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Editors --- "Bligh & Ors v State of Queensland - Case Summary" [1997] AUIndigLawRpr 39; (1997) 2(3) Australian Indigenous Law Reporter 391

Bligh & Ors v State of Queensland

Human Rights and Equal Opportunity Commission (Hon. William Carter QC)

24 September 1996, Palm Island

Aborigines -- discrimination in employment -- Racial Discrimination Act 1975 (Cth) -- ss. 8(1) 9(1) 1 5(1)(b) -- whether discrimination authorised by State law applying to Aboriginal people -- aptness of "special measure" provisions to validate discrimination -- relevance of intention to discriminate -- whether industrial award decisive -- nature of compensation -- whether remedy may extend to dependants -- formal requirements of inquiry and applicability of statutory time limits

Facts:

The complainants, elderly Aboriginal residents of Palm Island in north Queensland, alleged discrimination in employment on the basis of race between 1975 and 1984. The respondent State of Queensland was responsible, through variously named Departments and other agencies, for the management of Aboriginal affairs including the employment of Aboriginal people on Aboriginal Reserves such as Palm Island.

The basis for each complaint varied slightly but centred on the allegation that the respondent discriminated against the complainants on the basis they were Aborigines, by employing them at Palm Island in a range of occupations on terms and conditions less favourable than those which would have applied if they were non-Aboriginal employees. Many of the complainants had been employed at certain times on the mainland away from the Reserve, performing the same work for other employers on more favourable conditions. The Commissioner found that one complainant had been employed as the undertaker on Palm Island and buried 162 people between 1975 and 1986, and received no payment at all for these services.

The respondent defended the action on three grounds: (i) an employer/employee relationship did not exist between the complainants and the respondent; (ii) if it did, there was no discrimination in the terms and conditions offered to the complainants as against others in the same circumstances; (iii) if there was discrimination, it was not unlawful because the circumstances of employment on Palm Island constituted a special measure under s. 8 of the Racial Discrimination Act 1975 (Cth) ["RDA"].

Held:

The conduct of the respondent complained of was discriminatory. Such conduct was not saved by reliance upon the Queensland legislation. Similarly it was not saved by "special measures" envisaged in s. 8(1) RDA since for validity they must have as their "sole purpose" the adequate advancement of Palm Island Aborigines.

The claim for remedies by the wife of an employee has no substance. A complainant must be able to establish he or she was discriminated against by reasons of race. Mrs Florence Coutts' complaint can have no substance because although she is an Aborigine, she was not the person who was discriminated against.

The test in determining appropriate payment was what a reasonable employer would have paid a competent worker to carry out the work in question.

In accordance with s. 25V(1)(b) of the Racial Discrimination Act 1975 (Cth) the Commission is not required to observe strict formalities in consideration of matters before it.

After rejecting a submission based on delay, Commissioner Carter addressed the respondent's submission that the complainants should be confined to the terms of their original letters of complaint written in 1985 and 1986.

Determination:

Commissioner Carter:

The core of each complaint is that in respect of the employment by the respondent each complainant was discriminated against in the employment because of race and on that account each was required to accept terms and conditions of employment which were less favourable than those to which each would have been entitled were he or she not an Aborigine.

By s. 25V(1)(b) of the RDA the Commission shall conduct an inquiry with as little formality and technicality as a proper consideration of the matters before the Commission permit. This statutory imperative is strongly opposed to excessive legalism and is directed towards ensuring an inquiry based on the substance and merits of the complaint rather than upon matters of form. Consistent with that statutory requirement and with an acceptable measure of informality and lack of technicality I did not attempt to limit the complainants to the matters mentioned only in their individual letters but rather permitted each to raise as matters of complaint what each perceived to be discriminatory of them in their employment by the respondent. Their evidence in each case ranged over the specific matters referred to in the letter and also related matters.

The central feature of each complaint was the discriminatory conduct of the respondent towards each in the course of their employment but mainly in relation to the payment of wages. The evidence of each complainant amplified with the assistance of counsel the matters of complaint which were of particular concern. In my view the respondent was not prejudiced by such an approach nor by the manner and content of the presentation by each of their individual concerns in the course of the hearing. To accept the submission of counsel for the respondent on this point would, in my view, introduce into the Inquiry an unacceptable level of formality and technicality. Such would be contrary to the express terms of s. 25V(1)(b) of the RDA. ...

One of the male complainants died before the hearing took place. His wife sought compensation on the basis she was financially dependant on him at the time he was discriminated against.

... In short her complaint possesses all of the characteristics of what is often referred to in the courts as a Lord Campbell's Act action. Because her husband suffered financially on account of being discriminated against in his employment and since she was his wife and dependant upon him, she now claims to be entitled to complain under the RDA and to be compensated accordingly.

