The Price of Justice
There is a very interesting internal minute on the files of the division of Aboriginal and Islander Affairs in Queensland. Dated December 1985, the minute details a meeting between Bob Katter junior, minister for Community Services and Aboriginal and Islander Affairs, and representatives of the Queensland Nurses Union. The QNU delegates had informed Katter that if all Aboriginal nursing staff working in community hospitals were not paid at the legal rate then action would commence in the industrial courts. Katter was handed a briefing memo which had been compiled by his undersecretary, Patrick Killoran. The internal minute relates that Katter read the memo, screwed it up in rage and disgust, and threw it in the bin, assuring the delegates he would approach cabinet to have all Aboriginal health care workers paid award wages.
This little vignette provides a useful introduction to a brief look at several inter-related issues: the matter of the government’s underpayment of its Aboriginal employees; the significance of union clout; and the disaffection between new minister Bob Katter and his senior bureaucrat of twenty years’ standing, Patrick Killoran. In 1986 the QNU was but one of about ten unions preparing action against the government on behalf of Aboriginal members. And ten years later the matter of underpaid Aboriginal employees is still subject to legal action. This article is intended to provide some background information to this long battle for justice.
The Queensland government does not deny it continually underpaid its Aboriginal employees. Quite the opposite. The government maintains a clutch of justifications for this discrimination: that subsidised housing, electricity and store prices made up the cash differential; that all Aboriginal workers were merely trainees; that lower payments were a means to maximise jobs and thus enhance Aboriginal interests; and that the government had a lawful right to set a lower wage.
All these justifications were advanced at the recent inquiry on Palm Island, where the government was forced to defend itself in an action brought before the Human Rights and Equal Opportunities Commission by seven elderly workers. There was one major problem, however. Evidence which crown law sought desperately (but failed) to exclude revealed that these justifications, like the emperor’s new clothes, lacked substance when exposed to the public gaze.
When we look at Aboriginal communities in Queensland today we are seeing the outcome of a century of the tightest administration any government has imposed on any sector of the population. These communities of substandard housing, defective amenities, social dysfunction, and overcrowded and impoverished families, are a creation of government. Until less than ten years ago, the Aboriginal constituents had barely a token input into practical infrastructure and social controls. To a large extent, I shall argue, the present pathological conditions are the visible evidence of the price exacted by the government in its cold-blooded refusal to pay legal wages to community workers. The recently empowered Aboriginal councils have a mammoth battle to rebuild their communities into viable social entities.
Working for a pittance
Prior to 1968 there was no institutionalised wage system for those whose labour constructed and maintained Aboriginal missions and settlements. But there has been, since 1945, a requirement that all able-bodied inmates must work at least thirty-two hours every week. This was enforced through jailings and deportations, and belies the convenient rhetoric of government generosity and Aboriginal handouts. And private pensions – child endowment from the early 1940s, and old age, widows, and invalid pensions from the 1960s – were deflected directly into departmental accounts. Only a small portion found its way into the hands of those whose social status had qualified them as in specific need of financial assistance.
When the Aboriginal department finally introduced a cash system on its reserves in 1968, payrates were set well below the basic wage deemed essential for survival for all other Australian families. The pitiful level was set despite knowledge relayed to director of Aboriginal and Islander Affairs, Patrick Killoran, that many reserve workers should be paid at the award rate because of the standard and category of their work. Evidence reveals that Killoran was informed that many workers were paid award wages for their work, except when they laboured on their home communities.
In fact, since 1945, a regulation decreed that all Aboriginal workers must be paid award wages where such categories were appropriate. There were only two exceptions to this: the pastoralists, and the government! Both of these employees profited greatly from their cheap labour force. It has been argued that the pastoral industry would not have survived without a labour pool held practically captive through compulsory work agreements and pre-set depreciated rates. Certainly Queensland governments over the decades have shown no intention of paying proper wages. In 1966, when the carpenter’s award stood at $48, Cherbourg builders were paid only $10 for the same work on the reserve. Apprentices, for whom no structured teaching or training was provided, were paid $3 at a time when the award rate was $21.
With the introduction of cash economies in 1968, funding allocations were so deficient that community managers were ordered to sack half their workforces to remain within budget. Massive retrenchments and pitiful wages brought appalling hardships, hardships carefully edited from annual reports by head office personnel. In 1969 when the dole was $23.25, files reveal a sawmiller with nine children was paid only $16, and a truckdriver with eight children struggled on $18.50.
