Gray, Stephen --- "The Elephant in the Drawing Room: Slavery and the 'Stolen Wages' Debate" [2007] AUIndigLawRw 4; (2007) 11(1) Australian Indigenous Law Review 30
[1] Standing Committee on Legal and Constitutional Affairs, Australian Senate, Unfinished business: Indigenous stolen wages (2006) (‘Stolen Wages report’).
[2] According to Mr Peter Bird: ‘My brother and I got sick and tired of this, of being under such a regime. We were supposed to be freeborn people but we became prisoners within our own country’: ibid 66. See also, statements made by Mr Alan Griffiths, ibid 54.
[3] Submission 18, ibid 99.
[4] Ibid 91.
[5] The terms of reference refer to ‘Indigenous workers whose paid labour was controlled by government’: ibid 1.
[6] Chris Graham, ‘The Big Read: Our Slave Past’, National Indigenous Times, 8 February 2007 <http://www.nit.com.au/story.aspx?id=9450> at 17 April 2007.
[7] See especially, Slavery Convention, opened for signature 25 September [1927] LNTSer 19; 1926, 60 LNTS 253 (entered into force 9 March 1927) (‘Slavery Convention’); and, applicable law under the Slave Trade Act 1824 (UK).
[8] See especially, Raymond Evans, ‘Kings in Brass Crescents: Defining Aboriginal Labour Patterns in Colonial Queensland’ in Kay Saunders (ed), Indentured Labour in the British Empire, 1834–1920 (1984) 183.
[9] See, eg, the evidence of Jack Sibley referred to in Bligh and Others v State of Queensland [1996] HREOCA 28, 15. Marcia Langton has referred to the conditions in which Aboriginal people worked as ‘not much better than slavery’: Marcia Langton, ‘A New Deal? Indigenous development and the politics of recover’, Speech delivered at the Dr Charles Perkins AO Memorial Oration, University of Sydney, 4 October 2002.
[10] Ann McGrath ‘Modern Stone-Age Slavery: Images of Aboriginal Labour and Sexuality’ in Ann McGrath and Kay Saunders (eds), Aboriginal Workers (1995) 30, 36.
[11] Bain Attwood, Telling the Truth About Aboriginal History (2005) 88.
[12] According to Curthoys and Moore ‘[t]he word ‘slave’ is often used rhetorically, metaphorically or simply carelessly, on the tacit assumption of a simple dichotomy that one not free is a slave’: Ann Curthoys and Clive Moore, ‘Working for the White People: An Historiographic Essay on Aboriginal and Torres Strait Islander Labour’ (1995) 69 Labour History 1, 4.
[13] For a recent discussion of the use of the term ‘genocide’ see Bain Attwood, above n 11, 93. Attwood argues that the term ‘genocide’ was deliberately misused by the so-called ‘history warrior’ Keith Windschuttle to discredit the positions of historians such as Henry Reynolds and Lyndall Ryan. According to Attwood, neither Reynolds nor Ryan characterised the policies of Australian governments during the early colonisation period as ‘physical genocide’, or a conscious policy of physical extermination of Aboriginal people. Instead Ryan argued that mid-20th century policies including the forced removal of children amounted to ‘cultural genocide’. According to Attwood, Windschuttle deliberately conflated ‘physical’ and ‘cultural’ genocide.
[14] According to Dirk Moses, only one author, Phillip Knightley, ever drew a parallel between Aboriginal people in Australia and the Holocaust: A Dirk Moses, ‘Coming to terms with genocidal pasts in comparative perspective: Germany and Australia’ (2001) 25 Aboriginal History 91, 102.
[15] Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginaland Torres Strait Islander Children from Their Families (1997).
[16] [1966] CthArbRp 148; (1966) 113 CAR 651 (‘Equal Wages’).
[17] This debate pits Raymond Evans as the major proponent of the ‘unfree’ school, and Henry Reynolds and Ann McGrath as proponents of the ‘free’ school. For further discussion see Part 3, below.
[18] Moses, above n 14, 108.
[19] Ibid 98. See also, Homi K Bhaba, ‘Foreword: Joking aside: the idea of a self-critical community’ in Bryan Cheyette and Laura Marcus (eds), Modernity, culture, and ‘the Jew’ (1998) xv.