It is established as a matter of law that a complaint made by a person does not lapse with that person's death -- Stephenson v HREOC and St Vincent's Hospital Limited, (unreported, Federal Court (Full Court) Sydney, 26 July 1996).

The basis upon which Mrs Coutts complains raises however a different point. Whilst it is now clear that the Commission is bound by the RDA to investigate the complaint of Mr Buller Coutts in spite of his death, the RDA does not in my view give to his dependant widow the right to complain because of the alleged discrimination against her late husband. The essence of her complaint is that because Mr Buller Coutts suffered financially because of discrimination against him she is entitled to claim compensation for any pecuniary loss suffered by her as his dependant wife.

It seems to me that the RDA does not support such a complaint. If Mrs Coutts is to have a valid complaint it has to be found upon inquiry that she was discriminated against because of her race. She is an Aboriginal person but there is no evidence of her being discriminated against contrary to s. 15 of the RDA. She herself was not in employment with the Department and accordingly, there was no scope for the relevant discrimination to occur. It can readily be conceded that she might have suffered pecuniary loss because of discrimination against her husband but she herself did not suffer that pecuniary loss because of any discriminatory conduct against her by reason of her Aboriginality. If the surviving widow of an Aborigine who had been discriminated against in his employment was for that reason alone entitled to complain under the RDA then one can envisage the possibility of an absurd result. If the surviving dependant widow was a non-Aboriginal person, then on the basis contended, that widow would have a right to relief under the RDA. For there to be a valid complaint under the RDA, the person making the complaint must be able to establish that that person was discriminated against and that that discrimination occurred by reasons of the complainant's race. In the case of Mrs Florence Coutts her complaint can have no substance because although she is an Aborigine, she was not the person who was discriminated against. That person was her deceased husband. Accordingly it remains the obligation of the Commission to continue its inquiry into the complaint of Mr Buller Coutts. The complaint of Mrs Florence Coutts however cannot be substantiated and must be dismissed. ...

Commissioner Carter determined that in deciding the question of alleged underpayment, he would not focus on the technical question of whether the individual complainants would have been eligible to be paid under a particular industrial award. Instead the test was what a reasonable employer would have paid a competent worker to carry out the work in question. In applying this test Commissioner Carter noted the experience of several of the complainants with the award system when they worked on the mainland away from the Reserve. He also concluded that the work on Palm Island was performed in an "industrial setting" rather than a "social welfare training setting".

... Mr Buller Coutts and Mr Lenoy are good examples of skilled and experienced trades persons who strictly may or may not have been eligible for payment under an award. This would have depended on whether they were able to satisfy the formal requirements of the award by reference to formal qualifications. It would be easy for the respondent in this case to attempt to meet the complaints by simply pointing to the lack of formal qualifications of certain of the complainants. That however would in my view represent an over legalistic and too technical an approach.

These complainants certainly spoke in terms of their not being paid award wages. It should not necessarily be understood that they were thereby asserting their formal eligibility for payment under an award. The fundamental concern of each was that he/she was underpaid and that having regard to the services which each gave for the benefit of their employer in an employer/employee situation they were entitled to be paid at least the equivalent of the amount paid as a matter of right to a worker under an industrial award for performing the same work and rendering the same services for the particular employer as was done or given by each of the complainants for benefit of the Department.

Several of them had had the experience of both systems. Mr Lenoy for example had worked for the Proserpine Shire Council for four years. Amongst other things he had there learned how to use explosives. He was paid for that work as part of his employment. He was paid wages and was employed subject to the particular award governing employment by a local authority. The change of employment consequential upon his return to Palm Island did not mean a diminution in his work skills or that he performed different or less qualified work for his new employer the Department or that this employer the Department benefited less from Mr Lenoy's skills than did his former employer -- the only difference was that he was paid less for the same work, that he was paid less than that which he and other non-Aboriginal workers were paid for performing the same work in the employ of the Proserpine Shire Council. ...

Therefore in my view it is not a sufficient answer to these complaints to assert that the complaints are flawed because the respective complainants could not claim formal eligibility for payment under and in accordance with a particular award. They complained that, as Aboriginal workers on Palm Island in the employ of the Queensland Government Department of Aboriginal and Islander Advancement, they were paid less and they were not employed on the same terms as "other persons having the same qualifications and employed in the same circumstances on work of the same description" (s. 15(1)(b) of the RDA).

It was submitted for the respondent that in effect they were paid a "training" wage for employment -- not in an industrial setting but "in an institutional social welfare training setting."...