Disgusted with government claims that the low rates reflected the trainee-status of Aboriginal workers, Queensland’s Trades and Labour Council berated the minister: “It seems to us that a large percentage of such so called training is in reality employment of Aborigines to carry out essential work for your Department at rates and conditions well below those prescribed in the Award”. Succinctly, the TLC concluded that the wages policy was “virtually robbery”. By 1972 the average wage on Palm Island was $23.80, but the basic wage had risen to $41.65. Families were condemned to cram fifteen and eighteen to a hut because they could not afford the $5 rent for the new commonwealth-funded homes.
Nervous of union clout in the industrial courts, the government utilised provisions under new legislation in 1971 to justify its discriminatory wages policy. Without public or parliamentary debate, s.68 of regulations gazetted in 1972 simply excepted all community workers from the requirement that equal wages be paid. Subsequently, whenever it was challenged on the underpayment of its Aboriginal employees, the government merely pointed to this regulation as proof they were acting within the law. Amazingly, crown lawyers at the Palm Island inquiry deployed the same tautological defence!
Documents on departmental files, part of the contested evidence produced to the HREOC inquiry, reveal the hypocrisy of this affirmation. Because when s.68 was first tested in the industrial courts in 1978 in an action by Yarrabah labourer and AWU member Arnold Murgha, the president of the Industrial Court stated this regulation did not exempt the Aboriginal department from his jurisdiction, because it did not clearly state an intent to abridge the liberty of the subject. Asked for his opinion, the crown solicitor concurred: Aboriginal wages were subject to the State’s industrial laws and the claim would likely succeed. Crown law advice was: settle without delay and with as little publicity as possible. Amid bitter – but confidential – recriminations, cabinet did settle.
Perversely, although the Murgha case was fought (and lost) within the ambit of the State’s Industrial Conciliation and Arbitration legislation, cabinet decided to blame the federal government for the costs of bringing Aboriginal pay up to the legal award level. Following crown law advice that the government was also vulnerable to civil action under the 1975Racial Discrimination Act, and paranoid about the advocacy of federal legal aid officers, premier Joh Bjelke-Petersen demanded the Fraser government foot the bill for the regularising of Aboriginal reserve wages. Rates were given of $3.6million [$10.5million in today’s terms] to achieve parity with the State’s guaranteed minimum wage, or an immense $6.85million [$19.5million today] to reach award levels. If the commonwealth did not fund the deficit, wrote Bjelke-Petersen, he would have to reduce services, raise rents and charges, or sack 850 workers causing, he warned, “massive social problems” from unemployment and “other factors”.
Fraser was unmoved. He pointed out that payment of state employees under state industrial awards was a state responsibility. Mindful of the looming federal election, minister Charles Porter told Joh Bjelke-Petersen that he would call a press conference to inform all reserve workers who was responsible for causing the “massive unemployment and inevitable social trauma growing out of it”. And in June 1979, the Queensland government decided it would not put one cent of consolidated revenue to the implementation of award wages for its Aboriginal employees.
A process of attrition
Each grudging wage increase has been paid for by the Aboriginal communities as hundreds of workers had their jobs stripped from under them. In the three years up to 1979, more than one thousand workers had already been sacked as the government was forced to upgrade the token wages. Access to unemployment benefits was disapproved, as the dole easily outstripped the ‘training allowance’. To forestall further union action, the department commissioned a survey of manning levels on communities. But this was no open-minded inquiry. It’s purpose, according to departmental documents, was to restructure the workforce towards award rates “at no extra cost from State budget” – effectively, to match manpower to money, not manpower to social requirements. The survey showed a full 50% of the remaining workforce would have to be sacked to remain within budget, and Killoran admitted this would “seriously impair the operation of essential services on communities”. That 50% mark was passed in 1983.
The devastating effects of these massive retrenchments are apparent from official records. In 1979 there were 22 people dependent on each wage earner at Bamaga, 43 for each wage earner at Cherbourg, 46 at Yarrabah, 50 at Edward River and Doomadgee, 61 at Weipa, and at Palm Island there were 99 dependents for each wage earner. As family incomes shrank, social pressures mounted. The department clawed back an estimated $1million revenue by raising rents. Incredibly, over $306,000 was withheld from the wages vote in the 1979/80 year to enable a media-orchestrated rise; house maintenance was drastically reduced so that tradesmen could be assigned to commonwealth construction projects and billed against federal funds; other workers were billed against the Welfare Fund, effectively soaking up Aboriginal trust monies to cover government liabilities.