[20] Moses, above n 14, 98.
[21] Ibid 95.
[22] Ibid 101.
[23] Ibid 107.
[24] The anthropologist W E H Stanner first rebuked historians for perpetuating the ‘great Australian silence’ in the 1968 Boyer Lectures. According to Ann Curthoys, the ‘silence’ was primarily a 20th (rather than 19th) century phenomenon, a product of white Australian nationalism: Ann Curthoys, ‘Constructing National Histories’ in Bain Attwood and S G Foster (eds), Frontier Conflict: the Australian Experience (2003). See also, Samantha Wells, ‘Negotiating Place in Colonial Darwin: Interactions between Aborigines and whites 1869–1911’ (Unpublished PhD thesis, University of Technology, Sydney, 2003) 26–27.
[25] For a discussion of the Indigenous response to the Beattie Government’s compensation offer as ‘insulting’ and ‘laughable’ see the Stolen Wages report, above n 1, 96–104.
[26] For example, some Aboriginal people were angry that Premier Beattie has referred to the compensation funds as ‘taxpayers’ money’: ibid 97.
[27] Model Criminal Code Officers’ Committee of the Standing Committee of Attorneys–General, Model Criminal Code, Ch 9, ‘Offences against Humanity: Slavery’ (‘Slavery’).
[28] 47 Geo III, sess 1, c 36.
[29] For a full discussion of these treaties see Slavery, above n 27.
[30] The Slave Trade Act 1873 (UK) represented a culmination and consolidation of these enactments: ibid 1–2.
[31] Slavery Convention, opened for signature 25 September [1927] LNTSer 19; 1926, 60 LNTS 253, (entered into force 9 March 1927).
[32] MCCOC referred to Myres S McDougal, Harold D Lasswell and Lung-chu Chen, Human Rights and world public order: the basic policies of an international law of human dignity (1980): Slavery above n 27, 7.
[33] For a discussion of involuntary servitude in the United States see US v Kozminski [1988] USSC 158; (1988) 487 US 931. See also, Slavery, above n 27, 10–11.
[34] Australian Law Reform Commission Report, Criminal Admiralty Jurisdiction and Prize Draft Bill Report No 48 (1990) s 6(3).
[35] Slavery, above n 27, 14.
[36] M Cherif Bassiouni, ‘Enslavement as an International Crime’ (1991) 23 New York University Journal of International Law & Politics 445, 459 cited in Slavery, above n 27, 15.
[37] Slavery, above n 27, 15.
[38] Commonwealth, Criminal Admiralty Jurisdiction, Discussion Paper (1991) cited in Slavery, above n 27, 14.
[39] Slavery, above n 27, 21.
[40] Ibid, Pt 9.1.1.
[41] Ibid 29.
[42] See Criminal Code 1995 (Cth) s 270.
[43] [2006] VCC 637 (unreported, McInerney J, 9 June 2006) (‘Wei Tang’).
[44] Ibid 6–7.
[45] Ibid 7.
[46] Ibid 11.
[47] Ibid. The offence of debt bondage was introduced after Wei Tang’s first trial.
[48] [1992] NZCA 125; [1993] 1 NZLR 141 (‘Decha–Iamsakun’).
[49] Ibid 141.
[50] Ibid 144.
[51] Ibid.
[52] [1988] USSC 158; (1988) 487 US 931 (‘Kozminski’).
[53] The Thirteenth Amendment was passed in 1865, after the American Civil War. It overruled the decision of the United States Supreme Court in Dred Scott v Sandford [1856] USSC 9; (1856) 60 US 393, in which it was found that slaves were ‘property’ under the then Constitution, and could not sue in a federal court.
[54] Kozminski [1988] USSC 158; (1988) 487 US 931, 932.
[55] Ibid 942.
[56] Ibid 932.
[57] Ibid 949.
[58] Ibid.
[59] Ibid 950–51.
[60] Ibid 950 (O’Connor J).
[61] Ibid 955.
[62] Ibid 959.
[63] Ibid 944.
[64] Ibid 945.
[65] Ibid.
[66] Ibid 947–48.
[67] According to Brennan J, ‘[g]iven the nature of the system the Padrone statute aimed to eliminate, the statute’s use of the words ‘involuntary servitude’ demonstrates not that the statute was ‘aimed only at compulsion of service through physical or legal coercion’, ante at 2762, but that Congress understood ‘involuntary servitude’ to cover servitude compelled through other means of coercion’: ibid 958.
