FEDERAL COURT OF AUSTRALIA Baird v State of Queensland [2005] FCA 495 DISCRIMINATION LAW – RACIAL DISCRIMINATION – employment – distinction "based on" race – whether grants by the government to church-run missions were "acts" under the Racial Discrimination Act 1975 – whether wages paid less than awards was unlawful racial discrimination Racial Discrimination Act 1975 (Cth) ss 9, 15 Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 3, 46PO Federal Court of Australia Act 1976 (Cth) s 51A Aborigines Act 1971 (Qld) ss 7, 8, 10, 15, 31, 56 Community Services (Aborigines) Act 1984 (Qld) ss 23, 24, 83, 84 The Aboriginals Preservation and Protection Act, 1939 to 1946 (Qld) The Torres Strait Islanders Acts, 1939 to 1946 (Qld) Aborigines Regulations 1972rr 22, 68 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 considered Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561 considered Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 considered AMP v Chaplin (1978) 18 ALR 385 considered Victoria v Macedonian Teachers' Association of Victoria Inc (1999) 91 FCR 47 followed Macedonian Teachers' Association of Victoria Inc v Human Rights & Equal Opportunity Commission (1998) 91 FCR 8 referred to The New Shorter Oxford Dictionary: On Historical Principles, Clarandon Press, 1993 International Convention on the Elimination of All Forms of Discrimination. Opened for signature 21 December 1965. Art 5. (entered into force 2 January 1969) JAMES STANLEY BAIRD, MARIE CREEK, FRANK TAYLEY, HENRY WALKER, HENRY DEERAL, EDGAR IVAN GIBSON, ANITA KAREN GORDON, ELLA WOIBO v STATE OF QUEENSLAND Q 91 OF 2003 DOWSETT J 19 AUGUST 2005 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 91 OF 2003 BETWEEN: JAMES STANLEY BAIRD FIRST APPLICANT MARIE CREEK SECOND APPLICANT FRANK TAYLEY THIRD APPLICANT HENRY WALKER FOURTH APPLICANT HENRY DEERAL FIFTH APPLICANT EDGAR IVAN GIBSON SIXTH APPLICANT ANITA KAREN GORDON SEVENTH APPLICANT ELLA WOIBO EIGHTH APPLICANT AND: STATE OF QUEENSLAND RESPONDENT JUDGE: DOWSETT J DATE: 19 AUGUST 2005 PLACE: BRISBANE REASONS FOR JUDGMENT INTRODUCTION 1 All of the applicants have, at some time, resided on one of two missions located in Far North Queensland and known as "Hope Vale" and "Wujal Wujal". I will say something about the history of both missions at a later stage. Persons professing Christian beliefs in the Lutheran tradition have long been associated with both missions. Lutheran Church of Australia Inc was, at one stage, a party to these proceedings. However the applicants have discontinued their claims against that corporation. There is no evidence as to the date of its incorporation. The involvement of "Lutherans" in the missions probably predated it. I will hereafter refer to the Lutheran Church organization in Queensland and to those of its members who were concerned in the administration of the missions as the "Church". 2 These proceedings are concerned with events which took place on the missions between 1975 and 1986. Each of the applicants claims that during that period, he or she was employed on one or other of the missions by the respondent (the "Government"). Each alleges that during that period, he or she was paid at a level which was below that being paid to other persons employed by the Government to perform similar work and/or below relevant levels established by applicable industrial awards. The applicants are all indigenous Australians. They claim that such wage differentiation constituted discrimination based on race, contrary to the provisions of the Racial Discrimination Act 1975 (Cth) ("RDA"). Pursuant to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("HRA"), they seek declaratory relief, an apology and damages. RDA commenced on 31 October 1975 and, for this reason, the applicants' claims dates from that time. The evidence indicates that award wages were paid from 1 January 1987. However the applicants' claims to lost wages are limited to the period from 31 October 1975 to 30 November 1976. 3 Clearly, the Government was involved in the affairs of the missions throughout the relevant period. Such involvement was through the agency of relevant government departments and officers. Arrangements for government business have changed over the years. I will use the term "Department" to identify the government department responsible, for the time being, for the administration of legislation concerning the missions. The term "Director" refers to the permanent head of the Department. The term "Minister" refers to the Minister of the Crown having, for the time being, responsibility for the Department. Statutory framework for management of reserves 4 The missions were conducted on lands which were reserves for the purposes of the Aborigines Act 1971 (Qld) (the "1971 Act"). From on or about 31 May 1984, such lands were trust areas for the purposes of the Community Services (Aborigines) Act 1984 (Qld) (the "1984 Act") which repealed and replaced the 1971 Act. Pursuant to s 15 of the 1971 Act: '15. Reserves and managers (1) Every reserve shall be conducted and regulated in accordance with this Act. (2) The Governor in Council – (a) may appoint a manager of a reserve; (b) may place the reserve under the management of a religious organization. (3) A manager of a reserve or, in the case of a reserve placed under the management of a religious organization, the person in charge of that organization within the reserve shall, without further or other appointment be an assistant district officer in relation to the reserve. A person who is an assistant district officer by virtue of this subsection shall be subject in the administration of this Act to the Minister and the Director but to no other person concerned in the administration of this Act.' 5 The section, in effect, created two categories of reserve, namely: · those managed by managers appointed pursuant to s 15; and · those managed by religious organizations, which are hereinafter referred to as "missions". 6 The "Minister" was, of course, the Minister of the Crown responsible for the administration of the Act. The "Director" was the person appointed as Director of Aboriginal and Island Affairs, including any person temporarily discharging the functions of that office. The person so appointed constituted a corporation sole known as the "Corporation of the Director of Aboriginal and Island Affairs". Various functions under the 1971 Act were to be performed by "district officers", which term included assistant district officers. Section 7(2)(c) obliged the Director, at least once in each year, to inspect every mission conducted by a church, religious body or secular organization for the benefit of indigenous persons. Pursuant to subs 10(4), a district officer was to exercise such powers and perform such functions and duties as were conferred on him or her by the Act or as directed by the Director. He or she was, subject to the Director, responsible for the administration of the Act within his or her district. 7 Pursuant to s 56 of the 1971 Act the Governor-in-Council was authorized to make regulations concerning (inter alia)'… the employment of and serving of apprenticeships by Aborigines …'. A rider to the section provided that: 'Where any regulation made or deemed to have been made under and for the purposes of this Act with respect to the employment of or the serving of apprenticeships by Aborigines is inconsistent in any respect with the provision of The Industrial Conciliation and Arbitration Acts 1961 to 1964 or of an Award made under those Acts by The Industrial Conciliation and Arbitration Commission, or continued in force by those Acts, the regulations shall, to the extent of the inconsistency, prevail.' 8 In the Aborigines Regulations 1972 (Qld) (the "1972 regulations"), reg 68 provided: 'Subject to these Regulations, an Aborigine who is employed, other than on a Reserve, shall be employed in accordance with his qualifications skill and experience under the provisions of the Award or Industrial Agreement applicable to the Industry within which he is employed, provided that 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.' 9 Until 1979, the Government considered that reg 68 implicitly authorized employment of indigenous persons on reserves at wages less than those payable pursuant to relevant awards. However, on 29 May 1979, Matthews J, then the Supreme Court Judge serving as President of the Industrial Court, held that rights pursuant to an award were derived from the relevant statute under which it was made, and that such rights could not be displaced by regulation other than by "plain language" demonstrating such an intention. His Honour found that the regulation did not demonstrate any such clear intention and therefore did not displace the entitlement of an indigenous person employed on a reserve to receive wages payable pursuant to an applicable award. I will return to this decision ("Murgha's case") at a later stage. 10 Section 31 of the 1971 Act provided for the continuation of councils established on reserves pursuant to previous legislation. It also authorized the Governor-in-Council to create new councils. Such councils had the functions, duties and powers prescribed by regulations made pursuant to s 56. Regulation 22 of the 1972 regulations provided that councils should have power (including the power to make by-laws) in relation to: '(a) The provision, construction, maintenance, management, and control of roads, bridges, viaducts, culverts, baths and bathing places; the undertaking and execution of work in connection therewith; the regulation of the user thereof. (b) Health, sanitation, cleansing, scavenging and drainage, the removal, suppression and abatement of nuisances, public conveniences, water conservation, agricultural drainage, village planning, subdivision of land, the usage and occupation of land, buildings, the usage and occupation of buildings, protection from fire, boundaries and fences, disposal of the dead, the destruction of weeds and animals; (c) Works, matters and things that, in its opinion, are necessary or conducive to the good rule and government of the Reserve or Community for which the Council is established or to the well-being of its inhabitants.' 11 The structure of the 1984 Act differed substantially from its predecessor. Councils established under the 1971 Act were to continue in existence until the first elections held pursuant to the 1984 Act. The new councils which were then elected were to have powers similar to those previously conferred by the 1972 regulations. The term "council" is hereinafter used to identify councils elected under either Act. I have assumed that references to "councils" in the evidence are references to such councils. It is not entirely clear whether there were, at all times, separate councils for each of the two missions. However the matter is of no present significance. 12 Sections 83 and 84 of the 1984 Act provided: '83. Assistance to Aboriginal Councils (1) Each of them, the Minister and the Under Secretary is authorized to provide to any Aboriginal Council, from the resources of the Department, such assistance by way of – (a) making available the services of officers of the Department; or (b) financial aid, as in his opinion is necessary to enable the Council to adequately discharge and exercise its functions, duties and powers. (2) A person who was assigned to perform work by way of assistance to an Aboriginal Council shall be taken to be discharging a function under this Act while he is engaged in that assignment. 84. Use of Churches etc for provision of assistance Subject to subsection (2), the authority conferred by section 83 on the Minister and the Under Secretary includes authority – (a) to make arrangements with any church or religious organization that works for the welfare of Aborigines with respect to the provision of assistance under that section; and (b) to provide assistance under that section to the church or organization with whom the arrangements are made for application in accordance with the arrangements. (2) Where the provision of assistance referred to in subsection (1) is for a particular area, the authority specified by that subsection shall not be exercised except with the approval of the Aboriginal Council established for that area first had and obtained.' 13 The "Under Secretary" was the permanent head of the relevant department. Pursuant to s 8, the corporation sole constituted pursuant to the 1971 Act continued in existence under the name and style of "The Corporation of the Under Secretary for Community Services". Section 23 provided that for three years after commencement of the 1984 Act each council was to have an executive officer. In some circumstances, the period could be extended or truncated. Such person was to be an officer of the Department. Section 24 provided: 'Role of Executive Officer During the period for which an Aboriginal Council has an Executive Officer as prescribed, in the discharge and exercise by the council of its functions and powers of local government – (a) personnel and property of the Department shall not be utilized for the council's purposes except with the Executive Officer's approval first had and obtained; (b) expenditure shall not be incurred or approved against moneys appropriated by Parliament and allocated to the use or benefit of the area for which the council is established except with the Executive Officer's approval first had and obtained; and (c) a bill of exchange, promissory note or acknowledgement of indebtedness purporting to be drawn on behalf of the council shall not be met from funds standing to the credit of the council or from accretions to such funds, if the funds represent moneys appropriated by Parliament and allocated to the use or benefit of the area for which the council is established unless the bill, note or acknowledgement bears the signature of the Executive Officer as a drawer.' 