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The Australian
03-08-2025
- Politics
- The Australian
Janet Albrechtsen: ‘Stolen wage' cases must be seen for what they are
'Stolen wages' is a non-legal label attached to a spate of class actions brought by groups of Indigenous people against state and federal governments for claims of unpaid or underpaid wages between the mid to late 1930s up until the early 1970s. Although these appear to be legal claims, the judgments in these cases – which have yielded damages awards running into the hundreds of millions of dollars – unwittingly reveal they are no such thing. In each case, the judge admitted there is not enough evidence to support the various 'stolen wages' claims. Given there is little chance of establishing legal liability, the stolen wages claims are political, not legal, in nature. It follows that the law, our legal system, is not the right place for governments to make these enormous taxpayer-funded settlements. And yet there is now a troubling pattern of governments doing precisely that, reaching huge settlements paid for by taxpayers to Indigenous groups under the auspices of a cosy insiders club comprising a bevy of defendant and plaintiff solicitors and barristers, myriad other experts, litigation funders, of course, and judges. This elite club is allowing the legal system to be co-opted for political purposes. To be clear, lest what follows be misunderstood, there is nothing inherently wrong with Indigenous people making political claims for receiving little or no wages in the early decades of the last century. The fault lies with the political and legal club that is responsible for handing out taxpayer money under the cloak of the court system when in fact the claims are nothing short of a legal daydream. Australians have over many decades shown a commitment to supporting measures that genuinely improve Indigenous disadvantage. That much is clear from the fact that spending on Indigenous issues is rarely a mainstream election barney. However, if settlements are to be made to recompense Indigenous people for historical wrongs, they ought to be done in a transparent, honest and rigorous manner. Instead, judges are overseeing an unseemly and faux legal dance where a small group of legal insiders make whoopie with taxpayers' money. McDonald v the Commonwealth Perhaps one day a senior judge will call for an end to the ruse of stolen wages class action settlements. Alas, that did not happen in the most recent case of McDonald v the Commonwealth. Otherwise known as the Northern Territory Stolen Wages Class Action, this case was brought by a group of Aboriginal and Torres Strait Islander people and, where they have died, by their descendants, who claimed unpaid or underpaid wages while working on pastoral stations, other private workplaces, Aboriginal institutions and missions, or government-run stations from June 1933 until November 1971. The commonwealth governed the NT during that period. The claim was brought by Shine Lawyers on behalf of the plaintiffs, and was funded by litigation funders Litigation Lending Services. In April this year, Federal Court of Australia Chief Justice Debra Mortimer said that 'on any view of the pleadings and the filed material, the narrative of the claimed experiences of Aboriginal and Torres Strait Islander people in the Northern Territory casts a shameful shadow on the actions of government, government officials and other historic participants in the alleged exploitation of the labour of Aboriginal and Torres Strait Islander people'. Mortimer approved a settlement of $180m by the commonwealth to members of this class action as 'fair and reasonable'. The sum was calculated by multiplying $18,000 by the number of eligible claimants – up to 10,000. The legal conundrum arose when the Chief Justice focused on liability. Mortimer said that it would have been very difficult for the plaintiffs to establish that the commonwealth was legally liable for the alleged claims. 'The risks – in terms of proving liability and quantifying proof of loss – are plainly considerable,' Mortimer said. Surely something jars – legally – in the minds of curious people when plaintiffs, with little or no chance of succeeding at trial, receive a taxpayer-funded settlement of $180m that is duly signed off with much fanfare, and some highly critical historical commentary, by a judge as 'fair and reasonable'. The NT stolen wages case follows a familiar pattern of earlier stolen wages class action cases. In a case brought against the West Australian government by a group of Indigenous people – using Shine lawyers and the same litigation funders, LLS Fund Services Pty Ltd – in 2024, the plaintiffs and the WA government agreed to a $180.4m settlement. Another class action, brought against the state of Queensland a few years earlier and funded by Litigation Lending Services Ltd, led to a $190m settlement. Justice Bernard Murphy delivered judgment in both cases after hearing evidence in each that a group of Indigenous people in each state had not been paid, or had been underpaid, over a period of about 50 years. Murphy said that the class action members had been treated badly by government policies and had suffered shocking disadvantage. In each case, Murphy said that it would have been unlikely that the plaintiffs would have succeeded in establishing that the respective government was legally liable for the unpaid or underpaid wages had the class action gone to trial. 