Justice: a variable commodity


In April 1997 the Queensland government issued a directive that all Cabinet documents and all legal advices be removed from locations on administrative files and returned to the control of the Cabinet Secretariat for “safe storage”. This does not refer to records of Cabinet deliberations which are already sealed at State Archives for a 30-year period. So why this new action? And why now? I’d like to use this forum to look briefly at the context of this extraordinary edict, to signal the ramifications for Aboriginal interests and to suggest a course of action to protect those interests from political abuse.

Over the last twenty years national attention has increasingly focused on Aboriginal affairs, on the issue of land rights in general and more recently on the battle over native title. The two main fronts of this battle are located in Queensland: Eddie Mabo’s ten-year fight for recognition of title on Murray Island; and the Wik people’s fight for recognition of title in the west of Cape York. The High Court’s 1992 decision that native title might conceivably survive where it had not specifically been annulled through the granting of freehold title opened up in law a procedural opportunity for mainland Aborigines to pursue title to unalienated land. And the High Court’s majority decision of 1996, allowing that pastoral leases did not necessarily pre-empt native title claims, has confirmed the status of Aboriginal people as bona fide litigants. They now have a recognised right to mount claims for a form of title to large areas of leasehold and Crown land.

The successful transition between the lodging of the claim and the winning of native title depends largely upon providing sufficient convincing evidence that the claimants have maintained continuing links with the land in question. Broadly speaking this evidence derives from three provenances: the knowledge of the people themselves preserved through discussion, instruction and ceremonies; accumulated anthropological information describing languages, culture and artefacts; and surviving administrative reports of movements of key individuals or groups in and around the target area.

The State government maintains ultimate control over the storehouse of records covering official activities over many decades which are accumulated in its name at Queensland State Archives. While most records are available on request, those deemed to contain sensitive or personal material require official permission from the relevant department before they are made available to researchers. It is true that files have been retrieved from Archives by various departments which have then been reluctant to relinquish them. At the time of my PhD research in 1991, more than a dozen files were retained by the Aboriginal department which, in some cases, denied it had ever received them. These were located and returned to Archives. I will return to this irregular trafficking in records, but for now it could be said that the April Cabinet directive, dealing as it does with records of the last thirty years, will not greatly impede the identification and recording of historical evidence which could be presented to affirm continuing Aboriginal interaction with claim areas.

While land rights have been the pre-eminent arena of scholarly, legal and media attention since the 1970s another, perhaps more dramatic, aspect of government actions and intentions has recently been exposed to public scrutiny. I refer here to the operations of governments during more than a century of administration of Aboriginal lives. Here in Queensland it is exactly 100 years since the first law was introduced specifically targeting those of Aboriginal descent for a whole network of interventions and controls. Subsequent regulations and amendments authorised the most intensive machinery of supervision and surveillance ever imposed on one sector of our population. Under a variety of designations, the Aboriginal department controlled marriages, directed where and how people lived, set up compulsory employment contracts, took over private savings, and was responsible for education, policing, justice, health and all aspects of the running of Aboriginal communities and country reserves. Around Australia other States implemented similar regimes of control early this century, and hundreds of thousands of Aboriginal people over the years, to their horror, found themselves redefined as wards of state.

In naming themselves the guardians of Aboriginal interests governments effectively deprived Aboriginal people of rights of choices and responsibilities. In Queensland these controls continued almost unabated into the late 1970s. It has only been since the late 1980s that Aboriginal councils have been authorised to manage their own budgets and administrations. So if we are to understand the present circumstances of so many Aboriginal people whose lives have been structured by government edict we must understand how governments have operated to produce these conditions. Prevalent destitution and despair are both an outcome and an indicator of deficiencies in the practices of government. They are a problem of government; they are not, and never have been, an ‘Aboriginal’ problem. Surely it is time to question how these all-powerful and unpopular guardians have managed to make such a monumental mess of their duty of care? To investigate how one hundred years of control has produced such deadly and dispiriting outcomes for thousands of Aboriginal wards of state across Australia?

During the terms of their proprietorship governments have controlled almost everything which can be known about their management of indigenous people. They have jealously restricted information which illuminates their operations, in general divulging only what will validate their actions. It is this closure which has facilitated the quarantining of debate into rhetorical cul-de-sacs such as “it all happened long ago”, “officials meant well at the time”, and “why should whites feel guilt about the actions of their forebears”. But one hundred years of control is not reducible to such teflon phrases.

