Accounting for history….

 

Everybody’s journey through history is different – coloured by social practicalities, cultural assumptions and career objectives. My journey began in 1984 when I started a BA degree as a mature age student at Griffith University; and the end is nowhere in sight. In 1989, faced with a brief timeframe to submit a PhD proposal and seeking a project to keep myself entertained for the four-year duration, I decided to apply my fascination for the intellectual adventures of French philosopher Michel Foucault to an issue which was previously analysed in very basic power terms – namely, how governments in Queensland had controlled Aboriginal lives.[1] This required some inventive conceptual footwork – as far as I knew Foucault had never mentioned Australia, nor had he written substantively on race relations. What he did do – what interested me most – was think outside the square. He brought to his topics a wide range of texts and voices, exposing leads in unexpected power relations and undetected power domains, to generate more comprehensive analyses and bring new understandings to our comfortable ‘knowledges’.

I had read the ground-breaking work of historians such as Henry Reynolds, Charles Rowley, Ray Evans and Geoffrey Bolton who used terms such as conflict, dispossession and exclusion to chart the racial interface at the frontiers of occupation, the early days of white settlement, and the removals policy whereby thousands of Aboriginal Queenslanders were confined on isolated reserves. But I wanted to write a history of what followed, and I wanted to look at the machinery of government itself to ask: How did a 70-year regime of totalitarian control produce such disastrous outcomes on every social indicator – education, health, employment, housing, social cohesion, personal prosperity?

In piecing together the evidence to allow space for the widest range of Aboriginal experiences and bureaucratic voices, I compiled an account which charted the fluctuating prejudices and priorities, ambitions and failures which characterise the uncoordinated realities of governments at work. I kept in mind Foucault’s wonderful concept of governmentality – the field of reformative intentions and bungled operations of governments.[2] He detected an ‘eternal optimism’ in the constant devising and implementing of supposedly more effective strategies, but he said governmentality’s optimism is blighted by a ‘congenital failure’ inherent in the inevitable conflicts and complexities arising from the sheer quantity and extent of official interventions. Just think Queensland Health and Jayant Patel, and you’ll get the picture.

In thinking about the topic – Accounting for history – I realised that in my journey the notion of accounting for history has had three dominant characteristics – the telling of history, the charting of the finances, and the demand for accountability.

The telling of history began in 1989 with my doctoral research into archive holdings and church correspondence, and, after much persistence, 18 months’ daily research of government files which were, at that time, minimally archived and even more minimally comprehended. Had this latter point been different, of course, they would have never allowed such free access to any researcher. In striving just to complete the doctoral thesis my aim was to make sense of the material for myself, and hopefully for my examiners. Beyond that, my thinking was only that the research project, with its 2000 reference footnotes, might provide an administrative account for people whose families had been snared in the system which was never explained to them and which, even now, disdains accountability. Over subsequent years I gave my account of this incredible system in speeches and writings, laying the material out in all its suffocating, horrifying detail. The system was patently unjust, government practices were characteristically not only incompetent but positively injurious, yet I had no real thought of stepping beyond my role as a story teller.

I think it was the government’s conduct during the under award wage case on Palm Island in 1996 that led me to focus more closely on a history of the financial controls. In this Human Rights Commission Inquiry it seemed the government was determined to repudiate its own admissions of liability to pay award wages, thereby perpetuating the lies of the past to advantage itself at the expense of the legal rights of those it was mandated to ‘protect’; a frightening reminder of the vulnerability of truth in history. Ultimately the government was ‘motivated’ to pay $40 million in compensation, even though that’s less than one quarter of the amount illegally withheld. As the dust settled after the Palm Island stoush, it occurred to me that an analysis of the 70-year system of financial confiscation might provide an illuminating resource, not only as context for the extensive poverty which endures in communities today, but also to underline the key role of Aboriginal labour in Queensland’s economic development.

For around six years to 2002 I trawled through the data trying to tease out all the material relating to financial controls. It was soon apparent that the stated objectives of protecting Aboriginal earnings were warped by the moral bankruptcy of many of those with access to the money and the known incompetencies of the system. At almost every point there was a potential for Aboriginal workers to be cheated of their earnings. The records show the government knew of this likelihood, was warned of this likelihood, but failed to fix the system to prevent it.

Under the compulsory contract system the government ran a labour agency for thousands of men, women and children. It contracted them out at a discount even where demand dictated they commanded the highest rates: in many remote areas white stockmen were simply unavailable to work the properties. In other areas, year after year protectors reported Aboriginal stock workers were more highly valued; yet for much of the 20th century their labour was traded for between 30 per cent and 60 per cent the white rate. Between 30 per cent and 70 per cent of the wage could be paid to the worker as ‘pocket money’ during the contract term, but the government always knew workers were being cheated: protectors variously described this procedure as futile, a farce, and a direct profit to employers,[3] the government admitted it was probably not paid in many instances, and auditors in the mid-1960s, just prior to termination of the controlled labour system, said the government had no way of knowing if pocket money was ever properly paid.[4] Taking one year alone, say 1957, that’s a loss of around $18 million in today’s value. And this system ran for 70 years.