14 Under the 1971 Act, the relationship between a council on a reserve and a church organization managing that reserve pursuant to s 15 was unclear. After the commencement of the 1984 Act, the primary responsibility for administration of a reserve was clearly vested in the council. During a transitional period of three years, more or less, there was to be a degree of supervision exercised by the Department through the executive officer. Inevitably, this must have meant that the involvement of any church organization was substantially reduced. I should say, however, that it has not been suggested that the change of regime is in any way relevant for present purposes. History of the missions 15 In the 1880s the government of the colony of Queensland established "temporary reserves for Aborigines" at Cape Bedford (Hope Vale) and Bloomfield River (Wujal Wujal). Hope Vale mission 16 In 1885, the colonial government asked the Church to take over the Cape Bedford reserve[1]. It agreed to do so for a period of five years, and the colonial government agreed to pay Ł550 for buildings and Ł200 to Ł300 for the first year's rations for indigenous residents. The mission was established in January 1886 at Elim, on the north shore of Cape Bedford, eighteen miles north of Cooktown. A group within the Church (the Neuendettelsau Mission Society) actually ran the mission. In December 1887 it occupied a further area lying about four miles to the southeast of Elim, known as Hope Valley[2]. 17 In the 'Report of the Northern Protector of Aboriginals for 1899'[3], which was presented to both Houses of the Queensland Parliament, it was reported that Reverend Wilhelm Poland and Reverend Georg H Schwarz had, by notice in the Government Gazette issued on 4 November 1899, been appointed Superintendents of the Cape Bedford reserve under the 'Aboriginals Act'. The report stated (at p 6): 'With a view to putting the amount of the annual Government subsidy to these Missions on a rational basis – i.e., making the grant bear an equable ratio with the number of aboriginals taught, fed, clothed, or otherwise relieved – it has been deemed advisable that the missionaries should regularly forward a monthly return of aboriginal attendance and Government relied. Each return gives the daily number of blacks (permanent and casual) obtaining relief, the nature of the relief (flour, meat, tobacco, & e.), and any remarks that it may be considered advisable to make.' 18 In 1899 there were about 40 permanent indigenous residents living at Cape Bedford, and between 17 and 20 visiting. The '[p]resent subsidy per month' was 8 pounds, 6 shillings and 8 pence[4]. This seems to have been the total monthly subsidy, rather than a per capita figure. The two pastors worked at establishing farm areas, fishing and buildings, as well as their pastoral work. They translated Sunday lessons, Bible stories and a number of hymns into the local dialect. In 1892, an indigenous resident was baptized, the first such occurrence on the Cape Bedford reserve[5]. After some time, most of the residents were baptized and became practising Christians. The report describes farming activity carried out by Mr Schwarz; fishing, using a cutter provided by the Home Secretary and net provided by the government; indigenous people catching turtles from canoes in dangerous conditions; the construction of buildings for the community; and the provision of school classes to children. 19 In 1900 the establishment at Elim was closed down. All buildings and residents were transferred to Hope Valley. In a Survey of the Hope Vale mission from its establishment until 1977, entitled 'From Despair to Hope'[6] (the "Survey"), daily life on the mission at the turn of the previous century was described as follows: '... [T]he bell would ring at 6.00 a.m., followed by a community devotion at 6.30 a.m. After breakfast the various work groups would disperse. At noon every one returned for lunch, only to put in another four hours of work in the afternoon. [Mr Shwarz] accompanied the aborigines and worked at their side. After the evening meal he conducted a community devotion. The aborigines enjoyed a sing-song in their homes for the next hour. At 9.00 p.m. every one went to rest. Whilst the men were out working, Mrs. Schwarz conducted the school. The first hour was spent in teaching Bible history and the catechism, the remaining time in reading, writing, arithmetic, and singing. On Sundays the morning service was held at 10.00, Biblical instruction at 2.00 p.m., and an hour of singing at 8.00 p.m.' 20 Shortly after the turn of the century the mission was moved again, this time to a place called Spring Hill. At the outbreak of war in 1939, the community was sent to Woorabinda, west of Rockhampton, in central Queensland. Mr Schwarz, being German, was placed in an internment camp near Brisbane. The indigenous people from Cape Bedford remained at Woorabinda until 1949 when, following negotiations between the State of Queensland and the Lutheran Church, they returned to Hope Vale. 21 A letter dated 8 August 1950 from the Deputy Director to the Department of Health and Home Affairs[7] referred to the mission's capacity as being 250 people and recommended that an annual grant of Ł500 be made to the Church. The writer also observed that '…the ration scale is adequate…'. In a summary of a report from the Director for the year ending 30 June 1950[8], it was said that 71 indigenous people were living at "Hope Valley". The following statement appears under the heading "Administration of Acts" (referring to The Aboriginals Preservation and Protection Act, 1939 to 1946 (Qld) and The Torres Strait Islanders Acts, 1939 to 1946) (Qld): 'As is implied in the provisions of both Acts, the policy is to provide protection and guidance to the Department's wards with the ultimate intention of giving to islanders and aboriginals that measure of self-control which their circumstances and ability demand. Despite spasmodic contentions to the contrary, these coloured people are not yet capable of completely managing their own affairs. Even with the protective provisions of the Acts operating, continuous vigilance is required against exploitation of islanders and aboriginals.' 22 In that report the Superintendent of the Hope Vale mission, Rev V Wenke is reported as saying: 'According to our plan, we will have provided each family with a suitable piece of land around their houses (2 1/2 by 2 chains) where they can satisfy their particular ambitions and grow fruit and foodstuffs for themselves and also have amply playground for their children. There will not be crammed conditions. … So far we have not killed any cattle for food purposes. There has been such an opportunity of getting pigs that the natives were absolutely satisfied to live on pork. We have warned them, however, to go steady hunting for them, as we do not want our supplies to fall away too soon. The natives are taming some pigs and have had 15 of them in the yards in December. … The natives must work. So far they have received Ł300 in wages. We must awaken in them initiative for self preservation. Each native family has, as already stated, its plot of land where they can be made to feel their responsibilities for the welfare of the family. With good land for agricultural purposes, we should later be able to do well. Our aim is to make the station self-supporting. All our work is done for the welfare of the natives.' 23 It seems that the idea of paid work on the reserve pre-dated the events which are directly relevant in these proceedings. 24 The 1951 report[9] recorded that there were 247 indigenous people at "Hope Valley". The main work, apart from the building programme, was clearing land and the production of food. In 'Gangurru'[10], it was said (at p 136) that indigenous people worked for the mission during the week and were allowed to till their own land 'after knock off time and on Saturdays'. In the annual report to the Director dated 30 June 1954, it was reported that the following areas were under crops: Mission Natives 50 acres peanuts 70 acres peanuts 15 acres maize 1 acre maize 20 acres cotton 20 acres cotton 3 acres manioch 1 acre manioch 3 acres sweet potatoes 4 acres sweet potatoes 4 acres pineapples 3 acres pineapples 3 acres bananas 12 acres bananas 3 acres paw paws 8 acres paw paws 1 acre onions 5 acres miscellaneous fruits 1 acre onions 5 acres miscellaneous fruits 2 acres vegetables 104 acres 124 acres 25 According to Gangurru (at p 153) the Board noted, at a meeting on 8 August 1956 that: 'It is becoming increasingly evident that the practice of handing out rations can only have a detrimental effect and does not help toward the up-lifting of the natives. The long range policy should be to assist the natives to a greater measure of economic independence.' 26 However this proposed change was not effected quickly. The minutes of a Board meeting held on 3 November 1964 noted: 'CHANGE FROM RATION TO PAY SYSTEM: A change from the ration to the pay system was proposed following the Secretary's visit (in October). To the food payments it was suggested to add the equivalent of ˝ lb. of meat per adult person per day; pocket money to be increased by 4/- per week per working man and 2/- for working girls. Smokos are to remain the responsibility of the Mission. It was resolved, Pastor Prenzler-N.Hass that this system be adopted as that it be implemented as soon as practical. According to the above system the weekly payment scale for a family with four children would be as follows: - total Husband 14/2 food 8/9 meat 16/6 pocket money Ł1.19.5 Wife 8/10 food 8/9 meat 17.7 Children 10/4 food Child endowment Ł2.5.0 2.15.4 (TOTAL) Ł5.12.4' 27 At p 154 the author observed that '[w]ith the introduction of a cash economy came the opportunity to purchase material possessions. But rather slowly for the original wages were very low. However men were able to earn larger salaries on other employment, stockmen on cattle stations or on the silica sands mining.' Demand for station hands was high. However the mission '…began to make conditions', and men were only allowed to work on the stations for three months at a time (at p 156). 28 From 1967 to 1977, the superintendent of the mission (also known as "Protector of Aborigines") was a Lutheran pastor. Work was supervised by a manager, assisted by a council of five. There were three or four indigenous policeman. The council, a Church representative, the manager, members of staff and "gangers" constituted an administration committee. Indigenous workers were employed: · as stockmen, caring for 1000 head of cattle; · in land clearing; · in timber getting; · in the manufacture of curios; · in "civil" works (such as digging trenches, building houses); · as nursing aides; · as teachers' aides; running the kindergarten; and · in the mission's post office, bank, switchboard and office. 29 A further 20 men were employed at the Cape Flattery silica mine. This mine is on the Cape Bedford reserve but is not part of the mission. Private enterprise was encouraged amongst the mission residents, mainly by allocating quarter acre allotments for farming, craftwork and running poultry. In July 1986, by deed of grant in trust, 110 000 hectares at Cape Bedford, including the mission, were granted to the Hope Vale Aboriginal Council. Wujal Wujal mission 30 In the 1880s the Lutheran Church of South Australia established a mission at Bloomfield River. It was abandoned in 1902 or 1903. A grant of land, originally made in 1892, was rescinded in 1915. In a letter dated 22 May 1957, the Director of Native Affairs advised the Under Secretary of the Department of Health and Home Affairs that the living conditions of indigenous people at the "Reserve on Bloomfield River" were "unsatisfactory". Rations were being provided to the value of Ł2,500, but '… there is no supervision over such issues in that [word illegible] is very inaccessible and regular visits by the nearest Protector of Aboriginals at Cooktown are impossible.' It was said that the Church was prepared to take over control and management of the reserve, with the intention of ultimately transferring the inhabitants to Hope Vale. The Director recommended that the grant of Ł2,500 be continued, along with an initial grant of Ł5,000. In a later letter to the Under Secretary, the Director advised that the land at Bloomfield River was not then a reserve and recommended that its status be regularized. The area was eventually set aside as an Aboriginal Reserve. Other correspondence shows that an initial grant of Ł2,500 was made, with Ł2,500 to be provided per year. From the Director's annual report dated June 1958, it appears that the initial grant was spent on a vehicle, a prefabricated house, improvements on existing houses and hygiene. Evidence concerning employment of INDIGENOUS residents on the missions 31 Both missions were, from the beginning, supported by government subventions. Much of the applicants' case focuses on the nature of such payments in the period between 1975 and 1986. Evidence concerning this matter came primarily from witnesses associated with either the Church or the Government. Some of the indigenous residents also said a little concerning the subject. Numerous Cabinet minutes and associated documents are in evidence. Witnesses associated with the Church Reinhard Jakob Mayer 32 Pastor Mayer is a retired pastor of the Church. He was President of the Lutheran Church of Australia Queensland District from 1974 until 1986. During that period he oversaw the Church's work in Queensland. He visited the missions three times a year, for at least a week at a time. During his time as President, he attended about 75 per cent of the meetings of the Hope Vale Mission Board (the "Board"). It seems that for much of the relevant period, the Board administered both missions. Pastor Mayer placed special emphasis on the Church's work at Hope Vale and Wujal Wujal. The Church did not make, and did not seek to make, a profit out of its presence on the missions. Its aims were: · to sustain and strengthen the faith of existing members of the Church; · to bring the Gospel to new areas; and · to meet the physical needs of people in "whatever circumstances" as resources permitted. 