Not content with nicking the continent of Australia and the island of Tasmania, the incoming white chaps set about using the indigenous who survived the upheaval as free labour.
Cattle spreads in the north of Australia were huge and needed stockmen; pearling out of Broome needed divers. The latter work was dangerous with a high death rate.
But why pay for labour when you have the whip hand? Flour and baccy will do. And it’s not slavery (illegal in British territories) as the Blackfellas have nowhere else to go. Colonial, and then State laws made it illegal to move employment without permission.
The British Government in the nineteenth century was aware of the situation, but had difficulty controlling the actions of self-governing colonies.
The last of the six to get its own parliament, Western Australia, became the target of a British attempt at giving the indigenous half a chance. Into the draft colonial Constitution, as drafted in 1889, was inserted s.70, which provided that Blackfellas must get 1% of public revenue for their welfare.
That lasted all of seven years, and after three attempts at repealing the offending but entrenched provision, the colonists got rid of this obnoxious impost.
The ruthlessness of the nineteenth century settled into the assumptions of the twentieth, but the push for Land Rights under the Whitlam government which blossomed as legislation in the Northern Territory and then as Mabo for the rest of the country became symptomatic of an urgency on the part of the indigenous and some of their white sympathisers to rectify the economic wrongs of the past.
Hence there was a Report from the Senate Standing Committee on Legal and Constitutional Affairs in 2006 – “Unfinished Business: Indigenous Stolen Wages”, and noting the state of affairs particularly in the Northern Territory, see S. Gray “The Elephant in the Drawing Room: Slavery and the Stolen Wages Debate” (2007) 11 Aust Indigenous Law Review 30.
The situation in Queensland had involved small amounts being allocated to pay stockmen, but with the pay to be held in trust by the Queensland Government.
The claim in respect of these wages, never dispersed to the workers involved was settled, as noted in the Federal Court judgment, Pearson v Queensland (No 2) [2020] FCA 619.
The settlement sum, to be distributed among various representative classes of claimants (stockmen, families, descendants etc) was $190 million, with the funders behind the claimants taking 20% of the winnings pursuant to orders made under s.33V of the Federal Court Act, which provides for these sorts of funding arrangements.
Good work if you can get it, even juicier in the case of Street v WA[2024] FCA 1368, which involved unpaid stockmen in WA.
Bernard Murphy J, the same judge as in Pearson, opened with:
“This representative proceeding, colloquially known as the as the ‘Western Australia Stolen Wages Class Action’, is a significant matter in relation to a historic grievance between the First Nations peoples of Western Australia and the respondent, the State of Western Australia. The proceeding seeks damages for the widespread non-payment and underpayment of wages to Aboriginal and Torres Strait Islander people who worked in Western Australia between 11 December 1936 and 9 June 1972. There is no dispute that over that 36-year period thousands of Aboriginal men, women and children in Western Australia lived under strict legislative controls and many worked for little or no pay. For example, many Aboriginal men and boys worked on pastoral stations as ringers, or stockmen, sometimes from dawn till dusk seven days a week, and many Aboriginal women and girls worked as household domestics and nannies. They were fed or given rations, but provided little or no wages for the work they performed. During that period, many Aboriginal children who had been taken away from their parents and placed in institutions run by the State or by a church, were required to work before and after school and on weekends, and in some cases full-time, in laundries, farms and other places attached to the institutions. Those Aboriginal people were treated in a grossly discriminatory fashion compared to non-Indigenous people.”
Readers lacking background in WA’s colonial past will have no inkling that it was these conditions that led to the strike by indigenous station hands in the Pilbara, from May Day 1946 for three years.
The strike was organised by two Aborigines, Clancy McKenna, a truck driver, and Dooley Bin Bin, stockman, with Don McLeod overseeing the strategy. McLeod would go on to become the most hated white man in WA. All memorialised in Dorothy Hewett’s eponymous poem.