[68] Ibid 948.
[69] Ibid 946.
[70] Ibid.
[71] Tina Dolgopol, ‘The Judgment of the Tokyo Women’s Tribunal’ [2003] AltLawJl 74; (2003) 28(5) Alternative Law Journal 242, 243.
[72] Ibid.
[73] Ibid.
[74] Prosecutor v Kunarac, Kovac and Vukovic (ICTY Trial Chamber, Case No IT–96–23–T & IT–96–223/IT, 22 February 2001) (‘Kunarac’).
[75] Kunarac (ICTY Trial Chamber, Case No IT–96–23–T & IT–96–223/IT, 22 February 2001) [542]–[543] in Dolgopol, above n 71, 245.
[76] Alison Holland, ‘Feminism, Colonialism and Aboriginal Workers: An Anti–Slavery Crusade’ (1995) 69 Labour History 52.
[77] Ibid 52–53.
[78] Ibid 52. See also, Tony Austin, Simply the Survival of the Fittest: Aboriginal Administration in South Australia’s Northern Territory 1863–1910 (1992) 42.
[79] For an account of ‘dispersal’ or massacre practised by the Queensland Mounted Police, see Arthur Vogan, The Black Police: A Story of Modern Australia (1890) Holland, above n 76,52.
[80] Holland, above n 76, 52.
[81] Article 1 of the Slavery Convention defined ‘slavery’ as ‘the status and condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised’. According to MCCOC the Convention distinguished between slavery and forced labour, which was ‘considered to be analogous to slavery but not as heinous as it’: Slavery, above n 27, 5.
[82] Sir Isaac Isaacs defined slavery as ‘the deprivation of all kinds of property, including a man’s property in himself’: Holland, above n 76, 56.
[83] Ibid.
[84] Convention concerning Forced or Compulsory Labour (ILO No 29), opened for signature 28 June 1930, 39 UNTS 55 (entered into force 1 May 1932).
[85] Holland, above n 76, 57.
[86] Ibid 56. Holland contrasts Bennett’s work with that of 19th century humanitarians, whose work was criticised by Raymond Evans as ‘largely the result of overblown rhetoric and confused or imprecise definition of terms…charges of slavery were basically polemical and political, ‘intended to arouse a groundswell of scandalised liberal consciences, locally and overseas’’.
[87] Ibid 55.
[88] Ibid 60.
[89] McGrath, above n 10, 41.
[90] End of an Era: Aboriginal Labour in the Northern Territory, Australian Institute of Aboriginal Studies (1987) (‘End of an Era’).
[91] In particular, Vestey’s hoped that the Berndts would assist them in identifying fresh sources of Aboriginal labour, and encourage such people if possible to ‘come in’ to Vestey’s stations out of the bush.
[92] End of an Era, above n 90, 272–73.
[93] Ibid 256–58.
[94] Owen Rowe, ‘Aboriginal Employment and Conditions in the Northern Territory’, North Australian Workers Union, 16 March 1932, ANU Archives of Business and Labour (Butlin Archives), ACTU Correspondence 1–5, cited in McGrath, above n 10, 41.
[95] Ibid.
[96] Bernie Brian, The Northern Territory’s One Big Union: The Rise and Fall of the North Australian Workers’ Union 1911–1972 (Unpublished PhD thesis, Northern Territory University, 2001) 110.
[97] Ibid 111. For discussion of the position of the unions during this period see McGrath, above n 10, 40–42.
[98] Brian, above n 96, 219.
[99] Northern Territory of Australia in the Supreme Court No 194 of 1958, 9. See also, Julie Wells, The Long March: Assimilation Policy and Practice in Darwin, the Northern Territory 1939–1967 (Unpublished PhD thesis, University of Queensland, 1995) 117.
[100] Justice Kriewaldt, however, considered that protection against slavery did not rest on the provisions of the phrase ‘peace, order and good government’, but on the fact that the Northern Territory was a ‘civilised community’: Northern Territory of Australia in the Supreme Court No 194 of 1958, 9.