33 In establishing the Hope Vale mission the Church acted on a belief that the indigenous residents '…had an equal right to a place in the Kingdom of God both here on earth and forever'. A secondary purpose was to assist in the '…betterment of life for aboriginal people.' Hope Vale was '…to become a new and essentially Christian community in which basic needs such as food, shelter, education and health care would be provided and in which the people could find basis protection from the worst aspects of "white" influence such as alcohol etc.' 34 The missions were always short of funds. Government grants were spent on housing, water supply, education and health facilities. Wage levels for indigenous workers were '…determined by limitation of funding and not as a matter of policy.' All moneys received from the Government, identified as being for wages, were used for that purpose. The Church did not have the financial capacity to supplement such amounts. Some indigenous residents were employed as Church staff. They were paid at the same rates as non-indigenous Church staff. The differences between the wages of such staff and those paid to indigenous workers reflected qualifications and responsibility rather than race. 35 It was the Church, and not the Government, which paid indigenous workers. However the Department identified the amounts to be paid and funded such payments. The witness agreed that the Government did not direct or control day-to-day operations on the missions but said that all activities were performed on its behalf. Pastor Mayer also said that the Church could have increased wage levels, had it wished to do so, but would have had to reduce the number of persons employed. Conversely, it could have lowered wages and increased the number employed. 36 Pastor Mayer described the budgeting process as follows: 'I understand that each year we submitted an outline of all the areas in which funding was needed and that included the management team, if I can call it that, plus the needs of the varying departments - the store and so on, the farm - as well as then the Aboriginal wage component and that was submitted and the Department then provided the – well, the relevant funding for that. It wasn't just one lump sum and then we decided where it was to go. In other words, we didn't put it all into the store or all into the farm management, and the wage earners got nothing. It was all clearly outlined as to where these amounts were to go and to my knowledge, as I have stated, they went – they were paid out into those various areas.' 37 He was asked the following questions and answered: 'To put it simply, you're speaking about a process where each year the church would do estimates of what the income would be for the two communities in the next financial year. They would also do estimates of what the expenditure would be, then they would see what the amount of the shortfall was and that shortfall would be sought from the Department as the government subsidy? --- Yes, I believe that to be the case. And was it the case that the church did not always get the amount of subsidy that it calculated it needed? --- Yes, again I understand this to be the case, that the needs were always greater than what was provided.' 38 Certain documents which are exhibited to the affidavit of Mr D E F Sutton filed on 10 September 2004 demonstrate this budget process. Amongst those documents is a letter dated 1 June 1984 from the treasurer of the Hope Vale mission to the Director (part of ex DEFS 3) as follows: 'Attached hereto please find budget figures for Hopevale and Wujal Wujal. These have been prepared by the Hopevale Administration and duly agreed to by the respective Councils. It should be noted that some time in the future the Councils will be placed in the position of paying all salaries and this would involve the payment of award rates. It would not be possible to meet the extra costs within existing budget arrangements. Please advise should you require any further information.' 39 Attached thereto were budget estimates for the 1984-1985 years. They showed an anticipated expenditure for Hope Vale of $1,024,020.00, an income of $194,700.00 and a required Government subsidy of $829,320.00. Anticipated outgoings in connection with 'Aboriginal Wages' were estimated at $580,680.00. For Wujal Wujal, estimated expenditure was $598,308.00, income, $72,000.00 and the required subsidy, $318,808.00. 40 Pastor Mayer also referred to ex DEFS 12 to Mr Sutton's affidavit, a list of indigenous employees in the various areas of operation and their wage rates. The list shows varying rates of pay. Of these varying rates, Pastor Mayer said: 'I understood this to be an internal situation which was worked out between the manager of each community together with the – at the time the elected council on each community, which at that time was an advisory body, and I understand that they worked that out on the local level, as to what differentiation would apply and would be fair, and I assume on the basis of the nature of the work involved and the relative responsibility of each task. That's the only way I can understand the difference in the rates. This did not come before me in detail as head of the church.' 41 In the course of cross-examination Pastor Mayer was asked the following questions and replied: 'In any event, your recollection is that the determination of how much the weekly wage for each individual worker was to be was worked out at local level between the manager and the representatives of the Aboriginal community? --- Yes, as – I mean, my clear understanding is that the wage let's say subsidy via the Department was a lump sum amount and it was up to the local team, let's say manager and local council, to work out the relative rates in terms of individuals. My concern was only over the overall average which we have to let's say accept under the terms of the funding available and then depend on that local group to apportion it as they saw as fairly as possible. And they also determined the number of persons who would be employed on each community, didn't they? --- Yes, I understand that to be the case. In terms of what was let's say the effect running of the community, how many people would be needed as part of the workforce in order that that community, let's say community maintenance and development, could best be achieved.' David Paul Spanagel 42 Mr Spanagel is now Coordinator of the Far North Queensland Lutheran Mission, formerly the Hope Vale Mission Board (the "Board"). He was the manager of the Hope Vale mission from 4 February 1983 until the end of 1986. In that role, Mr Spanagel was responsible to the executive officer of the Board. The Department appointed a representative to the Board. The indigenous residents elected a council, presumably pursuant to the provisions of the 1971 and 1984 Acts. Mr Spanagel considered that he was answerable to the council as well as to the Board. He understood that he had authority to overrule council decisions but never did so. 43 Mr Spanagel oversaw all activities on the mission. He was assisted in this task by the "staff", mostly non-indigenous workers, including an assistant manager, administrative staff, store manager, mechanic, hygiene officer, and nurses. The assistant manager and the store manager were indigenous. They were paid at the same rate as non-indigenous staff, which rate was set by the Church for the whole of Australia. Staff members were provided with free accommodation. Apart from staff, there were 47 people in the community workforce, all indigenous. They were, in effect, appointed by the council, although Mr Spanagel claimed that he held the actual power to appoint and dismiss. The council also appointed foremen. 44 Members of the community workforce were not paid at the same rates as were staff members. According to the witnesses, the executive officer of the Board advised him as to the relevant pay rates. Mr Spanagel understood that such rates were set by the Government. In addition to wages, indigenous people at Hope Vale enjoyed reduced house rental and received some free medical and dental treatment and free education. Employment opportunities outside of the community were limited by distance and lack of skills. Some indigenous residents worked at the Cape Flattery silica mine, and some did seasonal work on cattle stations. 45 In par 8 of his affidavit, Mr Spanagel said that the executive officer of the Board, Mr Pietsch, was 'the conduit between the Department … and the [Church]', and that he was a Departmental employee. One might infer from this that Mr Pietsch was employed by the Department in his capacity as executive officer. That was not the case. His employment by the Department was unrelated to his involvement with the Board. Such involvement was in is capacity as a lay member of the Church. 46 Mr Spanagel said that, on occasions, the Church considered withdrawing from the mission because of difficulties experienced in obtaining suitable staff to administer it. The Government and residents persuaded it to remain. The Church, in administering the mission, was entirely dependent upon annual grants from the Department. In that administration the Church was '…instructed by the [Government], via the Department, in almost all areas of the administration of Hope Vale and Wujal Wujal.' The Department 'pulled the major strings', and the Government had the '…final say on policy issues…'. In relation to employment Mr Spanagel said: 'The [Government], through the Department, set the number of Aboriginal workers and the rate of pay that was to apply to them, and … notified the [Church] of that number of Aboriginal workers and the rates of pay that was to apply to them.' 47 The Board and the Church, could not afford to pay the indigenous workers any more than was received by way of grants. The government was '…fully aware of the limited financial resources of the [Church].' 48 Much of this evidence was clearly opinion rather than fact. In this regard, Mr Spanagel's evidence was somewhat argumentative. Further, Mr Spanagel said that dealings with government 'were by and large out of my sphere'. 49 Mr Spanagel agreed in cross-examination that he may have been mistaken in his belief that all non-staff employees were paid at the same rate. He said this in light of a document which is part of the amended agreed bundle, vol 1. It is identified as "p 2368". The witness also referred to a number of documents in ex DEFS 16 to Mr Sutton's affidavit. He said that they were typical of the advices received from the Government as to increases in wage rates. 50 Mr Spanagel gave evidence concerning the employment of some of the applicants. It is not necessary to consider that evidence at this stage. Auburn Keith Muller 51 Mr Muller qualified as an accountant in 1949 and was honorary treasurer of the Lutheran Church of Australia Queensland District from 1975 until 1985. Between 1982 and 1985 he was employed full-time as treasurer of the Board. He remained a member of the Board until 1999. As treasurer, he visited Hope Vale and Wujal Wujal every three months, for one week at a time, in order to monitor the expenses of the missions. In consultation with the Government, Mr Muller prepared annual budgets for the Board. He would "work up" the budget with the deputy director of the Department, Tom Murphy, and the executive officer of the Board. The budget was then presented to the Queensland Government for approval. Funding included separate allocations for administrative costs and wages for indigenous workers. In connection with preparation of the budget, the witness said that: '… [T]he Department set and notified me of the number of Aboriginal workers and the rate of pay for them for which it would provide funding. I incorporated the multiple of those two figures into the budget.' 52 The Department would, from time to time, also advise changes to pay rates for indigenous workers. The Board 'always paid the Aboriginal workers at the rate prescribed by the Department.' It submitted audited financial statements, accounting for moneys received from the Department. Neither the Church nor the Board could afford to pay additional wages to indigenous workers. 53 When Mr Muller commenced as treasurer, the indigenous workforce was at about the level used in calculating the Government grant. He felt that the amount included in the grant for administrative costs was insufficient for that purpose. He asked the council to agree that the workforce be reduced and that the moneys saved be spent in other areas. The council agreed to this. According to Mr Muller, the Government knew about, and consented, to the arrangement. 54 Mr Muller agreed that the Government did not control '… the engagement, dismissal, hours of employment or starting and ceasing times of the Aboriginal workers on Aboriginal missions conducted by the Church, at least in so far as that comment relates to Hope Vale and Wujal Wujal missions.' Nonetheless he asserted that the Government controlled the number of persons to be employed and the amounts that those persons were to be paid. As with some of the other witnesses, this appears to have been an opinion based on the fact that effectively, all moneys used to pay wages came from the Government grant, and that the amount of the grant was calculated by reference to specified rates and numbers of employees. The witness asserted that the Government supplied all equipment used by employees on the missions. This appears to be inconsistent with other evidence that the Church or associated persons donated equipment from time to time. However I accept that much equipment was purchased using moneys supplied by the Government. 55 In cross-examination, Mr Muller referred to certain documents which appear in ex DEFS 2 to the affidavit of Mr Sutton. They show that, in 1983, 1984 and 1985, the Director sought information as to the names and pay rates of employees on each mission. Mr Muller was unable to explain why the Director would be seeking such information if, in fact, the Government had prescribed the applicable rates. 56 As with Mr Spanagel's evidence, much of Mr Muller's evidence concerning government involvement in the missions was, to some extent, opinion rather than fact and, in that respect, was somewhat argumentative. Ivan Lester Roennfeldt 57 The witness is a retired pastor of the Church. He was, for 25 years, a member of the Hope Vale Mission Board and Chairman from 1962 to 1981. He visited the missions on numerous occasions. For one period of two months, he was the pastor at Hope Vale. He said that wages for indigenous workers were fixed by the Board, in consultation with the manager of each community. The manager was an employee of the Church. Wages varied from person to person and were based upon the nature of the work performed and the person's familial status, that is marital status and number of children. Jobs were allocated by the manager in consultation with the council. 