Legal bid to fast track claim for Indigenous stolen pay

A law firm is trying to bypass the Australian Human Rights Commission in its claims against WA for stolen wages.

WA Indigenous Affairs Minister Ben Wyatt. Picture: Colin Murty

The law firm that secured $190m from the Queensland government in a landmark stolen wages claim is trying to bypass the Australian Human Rights Commission in its latest class action — this time against Western Australia, the state where the pay of Indigenous people was taken by the government until 1972.

Shine Lawyers’ complaint to the Australian Human Rights Commission on behalf of Indigenous people in WA, a required first step of its class action, asks the commission to dismiss the complaint on the basis there is no reasonable prospect of the matter being resolved through mediation. This would free the law firm to go directly to the Federal Court on behalf of Aboriginal people.

The prospect of mediation ­ordered by the Australian Human Rights Commission is unattractive to complainants for several reasons, The Australian understands. When 10 Aboriginal communities in the West Australian desert complained to the Australian Human Rights Commission in 2017 that the Coalition’s revamped and centrally administered work-for-the-dole program was racist, the dispute was tied up in mediation for about two years.

Finally, it was agreed the matter could not be resolved by conciliation and the case is now before the Federal Court.

The stolen wages case on behalf of Aboriginal and Torres Strait ­Islander people in WA is being run on an opt-out basis, meaning anyone who was subject to the policy of taking Indigenous people’s wages is eligible for compensation if Shine’s case against the McGowan Labor government succeeds. If the person has died, heirs may also be eligible.

Until 1972, if an Indigenous person earned a wage in WA, the state government could withhold up to 75 per cent of it. For years the law firm has been examining allegations that “tens of thousands of ­Indigenous workers across Australia never received their wages, which were held in government-controlled trust accounts”.

The firm found those affected Indigenous workers were employed in jobs including stockmen, farm hands, laundry assistants, kitchen hands, labourers and domestic workers.

Shine discovered that in many cases, these workers never ­received part or any of their wages.

The previous Barnett Liberal government designed a scheme to compensate Indigenous workers subject to the past laws but it was hampered by patchy documentation and most who were found eligible received just $2000.

On Monday a spokeswoman for the Australian Human Rights Commission confirmed that, in general terms, a complaint could be terminated without inquiry. The complainant can ask for this, then, if it is agreed, go straight to court.

“The grounds for termination of a complaint include circumstances where the president is satisfied that there is no reasonable prospect of the matter being settled by conciliation,” the spokeswoman said.

WA Indigenous Affairs Minister Ben Wyatt is among the many Indigenous people in Western Australia whose relatives were subject to the wages policy.

“I looked through the records of my grandmother, my father’s mother, and it highlights that money that was due to her was taken off into so-called trusts, and allocated as the government saw fit at the time,” Mr Wyatt, a ­nephew of federal Indigenous Australians Minister Ken Wyatt, said last week.

“So there’s evidence. The question is, what is the quantum? Who is entitled now to bring those claims?

“I think there are legal issues we certainly have to work on.”