[101] Stevens interviewed cattlemen, stockmen, station employees and Aboriginal people on 30 of the Territory’s 210 stations, revealing evidence of fraud, abuse of privilege and dereliction of duty: Frank Stevens, Aborigines in the Northern Territory Cattle Industry (1974) 3–4.
[102] Slavery, above n 27, 9.
[103] Deborah Bird Rose, Hidden Histories – Black Stories from VR Downs, Humbert River and Wave Hill Stations (1991) 150.
[104] Tony Austin, Never Trust a Government Man: Northern Territory Aboriginal Policy 1911–1939 (1997) 173.
[105] Ibid.
[106] McGrath, above n 10, 42. In this respect, he reflected the views of the Northern Territory Pastoral Lessees’ Association (NTPLA) and other employers, who spoke of Aborigines as ‘free-wheeling pets’ in the habit of ‘going walkabout’: McGrath, above n 10, 38–40.
[107] SAA 790, Dashwood to Holder, 12/7/1898 cited in Austin, above n 78, 46.
[108] Ibid.
[109] Dr Rosalind Kidd, Submission 49, Stolen Wages report, 6.
[110] Separate administration for North and Central Australia was introduced on 1 March 1927 by Part IV of the North Australia Act 1926 (Cth). Under this legislation the Northern Territory was divided into the Territory of North Australia and the Territory of Central Australia. It was repealed by the Northern Territory (Administration) Act 1931 (Cth).
[111] Austin, above n 104, 204.
[112] McGrath, above n 10, 42
[113] V G Carrington, Director of Native Affairs, Native Affairs Branch, NT Administration, to the Administrator, 10 October 1945, in A1734, NT1969/1404, AAC. Nevertheless, Carrington considered that ‘in no case was the treatment of natives so inconsistent with the requirements of the Aboriginals Ordinance and Regulations as to warrant cancellation of a licence’. This suggests an official view condoning conditions that were little less than slavery.
[114] After the Equal Wages decision ‘slow worker’ clauses continued to operate for a period under the federal Pastoral Industry Award, the Aircraft Industry Award 1955, the Hotel Employees’ (NT) Award 1960, and the Northern Territory Pearl Fishing Award 1955. In comparison to the pastoral industry, very few Aborigines were employed under these awards.
[115] Evans, above n 8, 203.
[116] Ibid.
[117] Ann McGrath, Born in the Cattle: Aborigines in Cattle Country (1987) 175.
[118] Ibid 145.
[119] Thalia Anthony, ‘Labour relations on northern cattle stations: feudal exploitation and accommodation’ (2004) 4(3) The Drawing Board: An Australian Review of Public Affairs 117, 118–20.
[120] Thalia Anthony, ‘Postcolonial Feudal Hauntings of Northern Australian Cattle Stations’ (2003) 7 Law, Text, Culture 277 at 297.
[121] Ibid 297.
[122] Ibid 286.
[123] Ibid.
[124] Ibid 286–87.
[125] Ibid 286.
[126] Barney Barnes, ‘You can go back to your place if you want to’ in P Marshall (ed), Raparapa Kularr Martuwarra… All right, now we go ‘side the river, along that sundown way: Stories from Fitzroy River Drovers (1988) 272, cited in Anthony, above n 120, 292.
[127] According to Ann McGrath, it ‘applied to people who were bought and sold for labour purposes’, but it ‘also describes coercive labour relations, where force has been used to obtain, retain or extract labour’: McGrath, above n 10, 36.
[128] Curthoys and Moore, above n 12, 5.
[129] Bligh and Others v State of Queensland [1996] HREOCA 28, 15.
[130] Stolen Wages report, above n 1, 3–4.
[131] Senator Andrew Bartlett quoted in the Stolen Wages report, ibid 129.
[132] Recommendation 5, Stolen Wages report, ibid 127–28.
[133] The Northern Territory was under South Australian administration from 1863 until the Commonwealth took over responsibility in 1911. See, generally, Kathy De La Rue, The Evolution of Darwin 1869–1911: a history of the Northern Territory’s capital city during the years of South Australian administration (2004).
[134] Austin, above n 78, 42.
[135] Ibid 43.
[136] McGrath, above n 117, 20.
[137] Ordinance No 12 of 1844 (SA). See also, Austin, above n 82. 48.