With a shortfall of $2million to award levels, Killoran calculated in early 1980 that he could extract $300,000 by increasing service charges. But, given the parlous state of reserve housing, he declined to hike rents further, cautioning that this would provoke a dramatic increase in the demand for improved accommodation. Electricity and store prices on the communities were no longer subsidised, making a bitter struggle for survival on the meagre weekly pay of only $95, at a time when the state’s minimum wage was $124, and award wages stood at $163. To deflect increasing union pressure, the department approached the AWU with a special industrial agreement for Aboriginal reserve workers. To this the AWU agreed, provided, of course, the set rate was not less than award rates. The scheme lapsed.
When two Cherbourg nursing sisters sued the department for non-payment of legal wages in mid-1980, their pay of $79 per week was around half the award rate. The solicitor-general advised the government that the “prospect of resisting award wages was far from good”. Demolishing the government’s primary defence, he also declared that the fact of employing more persons than needed on reserves did not relieve the government of its legal obligations under federal racial discrimination legislation. Indeed, it was questionable as to whether the Aboriginal department was the legal employer of the nurses, whose site of work (the Cherbourg hospital) was in fact excised from the Aboriginal reserve as a hospital reserve; and whose work environment was under the control of the South Burnett Hospital Board. In my opinion, declared the solicitor-general, award rates apply.
In an attempt to establish that the nursing staff at Cherbourg were less than qualified, and working in “a sheltered workshop type situation”, the department commissioned a survey of several other small rural hospitals. The survey revealed the same inpatient and staff ratios. In fact, the only measurable difference for the Cherbourg hospital was the considerable financial gain accruing to the government through the lower wages paid to staff. The “sheltered workshop” defence was obviously a non-starter.
Killoran tried a different tack with the crown solicitor. Conveniently disregarding statistics on hand which confirmed community workforces had been slashed from 2500 in 1976 to only 1200, Killoran stressed that his department’s policy was to maximise reserve workforces by paying training allowances “to those persons who, through lack of qualification have been unable to acquire suitable employment as one would expect to find in the general Australian community”. Wages of the thirty nurses were paid by the Aboriginal department, argued Killoran, although he did concede they were then recouped from the South Burnett Hospital Board and that the Cherbourg matron actually engaged and dismissed staff.
The response came from senior counsel. He concurred with the solicitor-general. Nurses at Cherbourg were employees of the health department (through the hospital board) and thereby not subject to wage variations under Aboriginal regulations. Further, and significantly, he also advanced the opinion that s.68, as it presently stood, did not exempt the Aboriginal department from industrial law. To be binding at law, he affirmed, s.68 would have to be amended to specifically exclude payment of award rates to Aboriginal employees, and to authorise the director to set salary levels. And yet here we are, in 1996, with crown lawyers still using s.68 as a major plank in the government’s defence.
Killoran warned the health department of the impending legal action. We must decide on a stand against award wages for Aboriginal nurses, he wrote, and must plan a legal strategy to oppose the two nurses. But the health department was less than enthusiastic, excepting themselves from involvement in underpayment of Aboriginal employees. We merely accommodate the Aboriginal department’s arrangement, they protested. By March 1981 Killoran was again urging a uniform administrative approach against the threatened legal action. It would appear official stonewalling overcame the resolve of the litigants. The matter was not raised again for four years.
Admissions of guilt
It is clear from file data that cabinet was well aware of the damage caused by its policy of attrition. “To retrench workers or re-deploy them on Capital construction (housing) projects will only aggravate the deferred building maintenance program which already exists on Aboriginal communities”, new minister Kel Tomkins informed the treasurer in September 1981. With the total Aboriginal workforce now standing at only 1130, an engineered unemployment rate of a massive 92½%, Tomkins noted that further reductions “would seriously impair the provision of essential community and other maintenance services”.
Another significant item of evidence placed before the Palm Island inquiry revealed cabinet’s acknowledgement in August 1982 that its policy on Aboriginal wages was in breach of State industrial laws and conflicted with federal anti-discrimination. It was only at this late date that a decision was made “to pursue the objective” of award wages, but cabinet again affirmed its hard line against enabling funds. Three months later Killoran informed the treasurer of the serious backlog in the maintenance of government assets, namely housing. He described rents and electricity charges as at a ‘realistic’ level and not open to further increases. Wages were already subsidised through the Welfare Fund, he wrote, and unless cabinet approved funding, a further 180 workers would have to be sacked. No funds were provided.