58 The Board received financial support from the Government via annual grants but was not directed as to the manner in which the grants were to be spent. Some income was also received from the Church. However funds from that source were limited. The Government did not direct the Board as to the number of workers to be employed. However the Government requested information from time to time concerning that matter. In about 1980 the Government requested that the Church reassess the number of employees on each mission. As a result the workforce was reduced. Subsequently, the Government provided sufficient funds to enable the remaining employees to be paid the guaranteed minimum wage. Pastor Roennfeldt agreed that the amount paid to workers was inevitably determined by the amount received from the Government. 59 The Church also supported the missions by the donation of equipment. On occasions the Department gave financial or logistic assistance for special projects. The Government did not direct the Board as to how the communities should be administered. Witnesses associated with the Government Sir Llewellyn Edwards 60 Sir Llew Edwards was Deputy Premier and Treasurer of Queensland from 1978 until 1983. As Treasurer he received annual estimates of expenditure and receipts from the Department. These estimates included grants for 'church conducted Aboriginal communities' including Hope Vale and Wujal Wujal. Such estimates were used to develop the State budget. The Department received a lump sum allocation for its operations. Moneys were not earmarked for particular communities. However Cabinet would approve subsequent apportionments. The witness said that '[t]he churches were entitled to expend the grant moneys as they saw fit and to augment the grant moneys as they saw fit and were able.' Expenditure by the missions was not subject to government audit. Sir Llew understood that the missions conducted by church organizations were independent of the Government. He was not aware that the number of employees on each mission was set by the Government. He said, at pars 16 and 17 of his affidavit: '16. Prior to the introduction of funding for the guaranteed minimum wage in 1980 there were regular Cabinet decisions approving funding for increases in the rates of pay for aboriginal workers on State government-run communities and church conducted communities. … There was no maximum increase in the rates payable by the churches to Aboriginal workers on church conducted Aboriginal communities. If a governing body of a church felt that the church was able to pay a greater amount it was at all times free to do so. 17. Similarly, with the introduction of funding for the guaranteed minimum wage in 1980 the effect of the relevant Cabinet decision was to approve funding to the churches to cover the payment of the guaranteed minimum wage. The governing body of a church remained free if they desired, and felt able, to pay a higher rate.' 61 Sir Llew said that, '…knowing the way in which the government operates…' there would have been guidelines on how government funding was to be spent, and that any expenditure outside of those guidelines would be taken into account in the next budget. The Government would have expected that grants identified as being for wages would be so spent. Patrick James Killoran 62 Mr Killoran was Director of the Department from 1963 until 1986. He was familiar with the budgeting process and the process by which grants were made to churches conducting missions. The Department did not direct the Church as to the wages payable to indigenous workers at Hope Vale or Wujal Wujal, nor did it specify the number of workers to be employed. At all material times Mr Killoran represented the Department on the Hope Vale Mission Board, although he was usually represented by his deputy, Mr Thomas Murphy. He considered that his role was "advisory". Mr Killoran was too ill to attend for cross-examination at the trial. David Eugene Fraser Sutton 63 Mr Sutton held numerous administrative positions within the Department, including financial positions. He was absent on secondment from October 1984 until May 1986. He said that grants to religious organizations conducting missions reflected anticipated wages to be paid to indigenous persons during the financial year in question. The amount allowed for wages in each grant was calculated using a notional number of employees, all of whom were assumed to be adult and male. The number used was historical rather than actual. For some years, the figure of 115 employees was used for Hope Vale and Wujal Wujal. On one occasion the actual number was 104. Despite the assumption used in calculating the grant, some employees were female and some juniors. There was no requirement that the rates of wages paid on missions be approved by the Department. 64 In or about November 1979, church organizations were asked to review their respective workforces in anticipation of the introduction of the guaranteed minimum wage. The number of employees used in calculating the annual grants had, at that time, been in place for about ten years. As a result of the review, the Department suggested that the workforce at Hope Vale and Wujal Wujal should be 70. See ex DEFS 13 to Mr Sutton's affidavit. From that time onwards, a total workforce of 79 was used by the Department as the basis for calculating increases in grants. From 1980 to 1986 the actual workforce was further reduced, but the figure of 79 continued to be used for calculation of the wage component of each grant. 65 On 26 May 1980, Cabinet, approved, with effect from 1 April 1980, a general increase in wages. All adults were to receive the guaranteed minimum wage. Juniors were to receive two-thirds of the guaranteed minimum wage. From 1980 to 1986, the grants to each church organization included a component which reflected the previous year's wage component, increased to reflect increases in the guaranteed minimum wage over the preceding twelve month period. Any further increases in the guaranteed minimum wage during the year would be the subject of additional funding. Subsequently, funding was made available to facilitate the payment of award wages to reduced workforces at both Hope Vale and Wujal Wujal. This was fully implemented by 1 January 1987. 66 Mr Sutton said that the Government did not fix the number of indigenous workers to be employed on the missions, did not impose a maximum wage and did not fix the rates of pay. It did not compile or approve the annual budgets for the missions. The Board did not seek the Department's permission for any departure from budget figures. Sir Leo Arthur Hielscher 67 Sir Leo Hielscher was the Under Treasurer from 1974 until 31 March 1988. He did not have a detailed knowledge of the management of church-run indigenous communities but said that grants were by way of "subsidisation". Cabinet submissions and minutes 68 Privilege has been waived in connection with relevant Cabinet material. In most cases, Cabinet decisions were taken in reliance upon ministerial submissions with accompanying recommendations. The first relevant submission was by the Minister for Health and Home Affairs and dated 18 December 1959. It concerned annual grants to religious bodies conducting Aboriginal missions. Relevant passages are as follows: '1. The State Government, since the inception of Aboriginal Missions, has provided funds towards their maintenance, and for the development of Mission Reserves and buildings. In fact, the main source of income available to the Missions is the Government subsidy. … 3. Provision has been made in the Estimates for 1959/60 for the payment of increased Grants to religious organisations towards the cost of maintaining the Missions, totalling Ł181,500, as set out in Schedule "A" attached. … 6. When determining the amount of subsidy, my Department has borne in mind that the Commonwealth Government would be extending Aged, Invalid and Widows' Pensions to the Aboriginal population, and that payment of these pensions would commence during the current financial year. It was thought that these pensions would be paid from 1st July, or, at the latest, from the date in October when general pension increases were granted by the Commonwealth, but advice is now to hand that the payments will not commence until the 2nd February, 1960. 7. Church Missions will receive a substantial portion of the pension paid to Aboriginal residents of Missions to offset the cost of their maintenance, and the balance of the pension would be paid to the Aboriginal Pensioner. Church Missions have negotiated direct with the Commonwealth in this matter, and the apportionment of the pension payable to the Missions varies from Ł3/2/- per week, in the case of Yarrabah, to Ł4/-/- and Ł4/5/- per week in other cases. The total pension is Ł4/15/- per week. 8. It is estimated that the Missions will now receive in the vicinity of Ł28,500 from Commonwealth Social Services benefits during the current year, and that the individual natives will receive approximately Ł6,500. This rate would, of course, be much greater if the Commonwealth had paid the pensions from earlier date. Nevertheless, the Missions are receiving additional financial help, which will, to a large extent, offset the difference between the Grants sought by the Church Authorities and the amounts of the Grants proposed in Schedule "A".' 69 On 5 January 1961, the Minister recommended an extension of a loan made to the Church for the purposes of the Hope Vale mission. It recorded the history of the Church's involvement with the mission, noting that it had made 'a very tangible contribution to Aboriginal welfare during the period it has been engaged in Mission activities …'. The submission then described difficulties experienced by the mission in 1954. At that time, the annual grant was increased from Ł1,750 to Ł2,500. On 10 January 1961, the Minister recommended extension of the term of the loan. Cabinet agreed. 70 On 12 January 1962, the Minister recommended additional subsidies to the Church of England and Lutheran authorities for the 1961-1962 financial year. The recommendation applied to the Hope Vale mission. The submission was primarily concerned with a personal approach made by the Bishop of Carpentaria in connection with Church of England missions, but the following extract is presently relevant: '3. In supporting this claim for increased financial assistance, the Bishop submits the following argument:- (a) that the funds available to the Church Authorities for the maintenance of Church Missions should be not less on a population basis than the funds which the State makes available for the maintenance of Aboriginal Settlements; (b) that the Church, by contributing Ł63,000 for Aboriginal Missions during the financial year 1960/61, provided more financial assistance to the Missions than did the State; (c) that the Church of England Missions, which have a native population of 1,393 (equal to 34% of the population of State Settlements) do not receive adequate financial assistance compared with State Settlements as is shown by the following comparison:- Cost to the State Population Av Cost per person per annum Church of England Missions Ł48,241 1,393 Ł35 Government Settlements 366,577 4,132 89 4. While conceding that the cost per head to the State is much less on Church Missions than on State Settlements, it is not possible from any point of view to make a true comparison between the two. The Missions on the Cape York Peninsula cater in the main for Aboriginal people whose assimilation is in the long range category. On the other hand, State Settlements are catering to people who are on the verge of assimilation. Consequently it is not possible to accept the Church's contention that the needs of Aboriginals on the Missions are as great as those on the Settlements. 5. Our long range policy in respect of Missions controlled by Church Authorities is their eventual absorption into the Native Affairs administration. This already has been exemplified in the taking over from the Church of England of the Yarrabah Mission, which involved the State in payment of Ł15,000 as compensation to the Church for capital improvements, and further capital expenditure of Ł10,000 for 1960/61, and Ł16,000 for 1961/62, in addition to an annual maintenance cost of Ł60,000. 6. Although the Church has been relieved of the financial responsibility of Yarrabah, this relief evidently is not sufficient, and the Church now finds itself in the position of being unable to meet its responsibilities to the Missions in the Diocese of Carpentaria without additional State assistance. … 9. … The cost of subsidising Church Missions covering a population of 3,968 was Ł149,388 during 1960/61, which was equivalent to an annual cost of Ł38 per person. These figures indicate the considerable saving which accrues to the State by reason of the Churches accepting the responsibility for conducting Aboriginal Missions. 10. Another factor which must be taken into account in comparing the cost of Government Settlements and Church Missions is the fact that the majority of Missions are situated in isolated areas. Thus communications, freight and transport costs, including the maintenance of sea vessels absorb a much higher rate of expenditure than would be involved for similar services on the State Settlements. 11. The Church of England has asked for an additional Ł35,000 per annum in subsidy while an application has also been made by the Lutheran Church Authorities for a small increase of Ł1,500 in their annual subsidy to provide improved wage scales. Although it was not possible to make provision in my Department's Estimates for the total amount of Ł35,000 sought by the Anglican Missions, it was possible to provide an additional Ł20,000 which could be made available to the four (4) Church Missions in the Diocese of Carpentaria. 12. In explanation of the additional grants sought by the Lutheran Church Authorities, it has been reported to me by the Director of Native Affairs that the wages paid to native workers on the Hopevale Missions are so low that they have already come under criticism and the additional amount of Ł1,500 provided in my Department's Estimates for the current financial year will enable the majority of the present anomalies to be removed.' 