'I am satisfied that there is a significant risk that if the case proceeds to trial, the applicants' and class members' claims will fail,' Murphy said in 2024 when approving the $180.4m settlement in Street v State of Western Australia. Similarly, when approving the $190m settlement in the 2020 case of Pearson v The State of Queensland, Murphy said that: 'In my view the proceeding faced real risks and difficulties on liability and quantum, such that it was impossible for the applicants' lawyers to be confident of succeeding in the causes of action pleaded or, if they did succeed, obtaining any better result than the proposed settlement.' Settlements of legal claims between plaintiffs and defendants are, of course, not uncommon. The parties may choose to settle their case for a range of reasons, rather than go to court. Take a case of commercial litigation, for example, where a plaintiff is claiming damages for $100m. Even with decent prospects of winning at trial, a plaintiff may agree to take a haircut on the amount claimed. Litigation is a lottery, even for a plaintiff with a strong case. The prospect of a maverick judge at trial, the time, and legal costs in preparing a case, executive time and stress involved in giving evidence, possible bad media before and during the trial – even if you ultimately win — make a Pyrrhic victory likely. These and other reasons will often lead a plaintiff to settle a claim at a discount before trial. For a defendant, the same factors apply in reverse. Facing a $100m claim, a defendant may be prepared to pay, say, $20m to bring the matter to an end. The concept of 'go away' money is very real in commercial litigation. However, in the stolen wages cases, state and federal governments have agreed to settlements close to $200m even though there is no prospect of the plaintiff class action members establishing legal liability against the state or commonwealth at trial. Given this, it is not unreasonable then to suggest that the McDonald case, like other stolen wages cases settled by governments in recent years, appear to be poorly disguised backdoor ways of paying reparations to Indigenous groups. This begs a few obvious questions. If these claims are not legal in nature, but political, why are judges in each case essentially celebrating a legal farce by lauding the outcome? Need for transparency The other question is, why are governments using the court system to make enormous taxpayer-funded settlements where there is no legal liability to do so? One reason is that it is very easy spending other people's money. But still, if the government of the day – state or federal – genuinely believes taxpayers should stump up for stolen wages claims, then it should be done in a more honest and accountable way. If taxpayer-funded payments of this type are to be made by governments to Indigenous groups, they should be done openly as matters of public policy, not as a legal pretence. Governments could agree to pay reparations or make ex gratia payments to Indigenous people, rather than hiding behind the legal system and seeking out the imprimatur of a judge. That way, governments would avoid the expense and complexity of the court system. This direct route is not only honourable and honest but would cut out the middlemen of class action lawyers and litigation funders in each case making a motza from these faux class actions and allow more money to be paid to Indigenous people who have suffered historical wrongs. In the recent McDonald case, litigation funders LLS Fund Services Pty Limited received $30m for their work while Shine lawyers received upwards of $15m. Cowardice likely explains why governments are making these mammoth taxpayer-funded settlements under the cloak of the courts. Getting a settlement stamped by a judge means a government can avoid political accountability. Making the case for reparations to voters and taxpayers is a harder ask. Paying reparations for past alleged sins is far more politically controversial than lauding a settlement signed off by a Federal Court judge. This is not to criticise the practice of settling contested cases. Doing so in cases of genuine contest, and for a reasonable amount, is a laudable way to avoid clogging up the court system. Except that in the recent stolen wages cases, it is clear from the judgments that the plaintiffs would fail to prove in the respective cases that commonwealth or state government was legally liable for the wrongs claimed. And even in the unlikely event of success, the plaintiffs would not have recovered anything like the enormous sums agreed to. At the end of her judgment approving the commonwealth settlement for stolen wages in April, Chief Justice Mortimer said the 'enormous body of material' – meaning testimony of disadvantage suffered by Indigenous people – 'cannot fail to move the reader'. Her sentiments are, without question, sincere. But they are just that – sentiments. The legal system is concerned with who is liable for legal wrongs. While the Federal Court has powers under the Federal Court Act to approve settlements, it is disconcerting to see judges stamping their approval on settlements that look suspiciously like they are being reached for political purposes. At the end of her judgment, Mortimer made another observation. Having been critical about some of the conduct by Shine lawyers, and the litigation funder, she said: 'It seems to me a not inconsiderable number of people in Aboriginal and Torres Strait Islander communities in the Northern Territory would look at the figures being paid to the lawyers and to the funder … and then look at what their family members are getting at an individual level, and they would be frustrated, and likely mystified about how city-based non-Indigenous participants in this proceeding come out with so much money compared to their family and friends.' Instead of attacking lawyers and litigation funders, the Federal Court's most senior judge could have raised concerns the legal system is being co-opted for apparently unseemly political purposes. The only real winners are the lawyers and the litigation funders. And those judges who use the settlements as opportunities to express their deeply felt feelings. But those observations will have to wait for another judge. Janet Albrechtsen Columnist Janet Albrechtsen is an opinion columnist with The Australian. She has worked as a solicitor in commercial law, and attained a Doctorate of Juridical Studies from the University of Sydney. She has written for numerous other publications including the Australian Financial Review, The Age, The Sydney Morning Herald, The Sunday Age, and The Wall Street Journal. Inquirer Emissions policy has become a make or break issue for Labor and the Coalition. Inquirer Almost two years after the October 7 atrocities, when the PM failed to clamp down on anti-Israeli hatred and baulked at offering proper support to Israel's defence, we are in a worse place.