It is in my view quite wrong and contrary to the facts to regard Mr Buller Coutts the mechanic, Mr Fred Lenoy the boilermaker/welder/powder monkey, Mr Kitchener Bligh the painter, Mr Jack Sibley the benchman/carpenter/retail store clerk, Mr Maurice Palmer the overseer's gang leading hand and Mrs Mavis Foster the cleaner/cook's offsider as persons who were "training". By 1975 each of them was a mature adult who had already demonstrated considerable skills and talents in his or her various vocations. They were by then experienced in their respective trades and areas of employment. They worked in an employment situation whereby the employer was given the benefit of their collective and individual skills. It is unduly patronising to assert, as the respondent does, that they were merely "in training", the clear implication being that their services and the quality of them would only be tolerated in this "institutional social welfare" setting. Some if not all of them had well demonstrated the inherent falsity of this assertion in their employment outside of Palm Island. ... I think that it is desirable at this point to address further the issue which was relied upon by the respondent, namely, that there was no employer/employee relationship in existence between each complainant and the Department at the relevant time. The sole basis for this submission is the legislative scheme embodied in the 1971 Act and the 1972 Regulations. Counsel submitted that because of the coercive powers in the Director or the Manager of a Reserve in respect of any Aborigine, the Aboriginal worker on Palm Island was denied the free choice of employment -- hence the lack of any genuine employer/employee relationship.

Whatever the position may have been prior to 1975, one can find no evidence that in the relevant period any complainant did the work which he or she did only because of the coercive powers exercised by the Director or Manager. On the contrary, there is clear evidence that the complainants did the work which they did in the course of traditional employment of them by an employer. There was clearly an element of choice involved. Many of them chose to leave their employment on Palm Island and went to work elsewhere. Even on Palm Island, the employee from time to time resigned his or her job and sought other employment.

... The submission of counsel in my view has no substance. The facts demonstrate all of the indicia of employment, albeit on an Aboriginal reserve, in respect of each complainant. As pointed out above the respondent's own documents refer frequently to the "employment" of a complainant "in a variety of contexts". I am left in no doubt that each was employed in the traditional sense by the Department in "an industrial setting." ...

In assessing compensation, Commissioner Carter adopted the methodology of an expert witness
Mr Les Kidd.

... Mr Kidd in his evidence attempted to demonstrate the measure of pecuniary loss suffered by each. The mathematical exercise which he undertook in each case was, as he readily acknowledged, subject to severe limitations. Nonetheless I regard his approach as inherently valid in broad terms. Firstly, by reference to the staff cards and other documentary material made available to the Inquiry by the respondent, including the group certificates, Mr Kidd calculated the approximate total gross sum of wages earned by each.

A measure of inaccuracy was inevitable if, for no other reason, that the records were incomplete for the whole of the period of time accepted by both sides as relevant to the complaints. Thereupon he selected a particular award which might reasonably have been regarded as applicable to the work done by an individual complainant had the latter been employed "under an award." This selection was necessarily speculative and somewhat subjective.

However Mr Kidd's experience and his presentation has persuaded me of the logic of his approach. ...

I am satisfied that his approach provides one with the reasonable capacity to arrive at a generally correct if
not precise idea of the difference between what each was paid in the period 1975 -- 1984 and what each might have earned if paid a weekly sum equivalent to that to which each might have been entitled had he or she been employed under the particular award. ...

Commissioner Carter then dealt in some detail with the history surrounding the issue of the Government paying award rates of pay to Aborigines on Reserves. Commencing with a protest on Palm Island in 1957 which included a demand for award wages, the issue continued to draw critical comment in the years leading up to 1975 from trade unions, the Manager of Yarrabah Community, Palm Island residents and other sources.

... Then in 1975 the Commonwealth Parliament enacted the Queensland Discriminatory Laws Act and shortly thereafter the RDA.

This Commonwealth legislation became the catalyst for intense political activity between the Commonwealth and State Governments over the next decade 1975-1985. The impact of the 1975 RDA on the Queensland Government's past practices was readily recognised as was the fact that the due recognition of workers and the proper payment for their labour, particularly skilled labour, could no longer be avoided. The financial impact of any decision by the respondent to increase wages to Aborigines appears however in the documents to be the dominant concern, which in turn prompted the Queensland Government to agitate for increased funding from the Commonwealth in order to be able to pay workers on reserves the proper wage. The issue henceforth became intensely political and even the subject of correspondence between the Queensland Premier and the Prime Minister. ...

However it was a decision of the Queensland Industrial Court on 29 May 1979 (Matthews J) which supplied the impetus for increased concern on the part of the respondent and for even more intense political activity between Commonwealth and State. The Murgha case was one in which a claim was made by the Australian Workers' Union on behalf of one Arnold Murgha, an Aborigine employed by the Director of the Department Aboriginal and Islander Advancement on a reserve, for payment of wages in accordance with the Building Trades Award. ...

