Danny Gilbert, Managing Partner, Gilbert + Tobin. Sydney Launch of Trustees on Trial. October 2006. [FULL TEXT]
Let me acknowledge the traditional owners of this land, the Gadigal people, part of the Eora nation.
Thank you to Rosalind Kidd and ANTaR for asking me to launch Rosalind’s painstaking and powerful exposition of the injustices measured out to Indigenous Queenslanders who, as Rosalind says, were “… individuals forcibly co‑opted into the financial regime but largely excluded from its proceeds …” The publication of this book is timely and important for two reasons.
Firstly and most obviously, because the issues the book addresses remain unresolved and under consideration not only in Queensland but here in New South Wales with the Aboriginal Trust Fund Scheme still yet to do its work, and at the Commonwealth level, with the Senate Legal and Constitutional Reference Committee inquiry into stolen wages.
Trustees on Trial roars with the injustices inflicted on Indigenous people through the withholding of their wages. Dr Kidd painstakingly documents the Queensland government’s policies and actions demonstrating the dereliction of duty and the many failures of the government to protect the interests of Indigenous Queenslanders. Hopefully her book will encourage those with the responsibility for resolution of this substantially unfinished business to move promptly and with generosity to properly compensate those who have suffered.
A very interesting and perhaps more contentious aspect of Trustees on Trial is to be found in the title itself. Dr Kidd devotes a good part of this book to the proposition that the Government of Queensland placed itself in the position of trustee or fiduciary in control of the lives of Indigenous people with all the usual obligations of fiduciary, to act in the best interests of the persons concerned ie., the Indigenous people of Queensland. I quote from page 68:
“The power of the Government and the machinery of its protection regime was truly extraordinary, both in scope and intensity. It controlled child‑parent and marital relationships, the place and conditions of living, the type of labour and earnings from it, and the availability and security of private savings. Until 1972, every Aboriginal Queenslander was vulnerable to the extinction of his or her rights and freedom as individuals in the general community and as workers and wage earners. They were truly at the mercy of the Government in the exercise of its discretionary powers.”
Dr Kidd gives us example after example of monies wrongfully withheld, misplaced and misappropriated by officialdom under the Protection Acts. She makes the argument that because these monies were controlled by the Government of Queensland, the Government was under a fiduciary duty to protect the interests of Indigenous people, acknowledging as she does that no such duty has yet found its way into law in Australia. This is unlike the position in Canada and the United States where, as she says, the duty has gained some judicial favour.
At page 53 Dr Kidd raises a central question:
“Was there a power – perhaps extraordinary – to extinguish, destroy or impair Aboriginal interests and how was it exercised? Were people at the mercy of such a discretionary power? Did people surrender their interests, with or without confidence, in expectation of a benefit in so doing? Was there a particular undertaking by the Government, officiously assumed or otherwise, to act on behalf of the Aboriginal people, or a reasonable belief that it would do so? Did the Queensland Government’s legislative and executive history regarding controls over Aboriginal lives embody an expectation not to harm their interests?”
From any reasonable moral perspective it must be the case that Aboriginal people are entitled to insist that the Government’s proper role was to act in their best interests. However, looking at the history of what occurred over 100 years, unwittingly or otherwise, the interests of Aboriginal people were, in fact, harmed and harmed very considerably.
As Dr Kidd says at page 103:
“Whatever its knowledge, the Government had a duty ‘to act in harmony’ with its position as fiduciary on all matters pertaining to Aboriginal interests … this it patently failed to do.”
That said, I think it is impossibly difficult even in these more enlightened times for Government to discharge the responsibility of fiduciary. Wherever Government attempts to take control of the lives of its citizens, failure is almost always inevitable and with damaging ramifications over long periods. Government’s self‑appointed role as “fiduciary” or “protector” in the period up until the late 1960s resulted in manifest injustice through callous policy and neglect. Government’s subsequent role as “fiduciary” or “protector” of Aboriginal interests has also failed. By this I mean the paternalism and welfare of the past 40 years which has seen Indigenous people trapped in generational and disempowering dependency with the devastating consequences we are all aware of. Noel Pearson and other Indigenous leaders have, on so many occasions, spoken of the destruction and despair of passive welfare.
I said the publication of this book is important and timely for two reasons. The second is that it coincides with the re‑kindling of the so‑called history wars sparked by the Prime Minister’s speech at the Quadrant dinner last week. What he had to say was this:
“Of the causes that Quadrant has taken up that are close to my heart, none is more important than the role it has played as counterforce to the black armband view of Australian history.”
A problem I have with what the Prime Minister said is that there are at least parts of this counterforce which either seeks to minimise, or has the effect of minimising, the suffering of Indigenous people in their historical relationship with white Australia. It must be said again and again that the injustices meted out to these, our fellow Australians, were of monumental proportion.
Only in the last few days Pope Benedict has called on Australians to, “… accept historical truths” and that, “… commitment to truth opens the way to lasting reconciliation through the healing process of asking for forgiveness and granting forgiveness – two indispensable elements for peace”.
Dr Kidd’s book is a powerful reminder of these truths. At page 56 she quotes from an 1899 report to the Queensland Parliament by a Government appointed Protector, Dr Walter Roth:
“ ‘ Blacks are forcibly hunted from their water supplies and hunting grounds’, yet Aboriginal ‘laws of trespass’ prevented tribes from moving into neighbouring areas. In 1900 he again complained that graziers taking up cheap rental land illegally expelled local tribes from ‘each block of new country’. ‘They race their horses on to the blacks, cut them right and left with their stockwhips, break their spears, and take their [Government‑supplied] tomahawks from them’. He warned the Government that ‘… all blacks would be hunted into the sea unless large sanctuaries were provided in the north.”
I must say in fairness to the Prime Minister that he himself has recognised the injustice of what occurred and at a speech he gave in May last year at a Reconciliation Australia function in Canberra he made the point, “… that the treatment of indigenous Australia represents the most blemished chapter in the history of this country”.
The full history of what actually happened in the lives of Indigenous Australians needs to be told if we as a nation are ever to properly understand the historical relationship between Indigenous Australians and the white majority. Dr Kidd’s book joins that group of highly informative research texts exposing the record of what actually happened on the ground to Indigenous people and in this instance, it was the sustained misappropriation and misuse of moneys earned by and belonging to Indigenous people.
Dr Kidd has been tirelessly devoted to the issue of recovering the stolen wages since 1994. Her research has contributed to various cases before the Courts and her campaign efforts have pressured the Queensland government to make the offers referred to in the book, the processes around which and the quantum of which she rightly criticises. Dr Kidd has exposed yet another failure of contemporary Australia to fully understand and come to grips with past injustices on terms acceptable to Indigenous people.
I congratulate Dr Kidd, and I have much pleasure in launching “Trustees on Trial” here in Sydney.
10 October 2006