“Clancy and Dooley and Don McLeod
Walked by the wurlies when the wind was loud,
And their voice was new as the fresh sap running,
And we keep on fighting and we keep on coming.Don McLeod beat at a mulga bush,
And a lot of queer things came out in a rush.
Like mongrel dogs with their flattened tail,
They sneaked him off to the Hedland jail …”(… and so on for many stanzas)
It’s a timely coincidence that now over a quarter of a century since McLeod’s death, a biography is being written by Jan Richardson of Charles Darwin University. This is important history of the recent, but already forgotten, past.
Street: WA Stolen Wages Class Action
But back to Street’s case. Mervyn Street being the first name in the class of applicants, the unpaid indigenous workers (now mostly deceased from the period 1936 to 1972), their widows and children. Murphy J made the best of a bad hand for these people, observing:
“The proposed settlement does not attempt to compensate Aboriginal people for the shameful way they were treated.”
Which is just as well, as justice as provided for under the common law came up with a settlement agreed to by the WA government to pay $16,500 to each claimant (there ended up being 8,750) totalling $144.5 million and agreed costs of $15.5 million.
But the costs aspect became ever curlier, as Shine Lawyers, for the claimants, had needed litigation funding, received from LLS Fund Services Pty Ltd.
The costs seem eye watering, but as HH pointed out, the effort involved in rounding up the claimants was considerable – teams of lawyers visited 111 sites around WA, most of them very remote.
The settlement also recognised the large possibility of failure if the matter went to trial.
The funder put up $10 million to kick off (well, in slow instalments, finally reaching $14.5 million), but the reality was that Shine was left hanging for many millions as negotiation ground on.
The funder wanted a return on its investment of over three times, which HH toned down, pointing out that LLS had ceased to fund some year prior to settlement being reached, thus reducing its risk, which had been taken up by Shine.
In the end, Shine and LLS Fund Services were paid their costs. LLS got their investment back of $14.5 million, plus commission of $32 million, and Shine was allowed $27.5 million (more than a third of which were disbursements).
Murphy J trimmed Shine of $4 million from their claim, as having run up undue costs providing a Rolls Royce service that was unnecessary.
The upshot was that, after the State’s offer of $14.5 million toward costs, the remaining costs and fees had to come out of the agreed award to the victims, i.e. some $60 million out of $144.5 million.
HH had the grace to record the reaction of some in the class of applicants. The first, Mr Christopher Coomer:
“… a sample group member, filed a detailed and considered objection. He describes being taken from his family and placed in Roelands Native Mission, where he was made to complete farm work between 1960 and 1971. He says that he commenced his first job as a wood chopper at the age of six, filling house firewood storage boxes, and he went on to work in many jobs, including domestic rubbish collection, dairy work, managing the water irrigation systems, property fire break work, fruit picking, road and other infrastructure maintenance, caring for livestock, managing an animal slaughterhouse, maintaining farm paddocks, and helping with church services every Sunday. Mr Coomer describes the long days he was made to work as a child, the physical labour that was required, the poor and often unsafe working conditions, and the abuse that he and others on the mission endured. Mr Coomer alleges that he was not paid for that work and he describes the proposed settlement amount as ‘very unfair’ in those circumstances.”
McLeod: fought for the one percentSo the victims of decades long racial-based wage and industrial abuse get a little more than 60% of $16,500 each, while the funders, from their perfumed suites above Sydney’s CBD, see a return on their dollar of about 225%, without even taking on the high risk last year of the litigation prior to settlement.
Don McLeod worked a selfless life with the parents and grandparents of these victims, trying to advance their cause at every turn, with no eye to reward.
He was the moving force in the unsuccessful attempt to litigate the right of WA’s indigenous to the one percent of revenue promised by the 1889 Constitution: Yougarla v WA(2001) 207 CLR 344.
None of the events of 2024 would have surprised him. And this is the best that our clod-hopping legal system can come up with.
Perfect timing for a political leader to announce that it’s inappropriate for the Aboriginal and Torres Strait Islander flags to be visible at pressers. We are, after all, one people.