71 This seems to have been the first suggestion that the amounts of subsidies to church organizations should bear some relationship to the amounts spent by the Government on reserves which it managed directly. This may explain why, in later submissions and minutes, there appears to have been an assumption that Cabinet was fixing wage rates for the missions although there was no apparent power to do so. It may also explain the perceptions of some of the Church witnesses concerning the Government's role in wage-fixing. 72 In a submission dated 24 April 1969, concerning a claim by the Australian Presbyterian Board of Missions for further funds, it was recorded that: '5. It has never been the view that the Government would meet the total cost of administering any Church sponsored group, the opinion being held that Churches, having the sole right of spiritual ministry, have some material responsibility and the State subsidy is a contribution only to assist the Church in the overall material costs.' … 7. There have been increasing pressures from within the Aboriginal communities for improved material benefits and facilities and the pattern with other Church groups has been to withdraw from the material field in favour of the Department. However, at this time the Department, whose personnel and administrative arrangements are still strained as a result of the earlier than expected transfer of three Church of England communities some two years ago, believes it inopportune to accept full material responsibility due particularly to the shortage of trained personnel available at Manager level.' 73 A submission dated 11 July 1969 dealt specifically with the Hope Vale mission which was then experiencing financial difficulties. The Minister reported and recommended as follows: '3. The Director considers that from superficial examination of the position and discussions with the Board's Chairman a lack of budgetary control and financial supervision has contributed to the situation, although it is recognised that considerable progress has been achieved commensurate with expenditure. A further item is the failure of Andersons Seed Company to meet purchases from Hope Vale of seed to the extent of some $2,500. 4. I have had discussions with Dr. Lohe, Head of the Lutheran Church in Australia, and Mission Board representatives, who have confirmed that they are in complete agreement that the Director or his nominated Officer join the Board in order to suitably assist in policy and financial determinations, as well as direction of the Community. 5. I am arranging for examination of the overall position and any justifiable special grant could be provided in the forthcoming Estimates. If necessary, I will report further to Cabinet.' In acquainting Cabinet with the situation for information purposes I feel it prudent that the Director, or his representatives, participate in Board deliberations, to ensure the financial position does not further deteriorate, ultimately resulting in unexpected calls on Government finances. RECOMMENDATION I recommend Cabinet approval of the proposed arrangement whereby the Director or his nominated representative, participate as a Board Member on the Hope Vale Mission Board of Administration.' 74 Cabinet adopted this recommendation. 75 A submission dated 21 November 1969, contained a further report on the position at Hope Vale as follows: 'However, the financial position is not reassuring, but a clear picture is expected to emerge shortly; an interim assessment of the accumulated deficit is approximately $40,000.' 76 Attached to the submission was a letter from the Aboriginal Overseas Mission Committee of the Presbyterian Church. It sought additional funding in the amount of $5,630 in order to increase both wage levels and the number of persons employed. The letter also recorded that increases in cattle wages and rations has been funded from cattle income. 77 A further aspect of this particular submission should be mentioned. It recorded dissatisfaction with the conduct of a Seventh Day Adventist pastor based at Kuranda and a 'civil rights' attitude said to be developing at the Aurukun and Mornington Island missions 'apparently condoned by mission staff'. The Minister recommended that: '(i) … (ii) Advice be given the Seventh Day Adventist President that a condition of payment of further subsidy is that the missionary worker at Kuranda conform to Departmental policies of assimilation, and that he encourage movement of former Mona Mona mission residents now in the Kuranda area to those centres where work opportunity presents, rather than a continuation of the present attitude; … (v) That the future of Aurukun and Mornington Island be further considered, if necessary, in the light of response by the Presbyterian Mission Board.' 78 It is not necessary to say any more about these matters. This is the first suggestion in the minutes of any attempt to require church organizations to comply with Government policy. It may be of marginal relevance to the applicants' case. 79 In a submission dated 16 February 1970, the Minister recognized that the Hope Vale Board was operating within its 'allocated amount' and that its deficit had been reduced. In a submission dated 1 April 1970, the Minister recommended that the Government liquidate that deficit. In a submission dated 18 March 1971, the Minister recommended the allocation of an amount of $17,500.00 to church communities to fund a $2.00 per week increase in wages as from 1 January 1971. The increase was to match an increase in wages for indigenous workers on State-controlled reserves. A further increase of $2.00 with effect from 1 July 1971 was approved in a submission dated 4 August, 1971, but funding was left for consideration in connection with the forthcoming budget. Funds were subsequently made available in the budget for the 1971/72 year. A submission dated 12 December 1972 recommended an additional grant for the 1971/72 year to accommodate the 'flow-on effect of wage increases'. In a submission dated 3 October 1973, the Minister reported: '… In preparing Estimates for 1973/74 the Department of Aboriginal and Island Affairs is seeking to pay Aboriginal/Islander workers engaged on the various Departmental and Church sponsored Communities a reasonable living wage.' 80 In a submission dated 22 October 1973, the Minister reported that an allowance had been made in grants to church sponsored communities which included 'the flow on effect of previously approved wage increases; …'. 81 In a submission dated 9 November 1973, the Minister informed Cabinet of certain developments on the Aurukun and Mornington Island missions which were administered by the Board of Ecumenical Mission and Relations of the Presbyterian Church. That Board had proposed quite substantial changes to the organization of the missions, involving incorporation of numerous entities to take over both ownership and management. This proposal seems to have been motivated by a desire to advance indigenous land ownership and management. It is not necessary to go into the matter in any more detail. The Minister recommended that the Church be told that its proposal was unacceptable and 'that they are expected to manage the Communities consistent with the policies and philosophies applying throughout the State to all other Reserves.' Cabinet resolved accordingly. The matter is relevant only in so far as it indicates an expectation on the part of Cabinet that church bodies administering missions would implement at least some aspects of Government policy. 82 Cabinet minutes from 8 January 1974 to 7 November 1978 record numerous decisions concerning employment of indigenous persons and increased rates of pay on reserves administered by both the Government and church organizations. In many cases the decisions speak of "approval" of proposed rates. However they also speak of "grants" to the various church organizations. Minutes of a meeting dated 8 January 1974 recorded 'approval … for the principle of 4 weeks recreational leave to apply to Aboriginal/Islander workers engaged on Church sponsored and State controlled Communities'. Such holiday pay was to include a 17˝% loading. It seems that additional funding was provided for this initiative. A Cabinet minute for a meeting dated 7 October 1974 approved increases for indigenous workers, including those on church missions. The accompanying submission contemplated additional funding to church organizations to meet such increased obligations. 83 Cabinet minutes for a meeting dated 10 June 1975 record approval for additional funding to church organizations administering missions. In the accompanying submission it was reported that a proposed increase for the Board of Ecumenical Mission and Relations of the Presbyterian Church reflected in part '… the expected deficit… ' which is said to be '… due to [the church organization] budgeting for Aboriginal wage increases considerably in excess of the approvals granted by Cabinet from time to time.'. 84 Although the Minister appears not to have been happy with this situation, further funding was provided. 85 A submission to Cabinet dated 24 November 1975 reported that: '1. Grants are made annually to religious organizations sponsoring Aboriginal Communities. Such grants are the main source of income available to these organizations. … 5. This financial year the sum of $1,324,274 has been provided for cash grants to Church sponsored Communities detailed in Schedule "A". This includes the flow-on effect of previously approved wage increases and wage increases approved as from the 1 July, 1975 and projected for the 1st January, 1976 plus an escalation of 30% to cover rising costs.' 86 "Attachment A" included a grant of $374,994.00 for the Hope Vale and Bloomfield River (Wujal Wujal) missions. There are numerous similar submissions and Cabinet minutes adopting them. 87 Before continuing this review of Cabinet minutes, I should refer to two letters, dated 2 May 1978 and 2 March 1979, from the Premier to the Prime Minister. In both letters the Premier suggested that the Commonwealth might like to make additional payments to the State to facilitate the payment of appropriate award wages to indigenous people on reserves. He also suggested that in the absence of such additional payments, the State would have to consider reducing employment levels in order to enable it to pay award wages. The Premier pointed out that such a course would lead to substantially increased demands for unemployment benefits, and that a better solution was to increase Commonwealth payments to the State. It seems, however, that the Commonwealth did not respond favourably to the suggestion. 88 On 12 June 1979 the Minister reported to Cabinet the decision of the President of the Industrial Court in the Murgha case which is referred to above. The decision was explained in some detail and the following options identified: '(i) Settle the matter and thus prevent a determination by the Cairns Magistrate who is bound to observe the ruling of the Court's President. This course is strongly favoured by Crown Solicitor. (ii) Contest the matter in Cairns on the facts, i.e. whether Murgha did in fact perform the work of a Builders Labourer in terms of the Industrial Award. However, in view of matters of stated fact conceded, by not being contested in the initial hearing, there will be little hope of success. The opposition at Cairns relied mainly on Solicitor General's advice, on jurisdiction. (iii) Amend the Regulations so that they clearly take the matter of wages on Reserves out of Industrial Law. The issue could then, however, be contested in civil proceedings by Murgha under one of two Commonwealth Acts - The Racial Discrimination Act or the Queensland Discriminatory Laws Act - this will establish direct public confrontation with the Commonwealth Government. (iv) State Legislation could be amended to clearly express conditions of residence on Reserves which a resident would be free to accept or reject but once having accepted them would be bound by them, i.e. rental subsidies, free Local Authority services and a living allowance. (v) A Supreme Court Writ stating that the Industrial Court's decision was wrong or that the Industrial Court had no jurisdiction. We would once again be looking ultimately at civil proceedings - a clash with Commonwealth Acts. (vi) Pay Award wages to those workers on Reserves who, by virtue of Justice Matthews' opinion, are entitled to benefit from an Industrial Award. Consequences of this could require significant Commonwealth assistance to meet the shortfall in available funds and prevent further unemployment on Reserves. To pay Award wages and avoid escalation in unemployment therefore requires negotiation and solution at Commonwealth/State political level. Senator Chaney has indicated his Government is examining the situation following talks which the Honourable the Deputy Premier [illegible] with him in Canberra recently. (vii) Establish an "across the Board" rate for workers equal to the [indecipherable] minimum wage" and establish it by regulation - we have been moving to this year by year as funds have become available. In December last, the Queensland minimum wage was $120-50, however recently Applied Ecology Pty. Ltd. (a Commonwealth wholly funded and sponsored body in the turtle and crocodile farming ventures) has determined a rate of $270-75 fortnightly as the "minimum" for all workers. (Copy of the relevant conditions is attached – "Appendix A").' 89 The Minister recommended that the Government: '1. Settle the matter – the amount in issue is $123.64 - Costs may then become an issue. 2. Pursue a political solution. Fundamentally, indefinite Commonwealth financial aid is essential to meet the shortfall which would be created were the State to commence paying all existing workers increased wages as prescribed by the various Awards. 3. As an alternative, reduce the number of workers (who would receive Unemployment Benefits) and establish a "guaranteed minimum rate" equal to the national figure viz: $135-00 approximately, with regulatory back up thus placing responsibility on the Commonwealth to move for further increases or payments based on their legislation. Additional annual costs would be approximately $4 million.' 90 Cabinet resolved: '1. That the matter of an action between the Australian Workers Union and the Director, Department of Aboriginal and Islanders Advancement be settled for the amount of $123.64. 2. That a political solution to the position of full Award wages to Aborigines employed on Reserves be pursued by the State with the Commonwealth. 