In 1991, courtesy of Marcia Langton who was briefly in a key government position, I gained open access to the files of Queensland’s Aboriginal bureaucracy for the purpose of writing a PhD thesis on Aboriginal affairs in this State. What I found during fifteen months of research both fascinated and horrified me. In an account spanning the years 1840-1988, I detailed as many reference sources as possible as an indication to Aboriginal and non-Aboriginal inquirers alike of the type and scope of information available. We can now, finally, focus our critical attention more acutely – on the ongoing processes of government.

The voluminous records of Aboriginal lives and government practices during the history of white occupation is of vital importance. These details of the trauma and the trivia of government intrusions in private lives can now be useful to those who were never allowed to know why they were so coldly and comprehensively constrained. Already Aboriginal litigants are using evidence from official records to mount legal challenges against their erstwhile guardians. But the party that has the most to lose in this long overdue assessment of accountability still retains control over the storehouse of evidence upon which such assessment will be based. Experience suggests that the outcomes of justice are precariously balanced upon this inequitable point.

Take the recent Palm Island Inquiry, for example. Here seven Aboriginal men and women brought action under the Human Rights and Equal Opportunities Commission charging that the government had illegally underpaid them during the period 1975-1985. Despite months perusing multiple copies of my thesis in which the whole history of the government’s underpayment of its Aboriginal employees is canvassed in careful, and closely referenced, detail, crown law tendered not one of these crucial documents to the April 1996 Inquiry as relevant to government policy. When it became known that I would produce copies of this evidence in support of my Affidavit as expert witness, notification was received from crown law on the eve of the Inquiry suggesting I could be sued for damages. At the Inquiry it was argued unsuccessfully that both the thesis and myself were irrelevant; and immediately after the Inquiry the government demanded that all research material “of any kind dealing with any topic” obtained from files of the Aboriginal department be forfeited within seven days. The originals of all this material are, of course, still on its own files. Why would the government want to shut down a five-year research collection, obtained with written official permission?

In this case the government failed to prevent relevant evidence being placed before Commissioner Bill Carter, evidence which was liberally quoted in his damning findings of a deliberate, knowing and intentional underpayment on racial grounds. (Having scorned these findings, the government capitulated in April 1997 after the action was renewed in the Federal Court. Settlement included a public apology and payment of $7000 in compensation to each of the complainants, now known locally as The Magnificent Seven.) The research collection remains protected, securely, out of government hands.

Importantly, the matter of the Queensland government deliberately underpaying its Aboriginal employees has not been resolved. This settlement is merely the latest in a series of settlements on the same point dating back to 1979. Each settlement was preceded by chest-thumping from a government publicly proclaiming its legal right to underpay Aboriginal workers while privately accumulating legal opinion from eminent advisers including the Crown Solicitor and Senior Counsel, who stated that the requirement to pay award wages to Aboriginal employees was relevant and binding and that Aboriginal claims would succeed in a court of law. No doubt those who peruse the files relating to the Palm Island Inquiry 30 years from now will find similar advice to that recorded in May 1978: “Settle as quickly and quietly as possible.” Indeed documents on administrative files show that on several occasions – and as recently as 1986 – Cabinet discussed its breach of state and federal laws in its adherence to this policy of underpayment. Anyone reading this documentary evidence is left in no doubt as to the correctness of Commissioner Carter’s conclusions.

At the present time there are many other Aboriginal ex-employees of the Queensland government preparing legal actions on this same abuse of rights; we can assume the government will replay its charade. There are also many other ex-wards of State preparing legal actions against the government to recover missing savings. After decades of government control of their income, after decades of being refused permission to even see their bankbooks to check on official transactions on their earnings, many found to their horror in the late 1960s that they were left with a pittance. Questions were easily brushed aside by the department: evidence of particular accounts was all but impossible to find, files were hopelessly incomplete and muddled, it was all a long time ago, etc. Now, however, with a whole framework of reference information to work from, pursuit of file documents is confirming the incidence of negligence, fraud and mismanagement.

It is not only at the personal level that Aboriginal people are intending to demand accountability from the State. In seizing private earnings since early this century the government created for itself a nestegg worth millions of dollars in today’s terms. This pool – swollen by a range of compulsory levies in addition to the income tax which we all paid, and by the government garnisheeing of child endowment and pensions – was invested to raise interest to offset spending from consolidated revenue. While workers and pensioners languished in poverty these monies, theoretically held in trust for them as Aboriginal wards of state, were lodged in public utilities and rural hospital expansion projects, on capital works projects and on a range of departmental outgoings – such as emergency relief and rations, and costs of compulsory relocations – which were rightly government liabilities. At present a massive class action is underway involving around 100 people under the auspices of Queensland’s Aboriginal and Islander Legal Service Secretariat (QAILLS) and funded through ATSIC. For some time now researchers have been culling the files to compile a dossier which will throw light upon this long and questionable use of Aboriginal monies.