It was not until March 1983 that wages for Aboriginal employees finally levelled the State’s guaranteed minimum of $170.40. Again cabinet discussed its breach of State and federal law. By this time a third of the 1979 workforce had been thrown on the scrapheap, and now a further 100 were to be dumped to accommodate the latest increase. “The reserve areas are, by comparison with Queensland generally, relatively depressed in economic terms”, the minister told cabinet with breathtaking understatement. “Without a substantial upsurge of economic growth or an increase in government servicing aid, the capacity of these areas to self-fund any reasonable contribution to higher wages costs cannot be achieved”. Again cabinet confirmed its hard-line against funding; and resolved to muffle public opprobrium by staggering dismissals in order “to avoid the social and political consequences of any sudden sizeable retrenchment”.
The department was well aware of the appalling effects of this premeditated policy of attrition. A 1984 survey showed that 81% of homes at Woorabinda were overcrowded, averaging nearly 8 persons. One 3-bedroom house held 21 people, and one 2-bedroom house held 10. According to the manager’s report the homes were in dire need of repair, needing re-lining, toilets and bathrooms. They were serviced by wood stoves and only cold water. But Cherbourg was at the low end of the scale. Homes at Palm Island averaged 12 persons, at Weipa South the average was nearly 14, and homes at Hopevale staggered under an average 19 occupants!
A battle of wills
It was late in 1984 that the QNU reactivated its fight for their members who were still denied legal wages. Representatives lobbied health minister Brian Austin, protesting that Aboriginal and Islander nurses only received the minimum wage and rarely got penalty rates for weekend and shift work. “If we were to persist in delaying the payment of award wages”, conceded new Aboriginal affairs minister Bob Katter junior, “some very serious problems could arise”. Austin reminded cabinet of the solicitor-general’s 1981 opinion that as employees of the hospital board, Aboriginal and Islander nurses were entitled to award wages. But, as Austin commented, there had been no progress in discussions with the Aboriginal department on the matter. It is most significant, that for these employees, subject as they were to the health department, cabinet now directed Treasury to provide the necessary funds to bring wages to the legal rate.
QNU representatives were quick to condemn this partial justice. Only nurses employed at the seven health department hospitals were brought to award rates; but what of staff at the six Aboriginal and fourteen Islander hospitals, still underpaid, they argued, by the very department responsible for Aboriginal and Islander advancement? These employees, as was the case for all community employees, were victims of Killoran’s recalcitrance, now at odds, as the files reveal, with his own minister.
Bob Katter had assured the Human Rights Commission in mid-1984 that new legislation would give administrative controls to community councils, thereby converting departmental employees into council employees. “Long-standing concerns such as the one you have raised will be satisfied”, he confirmed. But it is evident that his chief bureaucrat, in power as head of the department for twenty years, was loath to accept this reality. When councils lobbied Katter, declaring that government underfunding placed them at legal risk over wages, Killoran drafted a reply for Katter condemning their “reluctance to recognise the realities of Local Authority administration and decision making”. In correspondence with the federal Aboriginal department, Killoran disparaged councils for “maintaining a fixation requiring an amount equivalent to an award rate for each person”, and lauded the “strong social welfare component” of his department’s employment policy which ensured, according to Killoran, “as many jobs as possible are available in the community”. Ignoring council objections that manpower was already at dangerously low levels, Killoran directed them to reduce or retrench staff to stay within budget. So much for self-management!
It was around this time that the QNU representatives sought their meeting with Katter in pursuit of award wages for all Aboriginal and Islander employees. Marching into the room, Katter apparently demanded documents which, as the observer noted, he said he had waited six weeks. Killoran had pushed his standard defence: these nurses were not hospital board employees, and no funds had been allocated by Treasury to cover award wages. This note Katter ostentatiously screwed up and threw in the bin. The second document was a draft cabinet submission in which Killoran conceded that nurses’ wages should be upgraded “to forestall union action as payment of below award rates is arguably in breach of State industrial law and perhaps infringes certain laws of the Commonwealth”, but warned that to pay the nurses would be to open the floodgates for the remaining 1100 community workers. Their wage is consistent with their health care functions, Killoran argued, and savings from reducing workforces was enabling gradual ‘across the board’ wage increases for all employees. This last sentence, according to the observer, Katter crossed out for all to see, declaring there was absolutely no justification for treating this group differently.