The case was in fact settled and the amount of the claim was paid but the hope that this might happen "quietly" was doomed. As the report of the Director to the Minister dated 30 July 1979 stated, the District Secretary Australian Worker's Union had visited Yarrabah, the Aboriginal Reserve near Cairns in North Queensland, and had "presented" the cheque for the settled amount to Murgha. The occasion was attended by not insignificant media publicity. ...

The matter continued to agitate political minds in both Queensland and in Canberra. Meanwhile the Aboriginal workers on Palm Island continued to be paid wages significantly less than award rates for their various callings even though s. 11 of the Queensland Discriminatory Laws Act had provided:

"A person shall not employ an Aboriginal or Islander in Queensland (whether on a Reserve or elsewhere) unless the terms and conditions of employment are not less favourable than they would be required to be if the employee was not an Aboriginal or Islander, and, in particular, the employee shall be entitled to be paid wages at a rate not less than the rate at which wages would be payable to him if he was not an Aboriginal or an Islander. ..."

It is readily apparent ... that even after ten years had passed since the enactment of the RDA and the Queensland Discriminatory Laws Act, the Government response to the requirement that a proper wage, in particular the equivalent of an award wage, be paid to Aborigines was still ad hoc and fragmented and addressed only in the course of crisis management and in the face of agitation, particularly by trade unions, in particular cases. In such cases the need for payment of the proper wage was acknowledged only reluctantly and in the case of Aboriginal nurses only "to forestall union action".

One can identify from the documents two main reasons for the Queensland Government's reluctance to pay Aborigines the wage to which they were clearly entitled; firstly, the financial effect was said to be such that since the operative legislation (the RDA and the Queensland Discriminatory Laws Act) which had increased the demands was Commonwealth legislation, the latter should adequately finance the State to enable its compliance with Commonwealth law and secondly, an alleged concern that the payment of higher rates would lead to unemployment on reserves. ...

By 1980 the respondent had acknowledged the need to increase payment of wages to Aborigines on reserves.

In a submission to Cabinet which referred again to the Murgha decision the Minister recommended that as from 1 April 1980 all adult workers on reserves, not in receipt of award wages, be increased to the Guaranteed Minimum Wage of $131.00 per week and that all junior workers receive two thirds of that wage. The Guaranteed Minimum Wage, otherwise known as the basic wage, was determined in accordance with Queensland industrial legislation.

The fact that the payment of the Guaranteed Minimum Wage represented less than the lawful entitlement of certain Aboriginal workers was frankly acknowledged by the Government as late as 1983. In a submission to Cabinet dated
25 March 1983 the Minister wrote:

"3. The Department has, over a period, moved towards across the board Award rates for all workers. It has done so in the knowledge, as previously conveyed to Cabinet, that payment for labour below Award rates is in breach of State industrial law and infringes certain laws of the Commonwealth."

The catalyst for change to the payment of award wages proved to be the passage of the Community Services (Aborigines) Act 1984. This Act saw control over reserves substantially pass from the Government to elected Aboriginal Councils. Commissioner Carter concluded his review of the historical material with the following observations:

... It is impossible to regard the particular complaints in this case in isolation or as constituting some form of whimsical agitation by a few malcontents. Rather the complaints reflect a long standing concern by Aborigines and other pressure groups who persistently urged the respondent to justly and equitably address the question of paying proper wages -- the equivalent of award wages -- to those Aborigines who qualified. From 1975, with the enactment of Commonwealth legislation, the whole issue was given a new impetus. From the point of view of the complainants however the ten years subsequent to the RDA had made no difference. Their ongoing concern is therefore reflected in the complaints made by them in October 1985 -- April 1986.

The evidence of the complainants about their employment on Palm Island and often elsewhere on more favourable terms, together with the historical material demonstrating long-standing agitation for award wages and resistance by the State of Queensland led Commissioner Carter to conclude that the allegation of discrimination was made out by six of the eight complainants.

... I am more than comfortably persuaded that in the case of each of the above complainants they were afforded less favourable terms of employment and less favourable conditions of employment than those offered by another employer to other persons having the same qualifications and employed in the same circumstances on work of the same description.

The complainants were demonstrably the victims of racial discrimination. The sole source of that discrimination was in each case the fact that each was an Aborigine.

I will deal below with the question whether the discriminatory conduct of the respondent in the payment of wages was in each case unlawful.

At the present I need to address one aspect only of the law relating to discriminatory conduct. Before doing so I should make it clear that in finding that in each case the complainants were discriminated against in their employment by reason of their being paid less than the wage to which each was otherwise properly entitled by reason of their race, I have relied not only on the evidence of each complainant but also on the large body of documentary evidence some of which I have identified above.