[138] In rejecting the proposed indenture if two children under these provisions the South Australian Attorney General commented that they ‘bear a strong resemblance to slavery’.
[139] Austin, above n 78, 44.
[140] Glen McLaren and William Cooper, Distance, Drought and Dispossession: a History of the Northern Territory Pastoral Industry (2004) 162.
[141] Ibid 60.
[142] McLaren and Cooper claim that by the early 1930s ‘[s]tation owners had adopted a paternalistic role, assuming responsibility for large numbers of dependants and believing, as a result, they were justified in not paying their workers’: ibid 163.
[143] Harriet Daly, 1877, quoted in Austin, above n 78, 47.
[144] Cf Dashwood, Select Committee of the Legislative Council on the Aborigines Bill, 1899, 4 quoted in Austin, above n 78, 46.
[145] For discussion and analysis of Larrakia labour in Darwin in the 1870s see Wells, above n 24,154–60.
[146] William Harcus, South Australia: Its History, Resources and Productions (1876) 184 cited in Kathy De La Rue, above n 133, 42.
[147] ���������������������������De La Rue, above n 133, 59.
[148] Ibid.
[149] Ibid 72.
[150] In the mission’s first year ‘the Aboriginal residents and missionaries cleared and fenced an eight acre paddock and two five acre gardens. The Aboriginal workers brought in huge quantities of mangrove wood and made outhouses and fences. They also dug two wells – one over forty feet deep and five feet wide – through hard and rocky ground’: Wells, above n 29, 216.
[151] The Queensland legislation left South Australia as the only state in Australia at this point without protective legislation. See, eg, Peter Elder, Northern Territory Charlie: Charles James Dashwood in Palmerston 1892–1905 (Unpublished Honours thesis, Australian National University, 1979) 51.
[152] See, eg, SAA 790, Foelsche to Dashwood, 14/2/1898 cited in Austin, above n 78, 46.
[153] Select Committee of the Legislative Council on the Aborigines Bill, 1899, 4 cited in Austin, above n 78, 46.
[154] SAA 790/1898/333, Kingston (Premier of South Australia) to Holder 22 August 1898, cited in Elder, above n 151, 52. See also, Dean Mildren, ‘A Short History of the Northern Territory’s Legal System to the Time of Federation’ in L Mearns and L Barter (eds), Progressing Backwards: the Northern Territory in 1901 (2002) 69. See further, De La Rue, above n 133, 114.
[155] PP (SA), 1899, no.77a, p.109 cited in Elder, above n 151, 57.
[156] PP (SA), 1899, no.77, p.99 cited in Elder, above n 151, 58. For a discussion of Gillen’s opposition to the Bill see Austin, above n 78, 68–69.
[157] See, eg, Elder, above n 151, 59 and De La Rue, above n 133, 114.
[158] See, eg, Elder, above n 151, 59 and De La Rue, above n 133, 114.–15.
[159] It was not, therefore, necessary to obtain a licence for the employment of a male ‘half-caste’. Note also that the apprenticing of Aboriginal and half-caste children could continue subject to the conditions prescribed by any regulation in that behalf’: Northern Territory Aboriginals Act 1910 (SA) s 23(3) (‘NT Aboriginals Act’).
[160] Under s 24(4) of the NT Aboriginals Act no licence could be granted to any person of ‘any Asiatic race or of any other race prohibited in that behalf by regulation’. This provision was mirrored in s 23(5) of the Aboriginals Ordinance 1918 (Cth) (‘1918 Ordinance’), which provided that ‘no licence to employ aboriginals shall be granted to any male person of any Asiatic race or any race prohibited in that behalf by regulation’. Under the 1918 Ordinance, therefore, an ‘Asiatic’ woman – but not a man – could hold an employment licence. In 1925, the decline in Asian numbers led to an amendment permitting ‘Asiatics’ – either female or male – to employ Aboriginal men. In 1928 a further amendment to s 23 provided that no licence to employ female Aboriginals was to be given to any Asiatic or Negro: see Commonwealth Gazette (1928) 2332. See also, Austin, above n 78, 259.
[161] Regulations 1 and 2, Commonwealth Gazette (16/9/1911).
[162] See Austin, above n 78, 5.
[163] Ibid 80.
[164] Ibid 80–81.
