people who had money in the Aboriginal Trust Fund that was not repaid. A streamlined and culturally appropriate process should be introduced by administrative direction to repay monies owed to descendants of deceased claimants.

[Establishment of Panel]

A new three person Aboriginal Trust Fund Repayment (‘ATFR’) Scheme Panel should be established, comprised entirely of Aboriginal people highly respected within Aboriginal communities, or at a minimum, Aboriginal representation should comprise a majority on the Panel, including the Chair.

Claimants should be able to request the Panel to review decisions and they should have subsequent access to normal legal avenues of appeal.

[Administration of the Scheme]

The ATFR Scheme’s credibility and effectiveness would be maximised if it was administratively linked to the NSW Premier’s Department, with the Department of Aboriginal Affairs (‘DAA’) and State Records having identified ATFR archivist positions to undertake record searches. Staffing should be Aboriginal to the maximum extent possible, and culturally appropriate selection criteria should be developed for non-indigenous staff.

The Scheme should focus on transparent processes and consultations to minimise the possibility of trauma to claimants and to avoid adversarial litigation if possible. The Scheme should have four phases:

• Registration;
• Search of Records;
• Determination; and
• Counselling.

Practical help in putting together claims, and providing support and assistance in any dispute resolution phase after provisional determination of claims, should be provided through limited term services purchased from appropriate non-government organisations, through an expression of interest process.

Registration

• People should submit a simple claim form developed by the ATFR Unit, which would be a statutory declaration and phrased in such a way as to give appropriate approvals to allow record searches to be undertaken.

• Once a claim is received it should be registered and given a priority rating, ie, living account holders and/or families demonstrating extreme hardship should receive priority.

Search of Records

Details of all claims should be sent to DAA and State Records, where designated staff should search all available historical records and return the claim documentation along with all documents found in the records/archives to the ATFR Scheme Unit.

Determination

The determination of claims should be largely an administrative process undertaken by the ATFR Scheme Unit. If there is undisputed evidence that monies are owed, and the amount to be paid is agreed by the claimant, the Panel should delegate authority to the Director of the ATFR Scheme Unit to pay such claims without the need for them to be referred to the Panel.

Unit staff should review the documentation received from DAA and State Records, make the determination and inform the claimant of the claim’s success or otherwise. Wherever possible this should be done face to face by staff trained in mediation and dispute resolution.

If the claimant does not agree with the outcome of the search and the determination the claim should be referred to the Panel for review and decision.

Counselling

The Scheme should provide some funding to a non-government organisation (such as Link-Up) to provide counselling to claimants, acknowledging that the process may bring up unpleasant memories or information.

[Claimant Costs]

To remove any financial burden on individual claimants undertaking record searches, the Scheme should meet costs associated with record searches of claims (internal to government). The outcome of the investigation of records should be made available to claimants. The right of all claimants to undertake their own search of records should be acknowledged.

The cost of any fees associated with the distribution of monies owed to the estate of a deceased claimant should be met by the Scheme.

The Government has approached the Australian Tax Office to seek a determination that any monies repaid be tax free; if this is unsuccessful the Scheme should meet any taxation costs for successful claimants.

[Future Action]

Successful applicants should not be required to release the Government from future legal action, only acknowledge that a sum of money has been paid to them on account of their claim.

[Principles for Decision-Making]

Decisions should be made using the following principles:

• The search of the records and other evidence must establish that there is either certainty, strong evidence or strong circumstantial evidence that money was paid into the Aboriginal Trust Funds and there is either no evidence or weak circumstantial evidence that money was paid to, and received by, the account holder.

• Other evidence including oral evidence should be accepted, to allow for consideration of all aspects of a claimant’s case, for example, a mixture of oral evidence, oral evidence of others who can substantiate facts, and other independent written records.

[The Role of the Panel]

The role of the Panel is a key element of the proposed Scheme. All claims should be referred to the Panel, although it is envisaged that the Panel should delegate authority to the ATFR Scheme Unit to process payment in cases where it is clear that monies need to be repaid, to ensure a speedy and efficient process. If claimants do not agree with the determination they should be able to ask for their claim to be reviewed by the Panel. Judging the facts in each case (including oral evidence) does not lend itself readily to absolute rules, but should rely on the Panel’s exercise of discretion to judge each claim on all the available evidence. It is expected that where it is unclear that payments have been made to, and received by the account holder, the Panel should use its discretion to give the benefit of the doubt to the claimant and approve the repayment of the Trust Fund monies.

[Resources]

Resources required may include:

• Funds to cover wages, endowment or other money paid into the Aboriginal Trust Funds and never repaid during the period 1900 to 1968 – up to $15m in the first three years of the five year scheme.

• An ATFR Scheme Unit with four staff (Director, one Project Officer, one Community Liaison Officer and administrative support). Staffing of the Unit should be Aboriginal to the maximum extent possible, and culturally appropriate selection criteria should be developed for non-Indigenous staff.

• Two identified ATFR Scheme archivists, one at DAA and the other at State Records to search records for 5 years. State Records also needs an archivist position to deal with the expected influx of requests from people wishing to research their families’ records, and an additional four staff for 2 years located in DAA may be required to finalise indexing of records.

• Funds to meet all record search costs and fees associated with the distribution of monies owed to the estate of a deceased claimant, also possibly funding to ensure monies returned are tax-free. While recipients will be responsible for tax on any interest and other income generated in the future from the monies repaid, any past tax liability should be met by government in recognition of the opportunity costs of the outstanding debt, and the fact that successive Governments must bear responsibility for people not having had the opportunity to manage their own affairs and tax liability.

• Funds to be allocated to non-government organisations to provide counselling and practical support to claimants, as well as some funding to provide specialised mediation assistance in complex cases.

• Funding for sitting fees, travel and other administrative costs associated with the operations of the new ATFR Scheme Panel.

...

The full text of the report is available online via the Aboriginal Trust Fund Repayment Scheme Website at <http://www.atfrs.nsw.gov.au/publications.htm> .

For further details on the NSW Stolen Wages issue, see <http://www.antar.org.au/sw_nsw.html> .