3. That the Department of Aboriginal and Islanders Advancement undertake an immediate and comprehensive investigation and review of the existing funding arrangements in respect of communities, including – (a) wages paid in relation to hours worked, including productivity; (b) financial and other benefits in cash or kind for residents of Aboriginal communities in relation to benefits for Aborigines generally, e.g., subsidised housing, health, transport, rates and charges and other social benefits; (c) a complete review of the funding arrangements for communities having regard to the need to pay Award rates so that the total cost to the State remains at the existing level.' 91 Cabinet again considered the Murgha case on 26 May 1980. A political solution then appeared unlikely. It was thought that the Commonwealth may have assisted Mr Murgha and the relevant union in his proceedings. At the time, Commonwealth policy was to pay to relevant councils the estimated total of unemployment benefits payable to community residents for disbursement as wages. In the Minister's submission to Cabinet, he reported: '5. The fundamental issue of Award wages on Reserves is a matter which remains within the scope of talks involving my Department, the Public Service Board, the Australian Workers' Union and the State Industrial Commission. These talks are continuing and whilst an arrangement mutually suitable to the Crown and the Union has not yet been achieved, prospects of a satisfactory settlement cannot be discounted. Proposals are currently being studied by my Department in consultation with the AWU for a three-tier employment structure which in basic terms would be:- I. the present Public Service staff structure involving employees under the Public Service and various other Awards, including Tradesman, Clerks, Teachers, etc. II. a subordinate employment group of supervisor/trainer type personnel classified and paid in terms of what might be an exclusive Award applying to Aboriginal Communities. III. the remaining group for which no productive type employment in terms of an Award is available but to whom training in various fields would be offered at special Non-Award rates thus avoiding further increases in unemployment on Reserves which is already a matter of concern, in view of the resultant and evident adverse social symptoms, including increased alcoholism, juvenile delinquency and crime. Whether the scheme outlined in sub-paragraph III. above can be achieved by subordinate legislation (perhaps amendments to the Aborigines Regulations) is not yet clear but may nevertheless be necessary. It should be mentioned that a recent incident at Cherbourg indicates an attempt will be made by Aboriginal Legal Aid Solicitor, P. Richards, to bring the Award wage issue before the Courts again. 6. Having regard to all of the circumstances, it is not practicable to ensure continuity of services within the Reserve situations and contain expenditure within the allocation, in view of recent Court activities, the need to identify any wage structure with an acceptable Australian basis and as well prevent massive unemployment. Policy has, over the years, aimed at an upward movement in Community incomes to at least the Guaranteed Minimum Wage level which currently for North Queensland stands at $131 per week (adults). By contrast, examples of weekly basic Award levels are $152 for a builder's labourer and $183 for a truck driver. 7. A consequence of paragraph 4. above has been quite considerable under spending of funds provided the Department for payment of allowances on Reserves which, projected to the end of current financial year, will exceed $˝ million. In view of the investigations which have occurred, the consequent savings made and the direction of the Award wages issue, it now seems reasonable to appropriate the savings to a general increase in Community Allowances (Which currently average approximately $95 per week for adults) to the Guaranteed Minimum Wage, an average increase of some $36 per week for each adult.' 92 Subsequent paragraphs of the submission suggest that the Minister was addressing the position on both Government reserves and church missions. Cabinet resolved: 'That approval be given to a general increase in allowances paid to adult and junior workers on Aboriginal Reserves as follows: 1. Rates for all adult workers not in receipt of Award rates be increased to the Guaranteed Minimum Wage of $131.00 per week as from 1st April, 1980. 2. Rates for all junior workers not in receipt of Award rates be increased up to ⅔rd of the Guaranteed Minimum Wage as from 1st April, 1980, payment to be made from savings made in the Department of Aboriginal and Islanders Advancement's 1979/1980 budgetary allocation for Aboriginal wages.' 93 It seems likely that the decision concerned both Government reserves and church missions. 94 At a meeting on 21 October 1980, Cabinet considered a further submission from the Minister in which the various problems were again canvassed in light of the rejection by the Australian Workers' Union of a proposed agreement concerning indigenous wages. There was also a threat of action by indigenous persons working in a hospital at the Cherbourg reserve. That reserve was managed by the Government and in any event, the hospital was not located on the reserve. It was controlled by the South Burnett Hospital Board. Thus the matter had no direct relevance to the present case. Nonetheless the submission demonstrates that the Government was under increasing pressure concerning discriminatory wage levels. Subsequent minutes suggest that this pressure continued. The Government dealt with it by reducing the number of employees so that wage levels could be increased without the appropriation of additional funds. This policy was presumably reflected in the grants paid to church organizations. 95 On 9 August 1982 Cabinet again considered a submission from the Minister concerning this issue. In pars 3-7 he advised that: '3. The legality of paying a rate below the prescribed Award is extremely doubtful. The weight of legal opinion leans heavily against the validity of a provision in the Aborigines Regulations 1972 enabling Aborigines on Reserves to be paid less than the Award. 4. It will be recalled that in the Industrial Court, Brisbane in May 1979, the President of the Court, Mr. Justice Matthews, held that this Regulation did not invalidate the Awards and the rates conferred upon employees entitled to benefit from them. 5. Following this, it was approved that a test case initiated through the Courts against the Department of Aboriginal and Islanders Advancement for payment to an Aboriginal worker of the Award rate be settled out of Court for the disputed amount. 6. Since then the Department has survived what is legally an indefensible position. That this has been possible is probably due to a progressive upward movement in the Community wage rates, particularly the decision in May, 1980 to pay the Guaranteed Minimum Wage. 7. In civil jurisdiction, the way has also lain upon [sic] for an action based on Commonwealth legislation, the Aborigines and Torres Strait Islanders (Queenslander Discriminatory Laws) Act which binds Queensland and provides, in Section 11, that persons shall not employ an Aborigine on terms less favourable than those which would be applicable to a person who is not an Aborigine.' 96 The Minister recommended that there be a phased introduction of award rates over a period of twelve months. Cabinet resolved: 'That the introduction of Award rates to Aboriginal and Islander workers employed by the Department of Aboriginal and Islanders Advancement be phased in and that the resultant increased costs be met by the Department from its Budget allocation.' 97 There was no reference to employees other than employees of the Department. On 16 August 1982 Cabinet amended the decision of 9 August to provide that the initiative be funded: 'by off-sets by way of:- (a) Reduction in the workforce; (b) Increased charges for Community services; and (c) Subsidisation from within trading activities of Aboriginal Welfare Fund.' 98 In other words there was to be no increased funding to the Department to finance the increase in wages. 99 On 28 March 1983, $500,000.00 was made available by way of increased allocation to the Department to assist with increases in labour costs on reserves. No mention was made of payments to church organizations. On 17 January 1984 Cabinet approved the grant of $1,501,000.00 to religious bodies accepting responsibility for Aboriginal and Islander welfare. This was said to include provision for payment of the guaranteed minimum wage. 100 On 15 October 1984 Cabinet approved payment of $1,334,068.00 to religious bodies. In par 6 of the Minister's submission, he reported that: 'This financial year the sum of $1,334,068 has been provided for in the Consolidated Revenue expenditure to cover grants to Church sponsored Communities detailed in Attachment "A". This provides for payment of the guaranteed minimum wages to each Community's restructured workforce plus basic allocation calculated on a population ratio basis after other special needs have been allowed for.' 101 On 10 March 1985, Cabinet decided: 'That award wages be paid to Aboriginal workers on Communities, and that this be accommodated within present funding to the Department of Community Services, by adjustment to workforce numbers.' 102 It seems that the accompanying Minister's submission related only to indigenous workers employed by the Department of Community Services. See par 1. It set out the recent history of events concerning wages for indigenous workers. Clearly, the Minister considered that the Department was vulnerable to criticism and legal action concerning its failure to pay award rates. He identified the available options as either making additional funds available to permit the necessary increases or reducing indigenous employment for that purpose. As can be seen, Cabinet adopted the latter alternative. 103 On 29 April 1986, Cabinet considered a submission from the Minister in which he reported upon discussions with the Commonwealth. The relevant Federal Minister (Mr Holding) had indicated that any Commonwealth financial contribution towards award wages 'would depend on the removal of " Mickey Mouse" type jobs on Communities and a survey of the type mentioned in the Submission.' This statement implied that Mr Holding considered that many of the employment positions held by indigenous people on reserves did not involve bona fide duties. No suggestion to that effect has been made in these proceedings. 104 On 27 May 1986, Cabinet resolved: '1. That the Department of Community Services, in consultation with the Department of the Public Service Board, urgently identify the wage rates prescribed by appropriate industrial awards applicable to Aboriginal workers employed in essential work situations by the Department of Community Services, Yarrabah, and that such rates apply to those workers retrospectively if necessary, from 1st June, 1986. 2. That award rate wages be paid from first pay period in July to Aboriginal and Islander nursing aides at Departmental hospitals and Medical Aid Posts. 3. That in accordance with Cabinet Decision No 48290 of 10th March, 1986, the payment of Award wages on other Communities be phased in over a six month period on a Community by Community basis and be achieved by attritional reductions in the workforce to a base sufficient to enable these payments. 4. That where difficulties are experienced in achieving the above, the Commonwealth be called upon to fund the difference.' 105 In the Minister's submission various options were canvassed. The Yarrabah Community was in a special position. Reductions in employment levels there had been sufficient to permit payment of award wages. Thereafter, numerous Cabinet minutes recorded discussions concerning the implementation of the decision to phase in award wages, to be funded by reductions in employment levels. On 13 July 1987 it was decided that due to a shortage of funds, it would not be possible to backdate award payments to 1 June 1986. The only other minute which is of interest is a submission attached to a Cabinet minute of 3 June 1986 in which there is a very brief history of payments to indigenous people on reserves. The relevant parts are as follows: '3. Until 1965 when, following an extensive period of review, the first major change in Aboriginal welfare legislation occurred in Queensland since before the Second World War, the domestic economy of Aboriginal Reserves was based, not on wages earned, but principally on the issue of basic domestic necessities to each householder on a scale established by Regulations. Accordingly, items such as blankets, foodstuffs, clothing and farm produce were regularly issued with a small cash allowance for personal incidentals such as tobacco. 4. By 1965, however, this policy was no longer consistent with process of encouraging Aboriginal Reserve people to participate equally in regional society and development including the pursuit of employment outside Reserves and the earning of income and economic management of a household on other than a hand-out base. 5. Consequently all employable people were encouraged to undertake some form of work on these Reserves in exchange for a wage which, although not equated to Industrial Awards, guaranteed a job for everyone willing to work and dispensed with the practice of issuing rations and other household needs. Each Community task of course was oversupplied with labour, but the emphasis was strongly on social welfare and training rather than the identification of real-term job situations. 6. This practice has continued since. Many jobs remain unequated to realistic work needs. For instance, the total workforce of the Richmond Shire Council covering a population 1500 is 56. About 50% of these are roadworkers. By contrast, at Yarrabah, with a population of 1600, some 120 people are employed. Only 7 of these are employed on roadworks but 13 are employed as policemen. 