The theme of this material is unmistakable. The payment of wages to Aborigines employed on reserves was dealt with differently to the manner in which non-Aboriginal staff were paid. The notion that Aboriginal workers performing services in the course of their employment with the Director should be paid at the same rate and enjoy the same conditions of employment as those employed subject to award conditions, was never seriously considered by the respondent until about 1984.

In spite of persistent agitation by Aborigines themselves, supported by the trade union movement from at least 1957, and in spite of the enactment of racial discrimination legislation by the Commonwealth in 1975, the respondent continued to resist the proposition that Aboriginal workers performing the same work, providing the same services and using the same skills should be paid the same wage as non-Aboriginal persons who may have had the benefit of award conditions. The entrenched policy of the Government was that whatever the proper payment was for a particular service provided by a non-Aboriginal worker, the payment to be made to an Aboriginal worker doing the same work and providing the same level of skills had necessarily to be less. Even when in 1979 the Queensland Industrial Court held that the Aboriginal worker was as a matter of law to be regarded as having an entitlement to award conditions, the Government reluctantly paid but settled out of Court and expressed a concern that such a payment might be seen to be a precedent. This deep seated resistance to paying a proper wage was enduring; in spite of agitation by different trade unions the resistance remained firm; when the impact of Commonwealth legislation was recognised the only response was an intensely political dialogue between Governments espousing apparently different policies which continued for about ten years.

In my view it is beyond doubt that the discriminatory response of the respondent was based wholly and solely on the fact that the relevant workers were Aborigines. Because of their Aboriginality they were to be dealt with differently; by reason of their race alone they were perceived as lacking an entitlement to the enjoyment of a fundamental human right, namely, the right to equal pay for equal work. The conclusion that they were discriminated against solely because of their race and Aboriginality cannot be avoided. The wealth of documentation now available to the Commission permits of no other sensible conclusion.

Because the complainants were Aboriginal and for no other reason they were thereby to be treated differently and in an inferior manner and were thereby seen to be not entitled to recognition for services rendered in the same way as the non-Aborigine even though those services were of same value to the employer. This policy or political mindset was no doubt rooted in a pervading paternalism towards Aborigines who were seen as being in need of protection. The environment in which they worked was seen as being an "institutional social welfare and training setting" even though a moments reflection upon the quality of the services rendered by any one of the complainants ought to have destroyed the official attitude. The policy was persevered in on the basis that the "training" would better fit the Aboriginal person for assimilation into the wider community. Regrettably the talents and skills and the labour contributed by many Aborigines, including the complainants, in the course of their employment, was either lost sight of or ignored and the justification for this attitude, certainly after 1975, was to be sourced in the plea that the Government would be financially disadvantaged if proper wages had to be paid and in the assertion that the payment of proper wages to some would cause unemployment to others.

This meant that for years competent persons, like the complainants, were lost in a sea of anonymity which was an essential feature of Aboriginal affairs in the State and their individual skills and talents and their basic human rights, in this case, the right to a proper wage, were wholly obscured by heavy handed officialdom and a political policy which was severely inconsistent with the thrust of the legislation aimed at the destruction of racial discrimination.

Commissioner Carter then turned to the issue of whether the complainants needed to demonstrate an intention to discriminate on the part of the respondent in order to prove a breach of the RDA.

The intention to discriminate is now obvious. It may have been argued that such a policy intention was an honourable one and well meaning but the fact remains that it was intentionally discriminatory and was deliberately persisted in for what were seen to be justifiable reasons.

For the respondent it was argued that for discrimination to be unlawful by reason of the RDA it was necessary to establish an intention on the part of the respondent to discriminate (see Fullagar J in Chief General Manager Department of Health v Arumugan [1988] VicRp 42; (1987) EOC 92-195). If that is the law then I am prepared to find in this case that the respondent intentionally, deliberately and knowingly discriminated against the complainants in their employment after 1975 on account of their race by paying them less than that to which they were entitled to be paid.

There is a preponderance of authority in favour of the proposition that an intention to discriminate is not an element in establishing the statutory unlawfulness defined by the RDA. Reddrop v Boehringer Ingelheim Pty Ltd (1984) EOC 92-031, R v Birmingham City Council; Ex Parte Equal Opportunity Commission [1989] 2 WLR 520, Haines v Leves (1987) EOC 92-192 at 76,842, Jamal v Secretary of Department of Health (1988) EOC 92-234 at 77,196, Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 168 at 176 and Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359-360.

The matter has more recently been considered by the Federal Court of Australia in Human Rights and Equal Opportunity Commission v Mount Isa Mines Limited and Ors (1993) 46 FCR 301. The test has been propounded by Lockhart J (at 325) in terms which questions the validity of a dichotomy which refers to an objective or causative test on the one hand and to a subjective test on the other, as if they were mutually exclusive concepts.

