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Laywers warned on wages advice

by Elizabeth Burrows

6 March 2003

Lawyers who advise claimants accepting the Queensland government’s reparations offer who do not recommend claimants obtain other independent legal advice could risk charges of negligence according to a Brisbane Lawyer.

While a large majority of claimants have decided to accept the Beattie government’s reparations offer for stolen wages, others have chosen to reject it. Four of these people are currently being represented by the Caxton Legal Centre in Brisbane.

Caxton Legal Centre Director and principle solicitor Scott McDougall said legal advisors appointed by the Queensland government should advise people who were accepting the offer to seek independent legal advice before signing the documents.

Otherwise, Mr McDougall said, the lawyers could be vulnerable to claims of negligence if one of the people who are currently planning to sue the Queensland government went to court and won.

Minister for Aboriginal and Torres Strait Islander Policy Judy Spence said the Queensland government was providing independent legal advice as a free service to ensure claimants fully understood the implications of either accepting or rejecting the reparations offer.

“The role of the panel lawyers is to explain to clients the conditions and implications of accepting the Reparations Offer.

“The final decision rests with the claimant,” she said.

Mr McDougall said he did not believe the lawyers appointed by the Queensland government could be described as independent because the Call for Tender document required applicants to have a demonstrated willingness to cooperate with the department.

“I interpret that to be the basis for excluding lawyers who would challenge the various aspects of the offer and that raises issues of whether they can be truly independent if they have to demonstrate cooperation.

“Secondly if they’re being paid by the government and being selected by the government then I don’t believe they can be truly independent,” he said.

Old Mapoon Council Chairman Peter Guivarra said he understood independent legal advice to mean getting your own lawyer or solicitor and he did not consider just explaining the offer to people to be independent legal advice.

Mr Guivarra said many of the claimants from his community did not know what sort of questions they should be asking.

“Our people just accept what they’re saying. We’re fairly humble and don’t ask for much, he said.

Cherbourg Elder Ruth Hegarty said she had spoken to Ms Spence recently and had been assured the legal advice would be independent.

“The legal advisers are only going to tell us what will happen if we sign the document, not what options we have and it should be a two-way street.

“She doesn’t want them to know what else they can do; It’s only to follow the guidelines that the department has set down, she said.

Ms Hegarty said Aboriginal people had always been intimidated by people in powerful positions, such as lawyers.

“Maybe the leaders should be telling their people to ask questions such as what happens if I take this money or do I have another option.

“Those are the sort of questions we need to be asking and Aboriginal elders and leaders need to help people to come up with questions,” she said.

Mr McDougall said before a client could make an informed decision and before a lawyer can give specific advice about the impact of signing the acceptance document, they needed to have access to the claimant’s work and savings records.

“The government has not demonstrated that it will provide access to those documents,” he said.

The Call for Tender document recently distributed by the Queensland government lists potential claimants as Papuan, South Sea Islander and “other claimants” determined eligible by the Department.

Ms Hegarty said that while she did not want to deprive anybody, her understanding had been the offer was for Aboriginal and Torres Strait Islander people who had worked under the various Protection Acts.

“We thought the $55.4 million offer was to Aboriginal and Torres Strait Islander people.

“It makes me rather angry, not because you want to deprive the other people because I have nothing against South Sea Islanders or Papuans.

“But we thought it was something that was going to be paid back to Aboriginal and Torres Strait Island people,” she said.

Ms Hegarty said the offer from the Queensland government had included an agreement that any money left over after claimants had been paid back would be deposited into the welfare fund administered by the Government.

“There may not be anything left because we are paying all these other folk,” she said.

Ms Spence said the reparations offer had always been designed not to exclude anyone on the basis of their identification.

“While the Protection Acts mainly affected Aboriginal people and Torres Strait Islanders, some non-Indigenous persons also had their wages and savings controlled under the Protection legislation, including some Papuan, South-Sea Islanders and other groups,” she said.

The Queensland government have always stated that the offer was being made in the ‘spirit of reconciliation’ and that it would include a formal apology to Aboriginal and Torres Strait Islander people.

The Deed of Agreement to be signed by Claimants includes a once sentence apology from the Queensland government: “By this Deed the State makes a written apology to the Claimant for the actions of previous State Governments relating to the Controls.”

Source: Koori Mail

Further information:

• Work and Wages - National Perspectives
  Dr Rosalind Kidd, Delivered at the University of Adelaide, April 2003
  During most of the twentieth century, in every Australian state and territory, one group of people has been subjected to physical confinement and bureaucratic supervision on a scale otherwise applied only to the criminally culpable or the mentally deficient. Yet in almost every case these people had committed no crime. Without due process and without right of appeal they, and too often their children and grandchildren, were sentenced in perpetuity. For most people escape from this internment was conditional on walking away from family, country and culture. This was your reality if you were of Aboriginal descent.
• Stolen Wages National Situation Round-up
  May 2003 - Strong anecdotal evidence exists that wages and savings were controlled and are now missing. Stolen Wages Update ANTaR Qld Newsletter March 2003 - Our struggle is now being fought on several fronts as well as nationally.
• Stolen wages activist accepts Government reparations offer
  31 March 2003 - "They've given me up to 12 months to live, I have a death sentence and that was the thing that made me decide ... To put it bluntly I don't have the extra time to go and fight it in court but my heart is there and if I had that time I would be there fighting.
• 'Stolen Wages, Stolen Lives'
  29 April 2003 - Speech by Alfred Lacey, Deputy Chair Palm Island Council. When I was a young man on Palm Island in the early 1980s the phrase 'stolen wages', was used in my community by those who knew they had worked, knew they had been paid and wanted to know where it had gone ... My people want ... an honest settlement which acknowledges the value of their work and the pain of their deprivation.
• Black Lives Government Lies
  13 February 2003 -The launch of the second edition of 'Black lives, government lies' by Dr Rosalind Kidd.
• Investigators to report on national stolen wages case
  22 January 2003 - A national team of investigators have commenced work on a report into the lost and stolen wages and savings issue. But the probe will go much further than the Queensland border, with the team setting its sights on determining whether Governments controlled and then lost or stole Indigenous money in all states and territories.
• Unions back workers over Stolen Wages
  20 January 2003 - National Tertiary Education Union - An online petition, critical of the Queensland Government¹s handling of the stolen wages issue, will be launched tomorrow at the Queensland Council of Unions. The petition, posted a week ago under the sponsorship of Member for South Brisbane Anna Bligh, has already drawn well over 100 signatures.

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