The Elephant in the Drawing Room: Slaveryand the ‘Stolen Wages’ debate
In December 2006 the Senate Standing Committee on Legal and Constitutional Affairs produced its report into Indigenous stolen wages: Unfinished business: Indigenous stolen wages (‘the Stolen Wages report’).1 In numerous statements made to the Standing Committee Indigenous people described the conditions in which they had lived and worked in terms evoking the notion of slavery.2 According to Pamela Meredith:
The wages of my grandfather’s brother (my grand–uncle) James Meredith continued to be withheld for years after he was taken from Cherbourg mission and adopted to a white family… the government collected a life-times wages belonging to this gentleman – he was practically a slave for them! His wages should rightfully be returned and re-paid to his estate.3
Valerie Linow stated:
What if your wages got stolen? Honestly, wouldn’t you like to have your wages back? Honestly. I think it should be owed to the ones who were slave labour. We got up and worked from dawn to dusk… We lost everything – family, everything. You cannot go stealing our lousy little sixpence. We have got to have money back. You have got to give something back after all this country did to the Aboriginal people. You cannot keep stealing off us.4
The Stolen Wages report, however, did not discuss the relevance of slavery to the debate about Indigenous stolen wages. Indeed, its terms of reference, by referring to ‘paid Aboriginal labour’, arguably precluded it.5 Nor, as far as I am aware, was the word used in public debate preceding the Inquiry, although the National Indigenous Times has recently produced a feature on the issue.6 The notion of ‘slavery’ is, indeed, an elephant in the drawing-room of civilised debate.
This article will argue that the conditions under which many Aboriginal people lived and worked until at least the 1950s, if not later, satisfy the legal definition of ‘slavery’ existing under contemporaneous Australian and international law.7 These conditions were commonly regarded as ‘slavery’ by those with direct knowledge. This included particularly Aboriginal people themselves, but also journalists, unionists, anti-slavery activists, and those responsible for overseeing and implementing government policies.
It is true that Australia was not a ‘slave state’ in the manner of the American South; nor did all Aboriginal people during the relevant period live under conditions of ‘slavery’. Nevertheless, employers exercised a high degree of control over ‘their’ Aboriginal workers who were, in some cases, bought and sold as chattels, particularly where they ‘went with’ the property upon sale. There were restrictions on their freedom of choice and freedom of movement irrespective of any lack of consent. Indigenous people were subjected to threats and force. There was a fear of violence, subjection to cruel treatment and abuse, control of sexuality and forced labour. The fact that the law actually authorised many of the pastoralists’ actions, and that it could in general be relied on to turn a blind eye to formal illegalities, meant that employers exercised a form of ‘legal coercion’ over their workers in a manner consistent with the legal interpretation of slavery.
This article considers the legal definition of ‘slavery’ as it has been interpreted in the relevant case law. It will note that – as with other recent slavery prosecutions – whether a condition of slavery existed must be considered by reference to legal standards existing at the time the alleged acts occurred. Historical social and political understandings of the term ‘slavery’ are relevant to this question. The article will therefore consider contemporaneous applications of the term ‘slavery’ to Aboriginal labour, and also refer to the debate amongst historians on this issue over the past 30 years.8 The article will then consider Aboriginal experiences in the Northern Territory from colonisation until the abolition of discriminatory employment laws as a case study on the legal and social conditions of Aboriginal workers. While it is clear that not all Aboriginal labourers in the Northern Territory worked in conditions amounting to legal slavery, it will be argued that at least some did. The concluding section will briefly consider some of the implications of this contention for future legal and political debate.
Indigenous evidence referred to in the Stolen Wages report and elsewhere9 suggests that Indigenous people have no difficulty in thinking of their past treatment by European employers as slavery. On the other hand for many non–Indigenous people – including no doubt judges and lawyers – the notion of slavery in an Australian context is confronting. Since Indigenous people seeking justice over the stolen wages issue have to convince influential non-Indigenous people of the merits of their cause, it is worth raising a threshold issue: why have a debate about slavery at all?
I A threshold issue: why have a debate about slavery?