I am satisfied that in this case the sole reason or cause of the discrimination was the fact of the complainants' Aboriginality and that there was a clear relationship of cause and effect between the race of the complainants and the fact that they were denied the enjoyment or exercise, on an equal footing, of their human rights to just and favourable conditions of work, to equal pay for equal work and to just and favourable remuneration. The "motive, intention or purpose" (see Lockhart J at 326) of the respondent is to be found in a political policy which was entrenched and pursued during the period relevant to these complaints.

Accordingly I find that the complainants were discriminated against in the course of their employment with the respondent in that they were paid less than that to which they were entitled and such discriminatory conduct was based solely upon their Aboriginality.

The respondent argued that the employment of Aborigines on Palm Island was lawful in that it complied with the Aborigines Act 1971 and the Aborigines Regulations 1972 which governed Reserves. The core of the argument was apparently this: the Aboriginal residents of Palm Island were all treated alike, under the regime imposed by the 1971 Act and subsequent regulations. Any differential treatment by the Departmental employer, as compared to non-Aboriginal workers, was not driven by discrimination on the basis of race but arose from the separate legislative regime which applied to Palm Island and other Reserves. Commissioner Carter dismissed this argument on the basis that the Crown in Queensland was quite simply bound by express provision to comply with the Commonwealth Racial Discrimination Act.

However, the critical submission of the respondent is that in the period of 1975-1984, the relevant period for the purposes of this complaint, the manner in which the Department dealt with Aborigines on reserves was lawful, that is, it was in accordance with valid Queensland legislation with which the Director and the whole range of Departmental officers were required to comply and in fact did comply. More particularly in relation to the employment of Aborigines on reserves there was no lawful requirement that those Aborigines so employed were required to be paid other than what was determined by the Director. In this context Regulation 68 of the 1972 Regulations was important. I will set it out:

"Subject to these regulations, an Aborigine who is employed, other than on a reserve, shall be employed in accordance with his qualifications and experience under the provisions of an award or industrial agreement applicable to the industry in which he is employed provided where the industry in which an Aborigine is employed is not covered by an award or industrial agreement he shall be entitled to receive wages not less in value than the basic wage as determined from time to time."

Therefore whilst employers of Aboriginal labour, other than on a reserve, were required as a matter of law to be paid in accordance with the relevant award, there was no such legal requirement imposed on the Department in its employment of Aborigines on reserves. ...

It was submitted that there was no nexus between the acts complained of by the complainants and their Aboriginality. Rather, in respect of the Palm Island Aboriginal community and in its conduct by the Director, it was submitted that all of the residents were treated equally. In respect of their employment a variety of considerations were relevant such as the nature of the community, the amount and type of work that had to be done, the size of the available labour pool and the amount of money appropriated by Parliament for the Department's administration of Palm Island and the other reserves. So that, if Aborigines, in particular the complainants, were paid less than what the Department would have had to pay to non-Aboriginal persons for services of the same value, that was not because of any discriminatory conduct on the part of the respondent but because of the nature of the Palm Island Aboriginal Community and the Queensland legislative scheme which controlled and supported it.

This submission has to be evaluated in the light of the 1975 Commonwealth laws, in particular the RDA. By s. 6 of the RDA the Crown in right of the State of Queensland was bound. It can be no part of this Inquiry to purport to decide such questions which might be thought to emerge by reason of s. 109 of the Commonwealth Constitution.

Given that the RDA in express terms bound the Crown in the right of the State of Queensland, it likewise required compliance on the part of the Crown instrumentalities and officers such as the Director of Aboriginal and Islander Advancement and the Manager of the Palm Island Aboriginal Community. That being so, the real question that emerges is essentially a question of fact and that is the question whether in the employment of the complainants the Minister or the Director or the Palm Island Manager breached the requirements of ss. 9(1) and 15(1)(b) of the RDA. Clearly prior to 1975 such persons may have been able with justification to refer to the Queensland legislative scheme as enabling and empowering them to allow their relations with Palm Island Aborigines to be governed and regulated by the 1971 Act and 1972 Regulations. However from 1975 such persons were likewise bound to comply with Commonwealth laws such as the RDA and Queensland Discriminatory Laws Act.

This Inquiry under the RDA is simply one designed to determine as a matter of fact whether in the period 1975-1984 there was compliance with it or whether in the employment of the complainants by the respondent there was conduct on part of the respondent which was discriminatory by reference of matters of race and therefore in breach of the RDA. That is the basis upon which the complaints were made and it is those complaints into which the Commission is bound to inquire.

If it is correct that there was in place at the relevant time the relationship of employer and employee for the purposes of s. 15 of the RDA then, as pointed out above, there is ample evidence that as employees of the respondent on Palm Island the complainants were the victims of discrimination and that occurred only because they were Aborigines.