This, then, is the context of the government directive of April 1997. For several months, under cover of this directive, the government has been taking files from State Archives and taking documents from files. The point is, of course, that there is no one to oversee what government personnel are removing; there is no check on what they are doing with the extracted documents; there is no mention of those documents being returned. Questioned recently on this unsafe trafficking in documents, Aboriginal Affairs bureaucrat Jim Wauchope “denied there had been any destruction or removal of the Cabinet files”; yet flags are accumulating on a range of files indicating exactly the opposite.

It is conceded that the protection of Cabinet deliberations from public perusal for a 30-year period is an accepted cornerstone of the Westminster system. This allows, it is said, “robust” discussion and argument on policy matters in the security that ministerial viewpoints and government policy are not immediate public knowledge. All Cabinet documents – that is, all records of Cabinet deliberations and all documents which are discussed by Cabinet – are tied up in red tape for the appointed period. But here in Queensland we have a very important variation.

In 1995 the Labor government of Wayne Goss amended its own 1992 benchmark Freedom of Information Act to expand retrospectively the definition of a Cabinet document. Through generous terminology this category has virtually no limits to its application. Because now anything at all can, conveniently, be “proposed” as a Cabinet document and excluded from public scrutiny: it doesn’t have to be relevant to Cabinet discussions, it doesn’t have to go on the table, it doesn’t even have to be acknowledged. These “Cabinet documents of convenience” are simply put in a box, slid onto the floor of the Cabinet room, and become invisible for a 30-year period. During which time, of course, a range of legal actions will be fought out to bring to account those whose colleagues and predecessors have so much to gain in keeping incriminating evidence out of the justice system.

The attorney-general at the time insisted that the amendment was essential for “good Government and sound decision making”. But from the opposition benches current premier Rob Borbidge labelled the retrospective closure of documents which “had never been through Cabinet [and] had never been near Cabinet” a farce, and accused the Labor Party of introducing the adjustment to avoid accountability: “Few pieces of paper would exist in any back drawer along the length and breadth of George Street that would not be covered by this legislation.” And our current attorney-general Denver Beanland described the amendment as “freedom from information legislation” devised to “ensure that members of the public do not have access to information to which they are rightfully entitled”, adding that “in the interests of the people of this State, we will oppose this legislation in the strongest terms.”

Should we be surprised, now that they are in government, that these erstwhile indignant politicians are assiduously employing this mechanism? That selected information relating to the running of this most secretive and most notorious department is now being masked for 30 years? Is it good government to abort accountability? Is it good government to maintain a policy which is in breach of state industrial law? To wilfully quarantine for 30 years evidence which is known to be crucial to the legal rights of one’s constituents? Is it good government to make a mockery of the processes of law, proclaiming an innocence which is belied by documents which have intentionally been concealed?

It is one thing to put in place processes for adjudication of claims of government mismanagement or abuses of rights; it is quite a separate matter to ensure that both parties have equal access to the body of information in which such adjudication is grounded. It is less than eighteen months since crown lawyers, in full knowledge of the true facts, stood before Commissioner Carter at Palm Island and argued there was nothing to suggest the government had acted improperly in underpaying Aboriginal employees. Copies of the government’s own documents proved otherwise. What a travesty of justice would have occurred if the government had succeeded in concealing this evidence!

The storehouse of records which detail government operations in its management of Aboriginal lives is of critical importance. Not only is it essential if Aboriginal people are to obtain justice in legal forums, it is essential for our knowledge of our history and our understanding of ourselves. It is essential if we are to demand accountability of the officials who wield such frightening powers in our names. This information is not the property of temporary politicians to censor and conceal at their whim.

It is not in the interests of good government that those with the most to lose in facing the truth can so easily distort the evidence. We desperately need a neutral agency to take control of this invaluable information; to ensure that the processes of justice are not skewed even before Aboriginal people can present their cases to the courts. We must not allow a perpetuation of the lies of the past. It is up to all of us to demand truth in the present and for the future. This is essential for the reconciliation so many of us truly hope for.

Copyright Dr. Rosalind Kidd. Website development by: Ryan-Thomas Robinson