The term ‘slavery’ has ‘long held strongly emotive and moral associations’.10 In the popular imagination it is often associated with the African slave trade. The potential of the popular understanding of slavery to obscure debate about its legal definition has some parallels with the treatment of the term ‘genocide’, which Bain Attwood argues has come to be, ‘above all else, a marker or register of excess’.11 The same might be said of a debate about the term ‘slavery’. Like ‘genocide’, ‘slavery’ is dangerous and easily misused.12 It can be argued that introducing the spectre of slavery into political debate on Indigenous issues is, at the least, politically unwise. Debate about the term ‘genocide’ is a lesson for Aboriginal people and their supporters in the way in which an emotive, and popularly misunderstood, term can be used to fuel a backlash against Aboriginal rights.13 Some conservative commentators - and perhaps some ‘ordinary Australians’ - now apparently believe that Aboriginal people wish to draw a parallel between their treatment and that of the Jews and other minority groups in the Holocaust.14 To start a slavery debate might equally lead to misleading and politically counter-productive comparisons between the position of Aboriginal workers and that of African slaves.
However, an important difference between the ‘slavery’ and ‘genocide’ questions is that the concept of genocide was not part of contemporaneous discussion concerning the Government’s forcible removal of Indigenous children. As a result, the introduction of the term ‘genocide’ following the Bringing Them Home report15 created a sense of grievance among some white Australians, particularly those who administered the policies. Leslie Marchant, a former officer in the Department of Native Affairs in Western Australia, has written that he considers himself and his fellow officers to have been retrospectively criminalised, ‘branded as agents of some sort of genocide and with stealing children, with as little chance of defending themselves as Senator McCarthy’s victims, who were condemned and robbed of their reputations in his crusade’.
In contrast to the term ‘genocide’, ‘slavery’ was regularly used by both sides in contemporaneous discussion. It was used in popular debate until explicit legal discrimination began to disappear from statutes and awards following In the matter of the Conciliation and Arbitration Act 1904–1965, and of the Cattle Station (Northern Territory) Award 1951 in 1966.16 Amongst historians, it has been used for well over 20 years in the slightly different context of debate about whether Aboriginal labour was ‘free’ or ‘unfree’.17 Its reintroduction to legal debate is not a form of retrospective criminalisation, and should come as no surprise.
Dirk Moses has argued that Australia shares with Germany ‘the basic problem of national myths of origin and the consequent perpetrator trauma and process of political humanisation it inaugurates’.18 Australia certainly needs to become a ‘self critical community’19 capable of conducting ‘open debate about the meaning of the past [which] provides … orientation in the present and a guide for the future.’20 In Germany, according to Moses, this debate has led over several decades to Germany addressing its ‘cultural pathologies of the ‘authoritarian personality’ and the underdeveloped, weak ego that sought compensation in strong leadership and the collective security of group identity’, as well as its ‘debilitating melancholia’ caused by the ‘inability to mourn’.21 While Moses does not argue that Aboriginal experience is the moral or functional equivalent of that of European Jewry, he considers that debate about the term ‘genocide’ has become, for non-Aboriginal Australians, ‘the functional equivalent of the uniqueness of the Holocaust in Germany: the blemish that soils the myth of origin by preventing it from doing the magic work of social integration and healing’.22 As a result he argues that Australia should face - and not shy away from - the term ‘genocide’ in debate about its past.
Moses’ argument is equally applicable to ‘slavery’. Without such debates, Australia will continue to ‘view the past through the eyes of the victors and retrospectively justify their actions and morality’.23 This will be to the detriment of any prospect of lasting resolution of this least recognised of the great running sores of Aboriginal-European relations in Australia.
Of course, the term ‘slavery’ may be misused in popular debate. However, if it is legally and morally apt, the possibility that the argument may be distorted seems a less than convincing reason to refrain from making the argument at all. To frame the stolen wages debate as a question solely concerned with missing money is to lose sight of the bigger picture; one surprisingly well captured by the word ‘slavery’. To use milder language because of the fear of a conservative backlash, or in the hope that it will improve the possibility of a favourable outcome to stolen wages litigation is to lose sight of the symbolic, and to relinquish any possibility of full recognition, acknowledgement or even apology. It would allow the ‘great Australian silence’ surrounding Aboriginal dispossession to prevail once more; a silence pilloried by anthropologists and historians since the 1960s,24 and once thought to have disappeared from debate.
The Stolen Wages report provides evidence - if evidence were needed - of a continuing Aboriginal sense of grievance over the stolen wages issue and a sense that white Australia’s response to the issue has been mean-spirited and peremptory.25 The evidence suggests that Indigenous people are not exclusively, or even primarily, interested in money. What they desire is recognition of their past treatment: this recognition includes the use of appropriate and fitting language.26 As noted above, Indigenous people refer to their past treatment as ‘slavery’. The following discussion will argue that such a description is equally appropriate from the point of view of European law.