[165] Section 20 (relating to unlawfully removing or enticing an aboriginal from a reserve) also only applied to ‘aboriginal’ people.
[166] Commonwealth Gazette (29 May 1919) 908.
[167] In 1928 a new Form 11 was added to the Regulations. Under a new Regulation 22, the return to be furnished in pursuance of s 25 of the 1918 Ordinance by the holder of a licence to employ Aboriginals in a country district had to include information, inter alia, about the nature of the employment and the wages paid: see Commonwealth Gazette (21 May 1928).
[168] This was formally amended in 1925: see Commonwealth Gazette (30 July 1925).
[169] Aboriginals Ordinance 1933 (Cth) s 29A(5) (‘1933 Ordinance’).
[170] 1933 Ordinance s 29A(6).
[171] See Commonwealth Gazette (29 June 1933) 935.
[172] There was no requirement that the provision of rations be at an equivalent standard to rations paid to European workers, as had been advocated by the NAWU at the conference in 1930: see Austin, above n 78, 261.
[173] Ibid 262.
[174] Ibid 265. According to Deborah Bird Rose ‘[i]t is amply clear, however, that they [Vestey’s] cared about profits and that they insisted upon extracting profits, even at the expense of the Australian nation as a whole. Aborigines were at the end of the line in a series of relationships which force one to query whether Vestey’s ever showed any accountability to any society and to any set of legal institutions.’: Bird Rose, above n 103, 149.
[175] According to Ted McFarlane, who worked at Lake Nash during the 1930s:
those policemen and with their dignity they commanded the respect, they never had to tell a Black–fellow twice what to do – or anything like that. And the Blacks trusted them. They sort of knew that they were in good hands and the behaviour of the police towards them was very, very fair and just. That’s my unbiased opinion. I didn’t care if they booted every one up the backside every time they saw them – but they didn’t do that – or if they had to boot them, they did. Of course, if they did it now, there would be the ‘do-gooders’ and missionaries and the ‘what have you’ would have their scalp straight away for assaulting an innocent, poor-hearted Blackfella. But in those days, those station Blacks they didn’t get wages, they were paid 5 shillings a week, which was put to their trust account:
Interview with Ted McFarlane (Oral history transcript) Northen Territory Archives Service NTRS 226 TS 273,12.
[176] This was on the basis, firstly, that part-payment in cash resulted in gambling and waste; and secondly, to avoid disputes between employees and employers concerning whether wages had in fact been paid: Austin, above n 78, 206. Note that prior to the election of the conservative UAP government in 1932, Minister Blakely agreed to a minimum weekly wage of five shillings, with employees in town districts to receive part-payment in cash: Austin, above n 78, 262. See also, McLaren and Cooper, above n 140, 162.
[177] Interview with Valentine Bynoe (Val) McGinness, (Oral history transcript) Northern Territory Archives Service TS No 963. McGinness says he eventually started working for higher wages in 1933 or 1934, but that money still had to go into the trust fund.
[178] In particular, the Department of Treasury and the Department of the Attorney-General.
[179] Austin, above n 78, 268.
[180] End of an Era, above n 90. See, generally, Wells, above n 99, 56–77; McLaren and Cooper, above n 140, 164.
[181] End of an Era, above n 90, 62.
[182] Ibid 62–63, 115.
[183] Ibid 220–21.
[184] Children were employed because it was an ‘article of faith’ that good stockboys had to be ‘broken in’ early: ibid 66–67, 133.
[185] Ibid 73–80.
[186] Ibid 87.
[187] See, eg, the practice of ‘cockfighting’: End of an Era, above n 90, 103. According to the authors ‘[any manifestation or even hint of rebellion was met with instant physical punishment’. They also describe local administrations of ‘justice’, such as severely beating three young men caught stealing cattle, and chaining them up at the homestead for several days, the result of ‘the belief that Aborigines were better disciplined by the sight and the experience of punishment meted out on the spot’. One European ‘always went armed when there were Aborigines near, which was most of the time’. The authors describe an incident in which, for a joke, he shot into ground at the feet of a blind Aboriginal man approaching the homestead: at 124.
[188] See, eg, End of an Era, above n 90, 115, 218.
[189] The authors make this comment of incidents they observed at Limbunya in which the manager’s wife made ‘a detour to leeward of a group of seated women, holding her nose and snorting with disgust’: ibid 91.
