Shortcomings of concepts more than the lawyers

by Robert Richards, Solicitor

From 1897 to 1997 the Queensland government effectively appropriated wages payable to Aboriginal workers.  While the government used part of the sums to pay ‘pocket money’ to those workers, much of the money appropriated was either lost or even stolen by its custodians.  Obviously, this was morally wrong, but strangely the Queensland government still does not seem able to fully recognise this.

Trustees on Trial purportedly documents a deal by the Queensland government and Aboriginal communities for limited repayment of those moneys.  However, the book is really about the meaning of trust and fiduciary law and explores the shortcomings of those concepts.  As such, it is of particular interest to those lawyers who are interested in more than just the mechanics of the law.

In a foreword, Geoffrey Robertson QC states that in the 1960s, when trust moneys were disappearing, there was still no-one prepared to take the government to court to force it to obey its own laws, or at least to ensure that the wages were returned to those who had earned them.  Robertson asks: “And where were the lawyers?”.

One answer might be that, given the absence in Australia of comprehensive laws allowing the bringing of class actions (something documented by Kidd), what would have been the incredible time demands of any such litigation, and the quite extraordinary costs of our adversarial system, it would be unrealistic to expect that lawyers would have rushed into what could only be uncertain litigation.  In fact, it was only last year (in Campbells Cash and Carry Pty Limited v Fostif Pty Limited [2006] HCA 41) that the High court held that actions underwritten by funders should not be struck out as a matter of public policy (also LSJ, October, 2006, pp53-59).

Notwithstanding that decision, there are still those (particularly lawyers who represent tobacco companies) who seek to limit the funding of class actions.  However, the stolen wages issue is one, like tobacco litigation, where funding could serve a bona fide social purpose.

Another reason the lawyers were absent might be that there was no certain  legal remedy.  Kidd suggests – but I feel only half-heartedly – that while there are no cases in Australia allowing Indigenous claims against a government for breach of fiduciary duty, there have nevertheless been a handful of cases where the possibility has been considered (she cites the Mabo decision as an example).

Currently, we are told of the importance of Australian values, one of which is said to be the ‘fair go’.  Trustees on Trial is one example of how that purported value might be more a matter of political spin than fact.

Review in Law Society Journal of NSW, February 2007.