7. Generally this situation became apparent to me some fifteen months ago and I raised it with the Federal Minister for Aboriginal Affairs, Clyde Holding. We appeared to share the belief in wage justice for real-term work but, as Mr. Holding put it, the Federal Government, like us, is not interested in funding "Mickey Mouse" jobs meaning of course jobs which are unnecessary and surplus to real need, e.g. 13 police at Yarrabah or 6 men on garbage collection. I would point out also that the Aboriginal Co-ordinating Council position in relation to a reduction to meaningful jobs has been and remains unclear. 8. A firm decision was therefore made to move towards Award wages and Mr. Holding indicated his willingness to make available Commonwealth funds in the event of any shortfall between funds available to the State and funds needed to pay essential jobs at Award rates. As I informed Cabinet last week, this commitment has not been honoured and indeed there are strong indications that it will not be.' 106 Out of fairness to Mr Holding I should say that it seems that he denied having made any commitment to the State. Evidence from Indigenous residents 107 None of the applicants said that he or she had been employed by the Government at any relevant time. Some said that they had been employed by the Church. One said that he had been employed by the council. Some said nothing concerning the subject. Findings of Fact 108 I am satisfied that both missions have always been dependent to a substantial extent upon funding from the Government. I am also satisfied that from a point in time prior to 1975, the level of such funding, to some extent, reflected the cost to the Government of managing reserves. Annual grants frequently, perhaps always, included amounts identified as being for wages payable to indigenous residents. It may have been competent for the Government, by regulation, to fix wage levels and levels of employment on missions, subject only to any limitation upon such power imposed by relevant industrial legislation. However it did not do so. As far as I can see, its decisions as to wage levels had no binding legal affect upon wage levels payable on church missions. I accept Mr Sutton's evidence that the calculation of the wage component of each grant was a notional exercise and that it was not expected that its expenditure would precisely reflect the method of calculation. In other words, the Church could vary wage rates and employment levels. Nonetheless it is probable that both the Government and the Church desired to keep as many people as possible in employment. 109 I accept that it was not financially feasible for the Church to pay substantially more "across the board" than the amount allowed as wages in each grant. The Government probably knew this. However it had no knowledge of how many people would be employed, how many hours per week they would work, or what they would do. Nonetheless, it seems that the Government was aware that wages were paid on the missions at rates below award rates and that there was pressure to remedy the position. At some stage, the Government seems to have accepted that churches would pay increased wages to indigenous employees on missions only to the extent that it increased their grants. 110 The above summary inevitably contains many generalizations about practices which developed and changed over time. Such practices may not always have been consistently adopted. If it were necessary that I identify the events leading to any particular payment to the Church or the state of knowledge of the Government at any particular time, I would not assume that any practice or state of mind necessarily applied throughout the whole of the period from 1975 to 1986, save to the extent that I have expressly so found. The applicants' claims 111 The applicants seek, pursuant to s 46PO of HRA, relief in connection with their claims of unlawful discrimination. That term is defined in s 3 of HRA to mean: '… any acts, omissions or practices that are unlawful under: (a) … (b) Part II or IIA of the Racial Discrimination Act 1975; or …' 112 The relevant sections of RDA are ss 9 and 15 which provide as follows: '9. Racial discrimination to be unlawful (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. (1A) … (2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any field of public life includes any right of a kind referred to in Article 5 of the Convention. (3) … (4) The succeeding provisions of this Part do not limit the generality of the section.' 15. Employment (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer: (a) … (b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or (c) … (2) It is unlawful for a person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment less favourably than other persons in the same circumstances by reason of the race, colour or national or ethnic origin of the person so seeking employment or of any relative or associate of that person. (3) … (4) … (5) …' 113 The applicants' claims depend substantially upon the allegation contained in par 4 of the statement of claim that: 'All of the applicants were employed by the [Government] on Church-run reserves for some or all of the period between 1975 and 1986.' 114 The allegation of employment by the Government is critical to the engagement of s 15 of RDA in these proceedings. However the allegation is also of importance in connection with s 9. That section applies to an act 'involving' a 'distinction, exclusion, restriction or preference' which is 'based on' race. In practice, each of the words "distinction", "exclusion", "restriction" and "preference" implies differential treatment of at least one person as compared to the treatment of at least one other. In this case the only differential treatment pleaded by the applicants is in connection with their alleged employment by the Government. They claim that the grants paid by the Government to the Church were insufficient to enable the Church to pay wages at higher levels. If employment by the Government is not established, there is no basis for alleging discrimination. Did the Government employ the applicants? 115 The relationship of employer and employee is primarily contractual. The applicants' outline of submissions identifies the following factual basis of the assertion that such a relationship existed between each of them and the Government: 'Persons employed on church-managed reserves (such as the applicants on Wujal Wujal and Hope Vale reserves) were employees of the [Government] in the same way as employees in State-run reserves were employees of the [Government]. (a) the [Government] administered "reserves" in Queensland; (b) "reserves" were conducted and regulated in accordance with … s 15(1) of the 1971 Act; (c) the Governor-in-Council could either (a) appoint a manager of a reserve, or (b) place a reserve under the management of a religious organisation; (d) such manager of a reserve or the person in charge of the religious organisation was subject to the Minister and Director but to no other person; (e) the [Government] placed Wujal Wujal and Hope Vale reserves under the management of a religious organisation, namely, the Lutheran Church. (f) after 31 May 1984 until the end of the relevant period the [Government] maintained control and responsibility for the employment of workers on the Wujal Wujal and Hope Vale reserves.' 116 Paragraphs (a), (b), (c) and (e) may be uncontroversial, but pars (d) and (f) are disputed. 117 There is no allegation that the Church or any of its employees was authorized, or apparently authorized, to employ staff on behalf of the Government or purported to do so. Further, none of the applicants seems to have believed that he or she was so employed. In support of the argument that they were employed by the Government, the applicants refer to the decisions of the High Court in Hollis v Vabu Pty Ltd (2001) 207 CLR 21, Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561 and Stevens v Brodribb Sawmilling Co Pty Ltd (1985-1986) 160 CLR 16, and to the decision of the Privy Council in AMP v Chaplin (1978) 18 ALR 385. However those cases all concern the distinction between contracts of service and contracts for services. The present question is not whether the applicants were employees or independent contractors. The question is whether they were employees of the Government. Clearly, the Church and/or the council made all decisions as to employment and allocation of duties. Given the powers conferred on councils by both the 1971 and 1984 Acts, one might have thought that the council was the probable employer. The more widely held view was that the Church was the employer. 118 The applicants assert, in their submissions, but not in the statement of claim, that the Church and/or one or other of its officers acted as agent or agents for the Government in employing indigenous people on the missions. The applicants point to the provision in s 15 that the assistant district officer on a mission was subject to the Minister and to the Director, 'but to no other person'. However that provision related only to such officer's involvement 'in the administration of this Act'. That expression may include some aspects of the administration of the mission, but not necessarily all. Further, the provision operated only to exclude the assistant district officer's responsibility to other persons 'concerned in the administration of this Act', not his or her responsibility to superior authority in the Church. I have been referred to no provision of the 1971 Act which contemplated employment by the Government of any indigenous resident of a reserve or mission. 119 It is submitted that indigenous persons employed on State-run reserves were employees of the Government. Cabinet minutes support that proposition. It is then submitted that, by analogy, persons performing similar functions on missions were also employed by the Government. I see no logic in that argument. It is advanced without any evidence as to the circumstances in which indigenous persons were employed on State-run reserves or as to their duties. No doubt the Government allowed and expected the Church to perform functions on the missions, which functions the Government would, itself, have performed in the absence of the Church. However that does not lead to the conclusion that persons apparently employed by the Church (or the council) were employed by the Government. Nothing in either Act or the 1972 regulations suggests that the Church or council was authorized to employ staff on behalf of the Government. In any event, as I have said, the applicants have not pleaded any such authority. 120 The evidence establishes that decisions as to employment were made by the Church and/or the council. Those bodies also allocated and supervised work. Wages were, in fact, regulated by the availability of funds, and almost all funds came from the Government. Nonetheless the Church and/or the council exercised discretion as to wage and employment levels. Although some of the Church witnesses, perhaps out of sympathy for the applicants, suggested that all activity on the missions was performed on behalf of the Government, it is clear that most Church personnel and the applicants considered that the Church or the council was the employer of indigenous workers other than Church staff. Whilst such opinions may not be probative, there is little evidence to the contrary. 121 The applicants make a number of other points. They submit (concerning the relationship between the Government and indigenous employees) that: 'There is no decision directly on point because the relationship that existed between the applicants and the [Government] was a unique relationship specifically created by statute.' 122 The proposition leads nowhere. Whilst the 1971 Act may have created some sort of relationship between the Government and the applicants, it did not purport to create a relationship of master and servant, the only relationship pleaded. 123 It is submitted that the Government exercised 'such a general direction and control over the manager of the [missions] as to his function as to make him the mere instrument of the [Government].' There is little or no evidence to support this assertion. As I have said, so far as concerns the employment of indigenous persons, no directions were given as to who was to be employed, how many people were to be employed, what employees should do or when they should do it. It is true that in the Cabinet minutes and correspondence, there are numerous references to levels of employment and wage levels. As I have explained, this seems to have been the result of the Government's parallel involvement with both its own reserves and Church-run missions, and an inclination towards parity in the treatment of both categories. Further, the references to wage and employment levels were, as they related to Church-run missions, simply in justification of the amounts of the grants. Church organizations remained at liberty to decide how many people should be employed and their wage rates. 124 Board minutes and correspondence disclose Government involvement in decisions on matters of policy including, in particular, capital expenditure. However these entries must be seen in light of the financial dependence of the Church upon Government funding. They do not lead me to the conclusion that any of the applicants was employed by the Government. 125 The applicants also rely upon reg 68 of the 1972 regulations, to which I have referred above. It deals with the employment of indigenous persons 'other than on a reserve'. It can have no present relevance. It says nothing about employment by the Government of any indigenous person on a reserve. 126 The applicants seek to rely on the fact that the Director or Deputy Director for the time being attended meetings of the Board. As I have demonstrated, this practice was introduced at a time when the mission was in financial difficulties. The arrangement says nothing about the employment position on the missions. It is also said that the Government was 'engaged in works and enterprises on Church-managed reserves generally, and Hope Vale and Wujal Wujal in particular …'. I do not understand the significance of that statement for present purposes. There is no suggestion, as far as I am aware, that any of the applicants performed relevant work in connection with those projects. Various other powers and functions of the Government under the 1971 Act are referred to as in some way supporting the proposition that the applicants were employed by the Government. None of those matters, to my mind, takes the case anywhere. 