Furthermore the fact of discrimination was not only recognised at official or Government level but justification for it was strongly asserted and any attempt to have the Government retreat from its entrenched position was vigorously opposed and resisted and only with reluctance finally accepted. One can easily identify in the bulk of Government documentation the fact that there had developed by 1984 an air of resignation on the part of the Government that the terms of employment for Aboriginal persons in the Palm Island community and elsewhere had to be fundamentally revised and, as the Minister's letter of 12 July 1995 pointed out, the "earlier wrongs" had to be rectified and set right.

In my view there was a clear and direct nexus between the acts complained of and the Aboriginality of the complainants.

This discriminatory conduct, if it was unlawful, was not saved by reliance upon the Queensland legislation but was on the contrary prohibited by the provisions of the RDA. ...

The respondent also argued, unsuccessfully, that if there was any discrimination, it was saved from unlawfulness on the basis that the 1971 Act and 1972 Regulations together constituted a "special measure". The term special measure is found in the International Convention on the Elimination of All Forms of Racial Discrimination and is incorporated into the RDA at s. 8. In rejecting this submission, Commissioner Carter pointed to inconsistent Commonwealth legislation which specifically outlawed discrimination in employment in Queensland. He also relied on passages from the leading High Court decision on special measures, which require advancement towards equal enjoyment of human rights and place particular emphasis on the wishes of the beneficiaries.

... The argument of the respondent therefore has to proceed on the basis that measures relating to employment of Aborigines on reserves are comprehended by the general provisions relating to reserves and to the control and regulation of the reserves and of their residents by the Director. However the Queensland Discriminatory Laws Act makes specific reference to the terms and conditions governing the employment of Aborigines whether on a reserve or elsewhere. It will be recalled that s. 11 provides:

"11. A person shall not employ an Aboriginal or Islander in Queensland (whether on a Reserve or elsewhere) unless the terms and conditions of employment are not less favourable than they would be required to be if the employee was not an Aboriginal or Islander, and, in particular, the employee shall be entitled to be paid wages at a rate not less than the rate at which wages would be payable to him if he were not an Aboriginal or Islander".

If therefore there were any specific legislative provisions in Queensland prior to 1975 dealing with the rates of pay applicable to the employment of an Aboriginal on a reserve (which appears not to be the case) then that would clearly have been inconsistent with the express provisions of the Commonwealth law which it would seem was designed to remove any discriminatory conduct, so far as the payment of wages was concerned, in the employment of an Aborigine by the Director or by any other person. The title of the Queensland Discriminatory Laws Act states that it was enacted for the purpose of preventing discrimination against, inter alia, Aboriginal people. It would follow from that that there was no possibility after 1975 of any Queensland law on the subject which could validly operate insofar as it related to the matters dealt with by s. 11 of the Queensland Discriminatory Laws Act.

It seems to me therefore that the very existence of this particular Commonwealth law must have some bearing on whether the 1971 Act and the 1972 Regulations in their totality can be regarded for the purposes of the RDA as a special measure.

But in my view there are more formidable objections to the submission of the respondent on this point. In Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 133 Brennan J said:

"The sole purpose of a special measure is to secure such "adequate advancement" or "adequate development and protection" of the benefited class as is necessary to ensure "equal enjoyment or exercise of human rights and fundamental freedoms."

Some if not all of the "human rights and fundamental freedoms" which the Convention recognises and seeks to protect are to be found in Art. 5 of the Convention. Article 5(e) includes the rights "to free choice of employment, to just and favourable conditions of work, to equal pay for equal work, to just and favourable remuneration."

Therefore if the 1971 Act and 1972 Regulations are to be regarded as a "special measure" for the purposes of Art. 1(4) of the Convention they must have as their "sole purpose" the adequate advancement of Palm Island Aborigines in order to ensure that they enjoyed equally and exercised equally the human right to just and favourable conditions of work, the right to equal pay for equal work and the right to just and favourable remuneration.

It is plain from all of the material in this Inquiry that rather than facilitating an Aboriginal person's enjoyment and exercise of these human rights, the 1971 Act and 1972 Regulations were administered in a way which expressly denied to Aborigines, including the complainants, the enjoyment and exercise of the stated rights. The complaints of the complainants expressly allege that whilst engaged in a working relationship with the Department administering these very Queensland laws they suffered racial discrimination but it was not discrimination which ensured for them the enjoyment and exercise of the relevant rights; rather the administration of the Queensland laws effectively denied to them the enjoyment and exercise of the relevant human rights. By definition such is not a "special measure" of the type envisaged by Art. 1(4) of the Convention and s. 8(1) of the RDA.