Early in 1986 Killoran informed the public service board that the Transport Workers’ Union, and the Federated Engine Drivers’ and Firemen’s Union had joined the nurses union in serving notice of legal action. Killoran requested the PSB take “whatever action is necessary in the circumstances...to protect the Department’s interests” [emphasis added]. He also drew his correspondent’s attention to media reports that Katter had committed himself to full wages for all Aboriginal nurses, pointing out that no cabinet decision had yet been made on that matter.
In March the proverbial hit the fan. Katter deplored Killoran’s oft-repeated assertions that the government was not liable to pay award wages, and that successive legal actions settled out of court somehow vindicated department policy. “The State is vicariously liable”, Katter argued, “and the government stands in a position of extreme legal vulnerability on this issue”. He reminded his colleagues that since 1980 the solicitor-general had concluded that the prospect of successfully resisting payment of award wages was far from good, and informed them that the present solicitor-general, the minister for justice, and the minister for industrial affairs had all confirmed the government would lose several pending legal challenges.
Katter admitted that department workers were transferred to councils with insufficient wage funding. It would take $3.8million to bring wages to the legal level, he said, or else another 245 workers – that’s 32% of the remaining employees – would have to be sacked. Finally, cabinet directed award wages be implemented. But once again, holding to its hard line of seventeen years, release of funding sufficient to cover this legal obligation was refused. And Killoran was dismissed, after 42 years with the department.
Documents reveal that strategies were fabricated for the transfer 252 workers to alternative revenue sources. These were listed as the Community Development Employment Program (CDEP) or work-for- the-dole scheme, the commonwealth housing program, and the Welfare Fund. Effectively the State’s obligation would be expropriated from private social security (the dole), from federal funds (housing), and from Aboriginal trust monies (the Welfare Fund). In a draft submission to cabinet Katter signalled his intention “to achieve award rates through attrition” and pressure on the federal government. He conceded threatened action by unions exposed the State to between $3million and $4million, including backpay.
In June 1986 the FEDFA secretary deplored the policy of attrition against workers, describing it as “victimisation of those who ask for their legal entitlement”. He pointed out that grader drivers were still paid $81.30 less than the award of $308. In the same month nurses learned they would finally receive full wages. In November, and again in April 1987, acting on legal advice, the department again settled union-sponsored wage actions out of court to avoid a damaging precedent.
What price justice?
This, then, is the background to government policy and practices on award wages for it Aboriginal employees. A litany of admissions of deliberate and persistent breaching of State and federal laws; of gutted community workforces; of devastated social fabrics; of pathological overcrowding and jeopardised health. All this evidence is on the government’s own files, identified and catalogued in copies of my thesis in their possession, but not produced to the Human Rights Commission inquiry into Aboriginal wages.
The Commissioner adjudicating the inquiry, retired supreme court judge Bill Carter, quoted extensively from the contested documents in his detailed findings. He wrote: “The conclusion that [the Aboriginal litigants] were discriminated against solely because of their race and Aboriginality cannot be avoided. The wealth of documentation now available to the Commission permits of no other sensible conclusion”. The government, he found, had “intentionally, deliberately and knowingly discriminated” against six of the Palm Island complainants. He nominated restitution of $7000 each, and directed the government make a public apology for the pain and humiliation caused by this long-term denial of human rights.
But the Borbidge government has said it will disregard this adverse finding; a finding which we know, from the multiplicity of legal opinions and cabinet admissions standing on official files, the Queensland government has anticipated over a period of nearly twenty years. Invoking the recent Brandy decision, the Queensland government, alone of all Australian governments, will ignore decisions of the Human Rights and Equal Opportunities Commission. They will deploy a legal technicality to continue a charade which their own documents reveal has no validity.
The seven claimants now have to fight for scarce legal aid finances and start the whole process again in the federal courts. This struggle has recently commenced. And the battle to ensure all relevant evidence is tabled will likely be refought. How can the government have the gall to spin out this sorry saga yet further, wasting another half-million dollars of taxpayers’ money, making these elderly workers run yet another gauntlet of obstructionism and stress? Are they waiting for yet another claimant to die in the interim?