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Brennan, Sean; Craven, Zoe --- "Government Management of Aboriginal Trust Money in New South Wales - Digest" [2006] AUIndigLawRpr 83; (2006) 10(4) Australian Indigenous Law Reporter 90

Government Management of Aboriginal Trust Money in New South Wales: ‘Eventually they get it all…’

Sean Brennan and Zoe Craven

Indigenous Law Centre Research Report

September 2006

Background

For much of the 20th Century the NSW Government took money belonging to Aboriginal people and placed it in trust accounts for which it was legally responsible. It then resisted people who sought to have their own money returned to them, knowing that official records were poor and that significant amounts had gone astray within the bureaucracy.

Legislation in NSW gave State officials the capacity to control wages earned by children who were forced to work as ‘apprentices’, as well as control over some early welfare payments made to Aboriginal adults. As the 20th Century advanced, Commonwealth laws gave the same officials power over a broader range of social security entitlements, such as child endowment and maternity allowances. This was part of a wider set of controls that could be, and often were, exercised over Aboriginal people’s movement, labour and land. These controls were mainly exercised through the Aborigines Protection Board (later the Aborigines Welfare Board). Most Aboriginal people lived their lives independently of the Board, but many were caught in its net. When that happened, these controls often had lasting consequences in terms of health and poverty.

This research report focuses on the laws that made government control of Aboriginal people’s money possible. In that sense, it tells only a small and technical part of the story. It is the voices of Aboriginal people – those who experienced these controls over their labour and money, those who resisted them and those who lived independently of the Board – that convey what these times were really like for those who lived through them.

A Long Campaign Finally Leads to Government Action

In February 2004 a story in the National Indigenous Times (NIT) revealed the existence of a draft Cabinet Minute from the NSW Department of Community Services (DoCS). The minute was called ‘Aboriginal Trust Funds Payback Scheme Proposal’ and was dated April 2001. Reportedly it urged the NSW Government to adopt a scheme for repaying wages and entitlements owing to Aboriginal people that had been placed in government trust accounts between 1900 and 1969.¹ It appears the draft minute was headed off within the bureaucracy before it reached Cabinet. The NIT story appeared in 2004, but the story of Aboriginal people in NSW and their experiences with the Board had begun decades earlier.

From the early 20th Century, apprentices had fought to have their money released from Board trust accounts, to spend it on things that other people were free to purchase at their own discretion. Community leaders had campaigned against Board maladministration on stations and reserves, and against workplace discrimination and abuse. After the Board was abolished in 1969, Aboriginal people had lobbied successive State governments for money held in government trust accounts to be returned to its rightful owners. Across the border in Queensland, through the 1990s and into the new century, the campaign against missing, unpaid and underpaid wages had increasingly gained statewide and national attention.

By the late 1990s, the Department of Community Services (DoCS) – in many respects the bureaucratic successor to the Board – had developed to an advanced stage a proposed repayment scheme. Other parts of the NSW Government, however, maintained a hardline stance, resisting calls for repayment. In the leaked draft Cabinet Minute from 2001, the DoCS Minister, Faye Lo Po, reportedly wrote that ‘[f]rom 1970 until now, the unwritten policy of DoCS and Treasury appears to have been to resist reimbursement of these funds’.²

A month after the NIT story, the NSW Premier himself moved to end the decades of official resistance to repayment. On 11 March 2004 in Parliament, Bob Carr acknowledged that Aboriginal people had been forced to pay money into trust accounts and that successive NSW governments had ‘failed that trust’.

On 5 May 2004, Premier Carr announced the formation of a panel to finalise design of a repayment scheme. The panel had two Indigenous members, and was chaired by the former Director-General of the National Parks and Wildlife Service.

In December 2004 the NSW Government released the panel’s report. It recommended the establishment of the NSW Aboriginal Trust Fund Repayment Scheme (ATFRS), administratively linked to the Premier’s Department, with dedicated support from archivists to assist with record searches. It also called for a new three-person ATFRS Panel to be formed, comprised entirely of respected Aboriginal people or at least with an Aboriginal majority and chair. The report said that the scheme should:

• use a streamlined and culturally appropriate process to repay money that went into trust funds between 1900 and 1968 and was never repaid
• operate for five years, with a review after three years
• treat the descendants of deceased claimants as eligible for repayment, as well as direct claimants themselves
• authorise the Panel to review determinations by the ATFRS Unit, when requested by claimants, and preserve normal legal avenues of appeal
• emphasise practical assistance to claimants, including support, free record searching and counselling services
• not require indemnities from claimants regarding any further government liability
• require either certainty, strong evidence or strong circumstantial evidence that money was paid into government trust accounts, in a situation of no evidence or weak circumstantial evidence that money was repaid, with the benefit of the doubt favouring the claimant
• include scope for oral evidence.³

Introduction

Controls over the wages and entitlements of many Aboriginal people in NSW were largely exercised through a government-appointed authority, the Aborigines Protection Board (re-named in 1940 the Aborigines Welfare Board). In 1883, the NSW Government established the Aborigines Protection Board (referred to here as the APB, later the AWB, or generically as the Board). Its powers were secured and extended with the Aborigines Protection Act 1909 (NSW). The Board was given a number of statutory duties by the 1909 Act, including to ‘exercise a general supervision and care over all matters affecting the interests and welfare of aborigines’, to manage and regulate reserves and Stations upon which Aboriginal people resided and to provide for the custody, maintenance and education of Aboriginal children. Additionally, and ironically, the Board was ‘to protect [aborigines] against injustice, imposition, and fraud’.⁴

It was through the Board that the wages and entitlements of Aboriginal people were diverted into government trust accounts and in an unknown number of cases, never returned to their legal owners.

Typically the Board might supply rations and blankets to Aboriginal people on a reserve, through local police, but government administration of reserve land was otherwise minimal. As well as rations, there was, at least officially, some schooling and provision of health services on Aboriginal Stations. Usually the Board put a married non-Aboriginal couple in charge as manager-teacher and matron respectively, but the NSW Public Service Board reported in 1938 that the appointment of properly qualified people to the job was a ‘rare occurrence’.⁵

Historian Heather Goodall says that in these early decades of the 20th Century no more than 15% of the Aboriginal population was under the managerial control of the Board – the rest were leading independent lives.⁶ With the Great Depression the proportion under direct Board supervision increased to over 30 per cent and ‘many more were on reserves under the surveillance of the police’.⁷

The Board was abolished and the Aborigines Protection Act 1909 (NSW) repealed in 1969.⁸

During its life, the Board diverted a wide range of moneys owing to Aboriginal people into trust accounts. This report begins with the Board’s control over the wages of children forced to work as apprentices, mainly in domestic or agricultural labour. It then looks at a variety of social security entitlements that were introduced and then amended over the course of the 20th Century. In a number of instances, the evidence discussed here shows these entitlements actually being diverted into Board accounts. For the sake of completeness, we have described all the major social security benefits available in the period 1900-1969 and noted, where relevant, the legal potential for diversion of these moneys to the Board. This is because our own research in NSW does not purport to be exhaustive and therefore actual diversion may have occurred in respect of benefits not revealed by our research. In addition, from a national point of view, the information may be useful to researchers in other jurisdictions, in the event that practices varied from State to State regarding diversion of particular benefits. Three other issues relating to Aboriginal labour and monetary entitlements are then briefly dealt with, before the report turns to the Board’s accounting and accountability obligations and the question of record-keeping.

\This Report formed the basis of the Indigenous Law Centre’s submissions to the Senate Committee Inquiry into Stolen Wages. The website for the Senate Inquiry, which includes the full text of this Report, is <http://www.aph.gov.au/senate/committee/legcon_ctte/stolen_wages/index.htm> .

Endnotes

1 ‘NSW Government’s shame over stolen wages payback’, National Indigenous Times, Issue 48, 4 February 2004.

2 Debra Jopson, ‘Where are the stolen wages?’, Sydney Morning Herald, 1 March 2004.

3 Brian Gilligan, Terri Janke and Sam Jeffries, Report of the Aboriginal Trust Fund Repayment Scheme Panel, Aboriginal Trust Fund Repayment Scheme, October 2004, s.1.2.

4 Section 7, Aborigines Protection Act 1909 (NSW). The general duty of supervision and care was extended ‘over all aborigines’ by the amendment to section 7(e) inserted by section 2(1)(b) of the Aborigines Protection (Amendment) Act 1936 (NSW).

5 Ibid, p.22.

6 Heather Goodall, ‘New South Wales’ in Ann McGrath (ed), Contested Ground. Australian Aborigines under the British Crown, Allen & Unwin, 1995, p.80.

7 Ibid, p.85.

8 Sections 3 and 4 and Schedule, Aborigines Act 1969 (NSW).