The thrust of the respondent's argument is that the Queensland laws were designed to protect and assist Aborigines in matters of health and medical services and of law and order by the establishment of Aboriginal Councils and that the other provisions were designed to further the development, assimilation, integration, education, training and the preservation of Aborigines. I will leave aside the question whether the 1972 Regulations validly reflect the regulation making power referred to in s. 56(3) of the 1971 Act. It is more important to focus on the concept of "advancement" referred to Art. 1(4). Brennan J in Gerhardy v Brown at page 135 said this:

"A special measure must have the sole purpose of securing the advancement, but what is "advancement"? To some extent, that is a matter of opinion formed with reference to the circumstances in which the measure is intended to operate. "Advancement" is not necessarily what the person who takes the measure regards as a benefit for the beneficiaries. The purpose of securing advancement for a racial group is not established by showing that the branch of Government or the person who takes the measure does so for the purpose of conferring what it or he regards as a benefit for the group if the group does not seek or wish to have the benefit. The wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement. The dignity of the beneficiaries is impaired and they are not advanced by having an unwanted material benefit foisted on them."

One can safely assume that any of the complainants would now rightly and strongly reject the notion that the administration of the 1971 Acts and 1972 Regulations on Palm Island, particularly in relation to matters of employment and wages, were for their benefit or in accordance with their wishes. On the contrary they might well regard the administration of the Queensland laws as part and parcel of the implementation process of a government policy which was intensely paternalistic, the practical effect of which was to demean them and to lower their self respect rather than to ensure their enjoyment of and the exercise of their human rights to, inter alia, "equal pay for equal work".

In my view the submission that the particular Queensland legislative provisions constitute a special measure for the purposes of s. 8(1) of the RDA has to be rejected.

It follows that the conduct of the respondent complained of was discriminatory. These complainants were denied equal pay for equal work for one reason alone -- each was an Aborigine. The conduct of the respondent in the relevant period was unlawful by reason of ss. 9(1) and 15(1)(b) of the RDA and cannot be saved on the basis that it constituted a special measure in terms of s. 8(1). ...

Commissioner Carter declared that Queensland had engaged in unlawful conduct under the RDA and should pay damages by way of compensation. In calculating compensation for both financial loss and personal hurt, he took the rather unusual step of ordering that the same sum be paid to each of the six successful complainants.

... I have already referred to the difficulty which Mr Kidd experienced in attempting to assess the details of each complainants financial loss. There are obvious difficulties in the making of a valid assessment which can be regarded as precise and accurate. The lack of records and the faulty recollections of details by the complainants are only two of these. In light of such problems there is a serious risk that any attempt at precision will be flawed and may create a result which is unfair. Therefore it seems to me to be essential that any error in the assessment has be very much on the side of caution. I have determined therefore that I will allow a sum in each case for past monetary loss. But it seems to me that the personal hurt and stress which each has encountered should be dealt with differently.

Whilst I recognise that the skills and talents of each complainant was different and that had each been paid the equivalent of an award wage the entitlement of each complainant would also have been different, the fact is that one can recognise in the past experience of each complainant on Palm Island a certain commonality. They were all treated alike; they lived as part of the same community; they together bore the personal anguish which was the unfortunate consequences of the discrimination which occurred because of their Aboriginality. Therefore it seems to me to be appropriate that the compensation to be awarded to each now after several years of waiting should be the same.

In my view it would be unrealistic to attempt now to decide what precise amount was lost by each complainant. Rather the facts and circumstances of the case seem to require that there be no distinction made in monetary terms between the various complainants.

I declare that the respondents should pay to each complainant other than Jean Sibley and Florence Coutts the sum of $7,000.00 each. ...

Finally the Commissioner also declared that the State of Queensland should make a public statement of regret to the complainants.

It seems entirely appropriate and consistent with true recompense that the respondent should acknowledge publicly and to each complainant its regret that each complainant as a member of the Palm Island Aboriginal Community was denied his or her human right to the enjoyment of just and favourable work conditions, to equal pay for equal work and to just and favourable remuneration. The form in which this should be done can be decided by the Commission in consultation with the parties if needs be.

However it should at least explicitly contain statements to the following effect:

* that the Queensland Government acknowledge that between 1975 and 1984 it was in breach of the RDA by unlawfully discriminating against each of the complainants by failing to provide them just and favourable conditions of work, equal pay for equal work and a just and favourable remuneration;

* that it acknowledge that such discrimination occurred by reason of the Aboriginality of each complainant; and

* that the Queensland Government publicly express its regret for the personal hurt suffered by each of the complainants as a result of this unlawful discrimination.

This acknowledgment should be published once and given reasonable prominence in a newspaper circulated throughout the State of Queensland.