Between 1914 and 1972 police protectors took direct control of the remainder of Aboriginal wages, but the government was constantly warned of fraud on private accounts. In 1932 the government still did not supervise police dealings on Aboriginal savings and an inquiry found pilfering was so common there was more likelihood of fraud on Aboriginal accounts than any other government accounts.[5] Yet the government rejected a recommendation that people be able to check dealings on their money. Only in 1935 did the government introduce thumb prints to verify transactions but auditors frequently complained they were often useless for verification, and indeed only one in three was even checked at head office. In 1950 it emerged that thumbprints were not checked for workers contracted through the Brisbane office or from the northern missions; in 1964 there was still no check of thumb prints for all the child endowment accounts then holding almost $450,000. And signatures were never checked because the department had no database, even in 1965.[6] Given this deplorable lack of basic accounting safeguards, it will come as no surprise that many people, on finally receiving a bankbook after 1971, discovered the figure provided was a pathetic reflection of their decades of work and financial denial.

Countless audit reports, internal investigations, and indeed remarks by superintendents, top bureaucrats and at times department directors, lay bare the pattern of exploiting trust funds for government gain. Whether it was trust funds blatantly raided to cover items which were strictly a charge against consolidated revenue; whether it was the sidelining of up to 80 per cent of private savings in an investment portfolio to generate an interest bonus; whether it was exploiting child endowment for capital works while malnutrition on the settlements was the key factor in deaths of 85 per cent of infants under four years;[7] (is 85% accurate? It seems huge) whether it was cutting subsidies to the missions to recoup the endowment bonus; whether it was planning, even before they were paid from 1959, how to ‘divert to revenue’ the federal pensions for the aged, the widowed and the invalid;[8] whether it was bringing the Welfare Fund to the brink of bankruptcy by loading against it wages which were, as the director complained on several occasions, rightly a charge against revenue – in each of these cases it seems the government used and abused the monies it held in trust. And I have not even touched on the massive losses to the Welfare Fund through systemic negligence and failure to implement basic accounting practices, despite countless warnings to do so.

The more I worked through this material the more I realised that if I was reading these documents now, then the men who were reading these documents at the time knew full well workers were being cheated of their earnings and savings at every level: traded for well below their market value, not paid their pocket money quota, easily swindled of their savings, denied the mandated extra bonus of endowment and pensions, deprived of the potential of a competently managed Welfare Fund set up for their general benefit. The men at the time knew full well Aboriginal families were thereby struggling and dying in poverty, yet they never fixed the system. It is beyond belief that the politicians of today, acquainted as they are with this research, have the effrontery to describe themselves as ‘generous’ in offering a maximum $4000 as full payment for a lifetime’s suffering and damage. Despite their weasel words, this is indeed full payment because it is only given to those who sign away their legal rights to any further action to recover the money which would be due.

It was my peculiar position as keeper of a vast research resource which could not, under the terms of my access, be shared with other investigators, that set me on an activist path. I wanted to inform both potential claimants, and the general public, of the gross inequities of the Beattie ‘offer’. As the Stolen Wages Working Group we fruitlessly lobbied the government to at least negotiate the terms; we lobbied the media and key legal figures to speak out; and we got together lawyers willing to act pro bono for those who wanted to pursue in the courts their full financial entitlement. But, as the premier warned these erstwhile wards, it had the money to oppose and delay cases and had already spent $1.5 million to defend itself against court action by those it was formerly mandated to ‘protect’.[9] In 1898 Alexander Downer’s grandfather had pondered this same inequitable power differential.  Speaking of the ease with which governments could avoid accountability he asked: Why, because you have ‘the longer purse and a greater power of fighting your opponent, should you be exempt from action if you do wrong as a state, when the humblest citizen is not exempt from any responsibility for any injury done by him to his fellows?’[10]

And so my thoughts turned to jurisprudence. Surely, given the appalling and copiously chronicled mismanagement the Queensland government could not just walk away from these massive debts? Surely in the 21st century there must be a way to hold the current office holders accountable for what we know and what they know are the debts of history? Surely we should not be restricted to the government’s legal rhetoric – that litigation would depend on an individual proving evidence of fraud on their account, evidence which had to be supplied by the government which had lost so many records that one-third of those who applied for the reparation payment were rejected? Rather than the onus of proof lying with the plaintiff, I was determined that the onus of proof should lie with the government – to defend its record as trustee of Aboriginal monies to the same standard required of any other banker or financial trustee. I needed to learn enough about trust law, and national and international decisions, to make my arguments through the Queensland evidence.

