Indigenous Law Bulletin
by Aileen Teo
For much of the 20th century, the NSW Government took money belonging to Aboriginal people and placed it in trust accounts for which it was legally responsible. Significant sums have never been repaid.
On 15 December 2004, the NSW Government announced the establishment of the Aboriginal Trust Fund Repayment Scheme (‘ATFRS’) to repay the funds owing to the Aboriginal people affected. This announcement follows a formal apology made by NSW Premier Bob Carr in March 2004 and the finalisation of a report by the Aboriginal Trust Fund Repayment Scheme Panel (‘the Panel’) in October 2004.
Under laws such as the Aborigines Protection Act 1909 (NSW), the Aborigines Protection Board (later the Aborigines Welfare Board) was given broad powers to ‘exercise a general supervision and care over all matters affecting the interests and welfare of Aborigines’. As part of this regime, the Board was given power over the earnings, savings and entitlements belonging to many Aboriginal people. Accordingly, between 1900 and 1969, sums of moneys were placed in trust accounts controlled by the Board in the names of individual Aboriginal people. Withdrawing the money was difficult and government officials could refuse permission to do so.
Following disbandment of the Aborigines Welfare Board, the trust accounts were closed down in 1969 and the remaining funds were transferred to the Department of Youth and Community Services. However, despite many years of campaigning by Aboriginal people, the moneys owing to many individuals or their descendants have never been recovered.
In February 2004, a story in the National Indigenous Times revealed the existence of a draft Cabinet Minute from the NSW Department of Community Services. Dated April 2001, the Cabinet Minute reportedly urged the NSW Government to adopt a scheme for repaying the outstanding trust moneys to the Aboriginal people concerned. In response, the NSW Government convened the Panel in May 2004 to design a repayment scheme following consultation with Aboriginal people.
The Panel comprised Brian Gilligan (Chair), former Director-General of the NSW National Parks and Wildlife Service, Sam Jeffries, Regional Chairperson of Murdi Paaki Regional Council and Terri Janke, an Indigenous lawyer. In October 2004, the Panel handed to the government its report and recommendations, following consultation with over 500 Aboriginal people and interested organisations in NSW at various locations.
The NSW Government has accepted the Report and all of the Panel’s recommendations.
Broadly speaking, the ATFRS is to be administered by the NSW Premier’s Department. As recommended by the Panel, staffing of the Scheme will be predominantly Indigenous, to the maximum extent possible.
Although at present, the final details of the Scheme have yet to be fully developed, below is a broad overview of what the Scheme will entail.
Both trust account holders and the descendants of deceased trust account holders will be entitled to lodge a claim with the ATFRS. However, priority will be given to processing the claims of living account holders.
Forms for claimants are currently being developed by the ATFRS and are expected in late March 2005.
The amount to be repaid by the ATFRS will be calculated by reference to the interest rate used by the Office of the Protective Commissioner. This rate aims to compensate Aboriginal trust account holders for inflation, interest and, to a limited extent, lost opportunity.
Information from the Australian Tax Office and Centrelink has been or will be obtained as to the status and treatment of the repayments for taxation and welfare payment purposes. It is unclear to what extent sums repaid will be treated as ‘exempt income’ for tax and welfare purposes.
The Government has indicated that no cap on payments is to be placed on the scheme, and that claimants will not be required to surrender any cause of legal action.
The ATFRS is an evidence-based scheme that will operate over five years. Claims will be paid out where there is certainty, strong evidence or strong circumstantial evidence of money being paid into the trust and no evidence or unreliable evidence that money was paid out.
Once a claim is received, designated staff from the Department of Aboriginal Affairs and State Records will search all historical records for written evidence to support the claim. Where written records are unavailable, oral evidence that is corroborated by other forms of evidence will be accepted to substantiate the claim. All claims will be referred to a new three-person panel comprised entirely or by a majority of highly respected Aboriginal people, who will review cases in light of all available forms of evidence. Members of the new panel are expected to be announced shortly.