[190] Ibid 97.
[191] This was the regulation allowing pastoralists to avoid paying wages where they were able to prove ‘to the satisfaction of the Chief Protector’ that they were maintaining the employee’s relatives and dependants.
[192] See Regulation 2(2), Aboriginals (Pastoral Industry) Regulations 1949, Commonwealth Gazette (30 June 1949).
[193] Regulation 5(2), Aboriginals (Pastoral Industry) Regulations 1949, Commonwealth Gazette (30 June 1949).
[194] See Northern Territory Electoral Regulations, in force pursuant to the Northern Territory Representation Act 1922 (Cth), the Northern Territory (Administration) Act 1910 (Cth), and the Commonwealth Electoral Act 1918 (Cth). Amended electoral regulations came into force on 7 November 1957 allowing Aborigines to vote: Statutory Rules No 66, 1957 Electoral Regulations. In theory, non-Aboriginal children (being ineligible to vote) could have been declared wards. However, in practice this did not occur.
[195] However, s 24 provided that a ward could commence proceedings against the Director or against another ward. Section 24 was repealed in 1962: see Welfare Ordinance 1961 (Cth) s 12 (‘Welfare Ordinance’).
[196] Dick Ward, who opposed the introduction of the Welfare Ordinance in the Legislative Council, stated that the provision allowing a native’s property to be ‘sold or anything else done with it without the supervisions of the courts…seems to me to place the native in a lower category than the mental defective’: Dick Ward, NTLCD, 10 June 1957. See also, Wells, above n 99, 113.
[197] Without giving reasons, Giese refused permission for stockman Mick Daly to marry Gladys Namagu, a ward from Western Australia. It was not possible to appeal. The case received national press coverage, and questions were asked in Federal Parliament. Following the controversy an appeal provision (s 67(2)) was inserted. Eventually, a new s 22 of the Welfare Ordinance 1961 repealed by ss 61–70. From this date the Director’s consent was no longer required for a ward to marry a non-ward. See generally, Wells, above n 99, 192.
[198] Wells, above n 99, 128.
[199] See, eg, Northern Territory Government Gazette (16 September 1959) which contains a table of wages applicable to the employment of wards. Males in agricultural work were entitled to £2 weekly; females to £1; drovers with plant and stock to £10 weekly, with plant only to £5; miners on the surface to £2 weekly, underground miners to £6 weekly.
[200] C D Rowley, The Remote Aborigines: Aboriginal Policy and Practice (1971) 300.
[201] Letter from J C Archer, Administrator to the Secretary, Department of Territories,15 October 1955, in Employment of Aborigines in the Northern Territory, A452, 1955/668, AAC. This letter contains a table listing the numbers of Aborigines employed in various industries as at 30 June 1955, and the numbers said to be in receipt of wages in excess of the prescribed rate.
[202] Wells, above n 99, 144.
[203] Letter from E.J. Hook to Department of Territories,2 November 1965, in Engagement of Aborigines on Northern Territory Government settlements and missions, A432, 1965/3158, AAC.
[204] Ibid. By ‘trappings’, Hook meant in particular the description of the relationship, and the description of the remuneration paid. Cf criticism of the Community Development Employment Program (CDEP) established by the Fraser government in 1977.
[205] [2001] FCA 1213; (2001) 183 ALR 249 (‘Cubillo’).
[206] Cubillo [2001] FCA 1213; (2001) 183 ALR 249, 254.
[207] Hal Wootten, ‘Conflicting imperatives: pursuing truth in the courts’ in Iain McCalman and Ann McGrath (eds), Proof and Truth: the Humanist as Expert (2003) 17.
[208] Deborah Bird Rose, ‘Uses of historical evidence’, in Mandy Paul and Geoff Gray (eds), Through a Smoky Mirror: History and Native Title (1999) 35, 36.
[209] Jan Muir and Monica Morgan, ‘Yorta Yorta: the Community’s Perspective on treatment of oral history’, in Mandy Paul and Geoff Gray (eds), Through a Smoky Mirror: History and Native Title (1999) 1, 3.
[210] Wootten, above n 207, 33.
[211] Ibid 34.
[212] Ibid 35.
[213] Ibid 36.
[214] Ibid.