There was a case, I remembered, in the United States where Indian claimants had sued the federal government for losing millions of dollars of their money when it controlled their trust accounts. This is the Individual Indian Monies – or IIM – case, otherwise named the Cobell case after lead plaintiff Elouise Cobell. You’ll find the full and ongoing saga on www.indiantrust.com. In the 1990s Dr Cobell was treasurer for the Blackfeet tribe of Montana and established the first Native American bank. In this role she soon learned of the endemic mismanagement of trust revenue generated on individually owned land through oil wells, mineral extraction, forestry etc; financial mismanagement which is ongoing. In 1996 she launched legal action demanding a full accounting of her trust money, and this has now developed into the largest class action in the history of the US, comprising 500 000 claimants of whom 200 000 are deceased account holders. The US court declared the government is a legal trustee of the IIM accounts and therefore, under standard trust law, must account for all money and property held in trust since 1887. The government estimates this might be over AUD$56 billion; it has spent over AUD$100 million fighting the case.[11] It has lost all the way. Mindful of the ever-increasing legal debt – compound interest applies on this lost money – Congress has demanded the Bush administration settle the case through negotiation with the claimants. The administration is still stalling.

There are two important differences between the IIM case and the stolen wages. First, there is a reversal of the onus of proof: it is the government which must defend its management. This is just what I would want to happen here. But second, our courts have never declared a state government is trustee for Aboriginal money and property controlled in trust during the 20th century – no such case has ever been mounted.  Indeed, according to legal analysts, Australian courts are ‘reluctant’ to enforce a legal liability on governments in the exercise of their discretionary powers, taking a narrower view than in Canada and the US of enforceable trust duties.[12]

In early 2004 I set out to better understand this reluctance. I thought that if I could construct a different accounting of this history, combining the legal possibilities with the financial realities, at the very least I would see what we were up against, and at most I might raise options which the legal experts could further develop. My book Trustees on Trial[13] chronicles this journey, and I’d like to acknowledge here the generosity of Griffith University in providing me a six-month research fellowship during the project.

As luck would have it, the launch of the book in September 2006 tied neatly with an event I had been trying to organise for several years – namely the visit to Australia by Elouise Cobell. My hope for her visit was to raise awareness for the campaign to recover the stolen wages from governments around Australia, and in early October we spoke at legal seminars and community meetings in Queensland, New South Wales and Victoria. Amazing but true – and entirely as I expected – when an international guest speaks of Indian trust monies lost and squandered by government the focus is solely on the issue of breach of trust, whereas in Australia I had previously been unable to persuade the media that the battle for stolen wages was not (yet another) demand by Aboriginal people for government money. By intertwining the two accounts, as we did in our talks and media interviews, Dr Cobell and I were able to assert the fundamental parallels: government tells people they are incapable of managing their own money; government takes control of that money but provides no documentary record to the workers; government loses and misuses trust money; government claims it has no legal accountability to repay. These core parallels, and the court findings confirming the absolute right of IIM claimants to a full accounting for all their money and property, convinced several members of the legal profession a case along these lines could be run successfully in Australia.

There is one last area I would like to touch on regarding accounting for history. Through the determination of the then senator Andrew Bartlett, a Senate Legal and Constitutional Affairs Committee of Inquiry was held into Stolen Wages nationally.[14] My submission included a brief analysis of financial controls in other States and the Northern Territory, which was subsequently  published in December 2006  by Australians for Native Title and Reconciliation [ANTaR] National.[15] I relied on the work of other historians who had investigated, within wider historical contexts, particular segments of financial management. It is clear nearly every jurisdiction legislated to control Aboriginal wages and savings to some extent; most operated trust funds; records show transfers of private monies to consolidated revenue; records show formal misgivings regarding the handling of Aboriginal money; records show child endowment and pensions were suspected to be exploited by missions and pastoral stations, particularly in Western Australia and the Northern Territory.

The committee held public hearings in Brisbane, Sydney, Perth and Canberra, and reported early in December 2006. At the Brisbane hearing it was clear the senators were convinced there should be no argument that people are entitled to their own money, they were dismissive of government rhetoric that somehow this is impracticable, and incredulous of government conduct surrounding both the 2002 offer and the blighted processes which followed. The looks passing among the packed gallery of community people, including a group from Cherbourg, showed just how important it is to validate the experiences of those who have for so long been denied their own voices, and whose very real historical experiences have been so grossly misrepresented by those purporting to have their interests at heart. Even this brief glimpse of our elected officers demanding some accounting for history was welcome fuel for those of us who still have a long road to travel.

 

Postscript:  After years of adverse publicity the Queensland government agreed in 2007 to consult with the Indigenous community regarding the $35.87 million unclaimed from its $55.6 million reparations offer of May 2002.  In March 2008 the government offered a maximum increase of $3000 to the original claimants and re-opened the scheme to new claims.  Rejecting the express wishes of over 90 per cent of survey respondents that all money be distributed among Stolen Wages claimants, the government unilaterally determined any unspent balance will be merged into the notoriously mismanaged Aboriginal Welfare Fund to form yet another government-managed Trust Fund. The fight for justice and accountability continues.