National Indigenous Times
5 March 2003
Lawyers warned off giving stolen wages advice
By Chris Graham
Lawyers who agree to offer ‘independent’ legal advice on behalf of the Queensland Government to stolen wages claimants are at risk of themselves becoming the target of future litigation.
The claim comes after the Beattie Government last week called for tenders from legal professionals to provide ‘independent’ legal advice to the estimated 16,000 Indigenous Queenslanders who may qualify for the Government’s $55.4 million reparation offer.
The offer is compensation for wages and personal savings which were lost or stolen by Government from 1900 to 1972, when Indigenous people were not permitted to operate bank accounts.
A growing band of high-profile lawyers and experts, including Director of Caxton Legal Centre, Scott McDougall, President of the Australian Council for Civil Liberties, Terry O’Gorman, historian Dr Ros Kidd and human rights lawyer Helen Burrows, have warned the tender process is flawed and could increase, rather than resolve, litigation.
The Queensland Government has denied the process is flawed or that the legal advisers will be compromised.
But Mr McDougall, who is coordinating the cases of claimants who have rejected the Government’s offer, said there were some major problems with the tender process.
“The first problem is whether or not lawyers engaged on this basis can be truly independent,” Mr McDougall said. “There is a requirement in the Government’s tender that the lawyer have a demonstrated willingness to cooperate with the Government.
“How can they then claim to be independent?
“Secondly, lawyers are being asked to advise in the absence of their client’s personal records.
“The tender documents make it clear that the lawyers who are engaged will owe a duty of care to the client.
“If you owe a duty of care to a client, I would have thought that duty would have to extend to ensuring the lawyer, at the absolute minimum, advised the client that he or she obtain a copy of his or her personal records prior to signing.”
There isn’t a legal body anywhere in the country which recommends a lawyer advise a client on his legal rights if the client has no idea of his legal status.
And that’s the stickiest point for the Beattie Government.
In accepting the offer, claimants must sign an indemnity form which prevents them from suing the Government down the track.
But it has refused to provide individual claimants with access to a mountain of Government files which would reveal how much of their money the Government has lost or stolen.
Historian Dr Ros Kidd said in some cases, claimants were owed tens of thousands of dollars, yet the Government offer is a maximum of $4,000.
“The offer is a pittance,” Dr Kidd said. “People who want to accept this offer should consider it a down-payment on a larger amount.”
Dr Kidd, who knows the Queensland Government’s archival system better than anyone, added that people “would be amazed if they knew the wealth of files the Government was holding” on the issue.
“There are multiple references to frauds and misuse of savings trust funds,” she said.
Terry O’Gorman, one of Queensland’s highest profile lawyers and the vice-president of the Council for Civil Liberties, described the Government’s offer as a “sick joke” and warned successful tenderers had better make sure their own personal liability insurance was in order
“How can it be said that an Aboriginal person is getting ‘independent’ advice when the lawyer has to be ‘approved by the department’?” he said. “It’s a nonsense.”
Mr O’Gorman said lawyers faced major problems if they advised a client in any legal matter to accept a settlement that was well below “the going rate”.
“The claimant may come back at a later time and say ‘I’m now suing you, the lawyer, because you settled on terms significantly disadvantageous to me’.
“I would have thought the same dangers apply to lawyers who are advising stolen wages claimants to accept the payout when everyone who is knowledgeable in the area is saying it’s abysmally low.
“Even the Premier and Judy Spence have inferred it’s low.
“I would go as far as saying the individual lawyer would have to take unusually strong steps to protect him or herself from litigation at a later stage.
“It’s probably such an unusual [situation] that it requires the lawyer, after giving his or her advice, to explain: ‘You need to go and see a further lawyer now to get advice that what I am proposing to you is in fact something you should accept’.”
Mr O’Gorman said there was a real risk people and their relatives who claim now could find down the track “they had been conned”.
“But there again that’s a state Aboriginal people have been subjected to for a long, long time.”
Minister for Aboriginal and Torres Strait Islander Affairs, Judy Spence would not comment broadly on the claims, but rejected any suggestion that lawyers would be acting unethically in the reparations process.
“The role of the panel lawyers is to explain to clients the conditions and implications of accepting the reparations offer,” she said.