The Guardian
11-02-2025
- General
- The Guardian
Mervyn Street's parents were paid in rocks instead of wages. He led a fight for his people – and won $180m
As a child in the 1950s, growing up on a cattle station in the dusty red Kimberley, Mervyn Street remembers finding a rock in his mother's kitchen, with numerical markings on one side. This, he would learn, was a 'black penny'. 'My dad had, on the back of the penny, three ones – 1, 1, 1 – I didn't know what that meant,' he recalls now, wearing a worn bush hat and sitting at Mangkaja Arts Centre near his home in Muludja community, east of Fitzroy Crossing. The numbers, his father told him, were ration entitlements for flour, tea and sugar. Both of Street's parents were never paid a wage for their labour in their lifetimes; Street was only paid for his work for the first time when he was in his 30s. His father, John, was a Walmajarri and Jaru man from the desert. He built fences, tanks and troughs on Louisa Downs station, midway between Fitzroy Crossing and Halls Creek. His mother, Penny, a Gooniyandi woman from river Country, would clean and cook on the station. As a boy, Street chopped wood or helped his father with the fencing. Street was born in the traditional way: under a yellow hakea birthing tree known as a 'boomerang tree', although he is unsure if his birth year is 1950 or earlier. When he was around eight, or maybe 10, Hollywood westerns were shown at Eliza Downs, which inspired him to begin using charcoal and pencil to draw on the welded steel panels of a huge water tank on the property. He would draw the cowboys and cattle wranglers like his father, the tank becoming his first canvas, an artistic testimony to a way of life. As an adult, Street would often return to the water tank to remind himself of what he learned growing up, about the communal way of life and a love of Country. His drawings, then later his paintings, would chronicle the lives of Aboriginal mustering workers – such as his father and Street himself on cattle and sheep stations along the Canning stock route, spending his nights telling stories by campfire. Now comes Stolen Wages, Street's new exhibition at Fremantle Arts Centre as part of Perth festival, which tells the story of the wage theft inflicted on his parents, his people, on him. In recent years, Street led a class action against the Western Australian government on behalf of thousands of Aboriginal workers like himself; in 2023, the government settled, agreeing to pay $180m to these workers and their relatives. Asked about what this settlement means to him, Street, whose first language is Gooniyandi, modestly agrees it was 'probably' a good achievement. He recalls sitting across the table from lawyers who had come to his Country to ask about life on the land and the withholding of wages. 'Long time ago, maybe the [white] working men used to get something like £7 [per month] but our [Aboriginal] workers got nothing,' he says. 'My parents had nothing. They worked for nothing.' And yet, he remembers a spirit of comradeship among all the workers: 'There was [a] good relationship when the European settlement came, [building] good relations, and they worked together, you know? That's the time people didn't have a boundary line, nothing. All together.' But the work was hard. Street's father would accompany the muster, building cement tanks in the sand to draw water wherever the cattle went. Back at their tent home in Louisa Downs, his mother made bread and soup and taught the younger girls in the community to cook and clean. When at home, his father kept an eye to the weather 'When my dad saw there was cloud hanging around, he'd sing this rain song, and he'd get a feather of a white cockatoo and put it outside. I'd say, 'What you doing, dad?', and he'd say, 'I'm singing, I'm going to make that rain come' … when big rain came, that was the only time my dad stopped working.' Street's grandfather taught him to ride horses, by putting Street on the back of a small donkey. This was the start of his own life wrangling cattle. When he told his parents he wanted to go out bush mustering, his father showed him the swag and cup he would need to pack on a mule. He was all set. 'It was a lot of fun for me,' he recalls of that time. 'I didn't care about anything, makin' my own way, learning about all the different jobs.' At Fossil Downs Station in the 1970s, just north of Fitzroy Crossing, Street honed his skills at rough riding the newly broken-in blue-grey horses for which the station was known. (His 2018 acrylic painting Riding the Fossil Grey includes Street himself riding one such horse.) Some of his other works are inspired by his mother, such as the recent My Mum Kitchen, depicting the same kitchen where he found the black penny, and which he drew on a lithographic plate for the Australian Print Workshop. Drawings from 1996 held in the Berndt Museum collection of Indigenous anthropological works at the University of Western Australia show his mother and other women collecting water from a soak near Louisa Downs station, then carrying the water to camp, as the men dig a well and build a concrete water tank. Street's wife, a fellow Gooniyandi elder and artist, died in 2019. It is still not culturally appropriate for him to mention her name. 'He loved his wife dearly,' says Mangkaja Arts Centre manager Liam Kennedy, 'and from what I have been told, they were always together.' Street's son Fabian and his grandson Howard both live with him in Muludja. Stolen Wages includes a replica of the water tank on to which Street first began drawing, and continued to draw; the original tank was removed from Louisa Downs Station three years ago. 'I didn't know I could come this far from all the time I was there on the station,' Street reflects. 'When I started doing the drawing on the tank, in the 1950s, I didn't know I was going to be involved with these galleries and take me on a journey.' Stolen Wages is open at Fremantle Arts Centre until 20 April. Entry is free.