There will be no cost to claimants for lodging a claim or for having records searched under the Scheme.
Practical assistance will be given to claimants putting together a claim. Additionally, counselling services will be made available to all claimants in recognition of the unpleasant or traumatic memories that may be brought up in making a claim.
As noted above, the details of the ATFRS have yet to be fully developed. However, it is possible to identify several issues that are likely to arise:
Under the terms of the Scheme, descendants of deceased claimants will be able to claim for moneys owing but the Panel recognised this is a difficult issue. The Aboriginal kinship system may make Western concepts of intestacy inappropriate for application in Indigenous communities. At present, there is no single benchmark within NSW Aboriginal communities about customary law and inheritance. Furthermore, it is unclear how repayments should be distributed amongst beneficiaries.
To ensure that implementation of the Scheme is not unnecessarily delayed, it is expected that the ATFRS will commence processing claims made by living trust account holders. Issues regarding the claims of descendants will be resolved in a culturally appropriate manner, involving an advertised deadline for claims, record searches for family connections and a final decision by the new panel.
Identified categories of claimants include child apprentices, endowees, pensioners and beneficiaries of lump sum payments. However, research suggests that there may be other categories of claimants whose wages or entitlements came under these government controls and, as such, may have a legitimate claim to the ATFRS. They include:
As recommended by the Panel, it is important to continue research identifying potential claimants to ensure that where possible, all moneys paid into the trust accounts are returned to those to whom it is owed, or their descendants.
A further issue that has been identified is the extent of the Government’s liability. Previous reports had indicated that as much as $79 million may have been owed to Aboriginal people, but this figure was revised down to $15 million (over 3 years) in the Panel report. However, as no cap has been placed on repayments made to the Aboriginal people concerned, it is unlikely that the revision in the estimate of Government liability will affect payments made to claimants. According to the Panel, the figure has been revised following consultation with the Indigenous community and registrations of expressions of interest, which indicated that the number of trust account holders was unlikely to exceed 3,500.
The issue of ‘stolen wages’ and entitlements is not confined to New South Wales and exists in other States and Territories throughout Australia. In Queensland, the Beattie Government’s response to the issue has been deemed unacceptable by many in the Indigenous community and the campaign for a ‘workable and equitable’ solution continues.
To highlight the issue in other States and Territories, Dr Ros Kidd is currently compiling a National Report into Aboriginal labour, wages and financial controls in each State. Once completed, the contents of the report will be used to seek a fully-funded independent National Inquiry into the issue of ‘stolen wages’ throughout Australia.
New South Wales:
NSW Aboriginal Trust Fund Repayment Scheme
Locked Bag 28
Ashfield NSW 1800
Phone: 1800 765 889 (freecall)
Department of Aboriginal and Torres Strait Islander Policy
PO Box 15397
City East QLD 4002
Phone: 1800 809 097 (freecall)
Aileen Teo is a final year law student at UNSW who is currently working as an intern at the Indigenous Law Centre. Introductory material in this article is from ‘Stolen Wages’ and Entitlements: Aboriginal Trust Funds in New South Wales, produced by the Indigenous Law Centre. For copies, please call 02 9385 2252 or email email@example.com.
 Originally known as the Aboriginal Trust Fund Reparation Scheme, the Panel’s first recommendation was that the word ‘Reparation’ be changed to ‘Repayment’.
 The Panel indicated that oral evidence may be corroborated by other oral, hearsay and expert evidence provided by other witnesses, or by other independent documents, for example, indicating that a claimant’s family lived and worked on a particular reserve.
 Prue Vines, ‘Consequences of Intestacy for Indigenous People in Australia: the passing of property and burial rights’ (2004) 8(4) Australian Indigenous Law Reporter 1, 2.
 Indigenous Law Centre, ‘Stolen Wages’ and Entitlements: Aboriginal Trust Funds in New South Wales, October 2004; Brian Gilligan, Terri Janke and Sam Jeffries, Report of the Aboriginal Trust Fund Repayment Scheme Panel, October 2004.