127 The applicants do not submit that the statutory regime which existed after the commencement of the 1984 Act was, in any relevant way, different from that which existed under the 1971 Act. Rather, they assert that the position which obtained prior to the commencement of the 1984 Act continued thereafter. 128 I am unable to conclude that any of the applicants was, at any relevant time, employed by the Government. It follows that any claim pursuant to s 15 of RDA must fail. UNLAWFUL Discrimination - Section 9 of rda 129 Alternatively, the applicants assert that the Government's conduct contravened s 9 of RDA in that it nullified or impaired the recognition, enjoyment or exercise, on an equal footing, of rights conferred by subs 9(2) of RDA and article 5(e)(i) of the International Convention on the Elimination of All Forms of Discrimination. In par 7A of the statement of claim it is alleged that the relevant "rights" are 'to just and favourable conditions of work and/or to … equal pay for equal work and/or … to just and favourable remuneration.' 130 For present purposes, an act will be contrary to s 9 if it: · involves a distinction, exclusion, restriction or preference which is 'based on race'; and · has the purpose or effect of impairing the applicants' rights to be paid at higher rates. 131 It is not sufficient that the relevant act has a discriminatory purpose or effect. The act must also 'involve' one of the discriminatory elements (a distinction, exclusion, restriction or preference) which must be based on race. 132 The act identified by the applicants in par 8A of the statement of claim is: '[T]he payment of the [Government] to the Church of grants that were based on race and resulted in the applicants receiving wages which were at a rate less than that paid (i) by the [Government] to its non-Aboriginal employees doing similar work and/or (ii) pursuant to the Award applicable to each of the applicants … .' 133 There are two major difficulties with this plea. Firstly, it tends to confuse the two requirements identified above, namely that the act involve a discriminatory element and that it have a discriminatory purpose or effect. Secondly, use of the word grants indicates that the applicants complain of not one, but numerous "acts". However no attempt has been made to identify them, let alone to show that each payment involved a discriminatory element or an identifiable discriminatory purpose or effect. In other words, the applicants invite me to infer that each of numerous unidentified payments over a period of eleven years involved a discriminatory element based on race and had a discriminatory purpose or effect. The basis for such inferences is that there is a long history in which calculation of grants to the Church was based upon an assumption that a hypothetical number of employees would be paid at rates which were below those paid to Government employees or specified in relevant awards. I will return to this matter at a later stage. I will first consider the relationship between the pleading and s 9. 134 The allegedly discriminatory element of the payments is that each 'grant' was 'based on race'. Grants were certainly based on race in the sense that they were made in order to assist indigenous people, but the applicants do not rely on that discrimination in their favour. They assert that the calculation of the amount of each grant involved a discriminatory element. The Government paid wages at higher levels to its own employees who were not on reserves, and it presumably observed the requirements of relevant awards. However, in calculating the amounts to be paid to churches conducting missions on reserves, it included in each grant an amount which was calculated using pay rates which differed from rates paid to Government employees and/or specified in awards. In the end, I do not think that anything hangs upon the distinction between the two alternatives. The case has proceeded upon the tacit assumption that the Government was paying at least award rates to employees, the relevant awards also applying to some or all of the applicants. 135 There can be no doubt that indigenous people in Queensland were, for some or all of the period in question, significantly disadvantaged. One such disadvantage was that wage levels paid on reserves were lower than levels prescribed by awards and therefore paid in the general community. It is probable that the system of reserves established and maintained under the 1971 Act and the 1984 Act was a cause of such disadvantage. The Government's apparent acceptance of the fact that the Church was not paying award wages on the missions also contributed. Such acceptance was the natural consequence of the fact that, as I infer, the Government was paying below-award wages to indigenous workers on the reserves which it administered. 136 It is one thing to acknowledge that indigenous people were disadvantaged. It is quite another thing to identify a particular act which offended against s 9. As I have said, the applicants did not really seek to do so. No particular Cabinet decision or Government payment was specifically identified as being the subject matter of these proceedings. None was examined to see if it involved a discriminatory element or had a discriminatory purpose or effect. The failure to address particular acts is probably fatal to the applicants' claims under s 9. It is possible to identify from the evidence particular decisions which involved calculations using particular wage rates. It would be more difficult to demonstrate that each decision had a discriminatory purpose or effect. In any event, the case has not been conducted in that way. The Government has been content to deny that it employed the applicants and that it discriminated against them for reasons associated with race. As a result, this deficiency in the applicants' case was not clearly identified at the trial. Nonetheless, I do not understand the Government to concede that it is appropriate for me to approach the problem in a generic way, treating all of the payments as being contrary to s 9, subject only to my accepting the applicants' assertions of a history of wage discrimination by the Government in its funding of the missions, and the demonstrated shortfall in the applicants' wages as compared with those payable under relevant awards. 137 Even if I took such a generic approach, I would still conclude that there was no breach of s 9. There are a number of reasons for that conclusion. Firstly, the only discrimination arguably appearing from the evidence is in connection with wages. To prove entitlement to wages, it is necessary to prove employment. The applicants plead only employment by the Government and have failed to establish that plea. Usually, that would lead to failure in the action. Assuming that the applicants, on the present pleadings, are entitled to rely on discrimination experienced by them as employees of some other employer, I would infer that either the Church or the council employed them. Nonetheless they must show that the Government performed an act which involved a discriminatory element based on race. The only act pleaded (in par 8A of the statement of claim) is the payment of grants to the Church. It is said that the grants: · were 'based on race'; and · resulted in the applicants receiving lower wages than were paid to other employees of the Government doing similar work and/or than were prescribed by relevant awards. 138 As I have said indigenous people on reserves were undoubtedly disadvantaged, but it does not follow that every act connected with their disadvantage was contrary to s 9. The Government was under no obligation to make payments to the Church for use on the missions. No doubt, in discharge of its duty to maintain peace, order and good government throughout the state, it had an interest in seeing that the missions were well run. Clearly, it considered that the payment of grants would contribute to that outcome. However it is difficult to see how the payment of a grant could involve a relevant discriminatory element based on race. Such payments were, in themselves, entirely neutral, save for the fact that they were intended to benefit indigenous people. As I have said, the applicants do not complain on that basis. There is no suggestion that other grants were made at higher rates to facilitate higher payments to non-indigenous workers. As to discrimination in calculating the amount of each grant, there is no evidence that the Government calculated payments to other organizations using higher wage rates. The applicants have established that the grants were not sufficient, themselves, to enable the Church to pay award wages, but there is no basis for asserting that the calculation of the grants involved any discriminatory element. Any discrimination arose from the discrepancy between the amounts paid to indigenous workers (which amounts were derived from the grants) on the one hand, and amounts paid to other workers (which amounts were unrelated to the grants) on the other. That discrimination was the result of numerous factors, unrelated to the acts upon which the applicants rely. For this reason that discrimination was not involved in those acts. In these proceedings the applicants complain of discrimination against them as employees, not that they failed to receive a fair share of public resources generally. 139 A further problem is the requirement that the relevant discriminatory element be 'based on race'. Were the matter free from authority I would be inclined to the view that the expression"based on"should be construed by reference to the verb "base" which, in the Shorter Oxford Dictionary, is defined as follows: '1. Make or act as a foundation 2. Found, build, or construct (up) on a given base, build up around a base, … provide with a base; establish securely.' 140 In other words, the relevant distinction, exclusion, restriction or preference must have race as its basis. However such an approach may be inconsistent with the decision of the Full Court in Victoria v Macedonian Teachers' Association of Victoria Inc (1999) 91 FCR 47. The Court upheld a decision of Weinberg J, reported at (1998) 91 FCR 8. The effect of that decision is that the words "based on" have a meaning which includes 'by reference to', but do not mean 'by reason of'. In particular, the expression involves no requirement for a causal connection between race and the relevant distinction, exclusion, restriction or preference. The notion of a causal connection is not necessarily the same as a basal relationship. A consideration may be the "basis" for a particular action without being the cause of it. I consider that to say that an action is 'based on' a particular consideration is to say rather more about the connection than that the outcome was 'by reference to' that consideration. However I accept, for present purposes, that it is sufficient for the purposes of s 9 that the relevant distinction, exclusion, restriction or preference was 'by reference to' the race of the various applicants. 141 Calculation and payment of grants were incidents of Government funding of the missions. As I do not accept that such acts involved discriminatory elements, it is difficult to determine in the abstract whether, if they did so, such elements would have been so based. It is sufficient to say that it seems that any discrimination against the applicants was based on the fact that they resided and worked on the missions rather than on their race. The applicants argue that those living and working on missions were, almost inevitably, indigenous. There may be something in that argument, but it is not raised on the pleadings. It is not necessary to take it further. 142 If s 9 is to be engaged, the act (having the relevant discriminatory element) must also have had 'the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing' of an applicants' right to equal pay. It cannot be said that the payments made to the Church had the purpose or effect of depriving the applicants of their proper pay rates. The payments enabled the Church to pay them something. Had there been no grants, there would have been other funding arrangements and in particular, reductions in employment levels and greater reliance upon social security payments. 143 It might be thought that such an interpretation of s 9 is inconsistent with the protective and remedial nature of the legislation. However, although s 15 is not to be read as narrowing the ambit of operation of s 9 (see subs 9(4)), the former section offers protection which is designed to deal with wage discrimination. More importantly, following the Murgha case, it was known that relevant industrial legislation offered the applicants the same wage protection as was offered to all other workers. I am not suggesting that the applicants were in any way blameworthy for not seeking out, or pursuing remedies under industrial legislation. I am merely demonstrating that my view of s 9 does not mean that the applicants were without appropriate remedies. 144 Although they have not said so directly, the applicants' real complaint is not that the Government paid money to the Church, but that it did not pay enough. That raises the question of whether the word "act" in s 9 includes an omission to act. There is nothing in RDA to support such an argument. Section 9 may be contrasted with s 15. The latter section clearly addresses omissions to act. In any event, such an argument would inevitably involve the assertion that the Government was obliged to make sufficient funds available to enable the Church to pay higher wages and could not make a partial contribution. Such a construction of the section is simply not available. It might also raise constitutional questions. 145 I should point out that the applicants have not alleged that the Government is liable as a party to any conduct by the Church. There seems to be no statutory basis for such a claim. 146 The claim pursuant to s 9 must fail. Assessment of damages Hurt feelings 147 Not infrequently a trial judge, having found that no cause of action has been made out, nonetheless proceeds to assess damages. This course is designed to avoid multiple appeals, and the need to refer the matter back to the trial judge in the event of a successful appeal. However, in some cases, the absence of a finding of liability makes it difficult or impossible to attempt any such assessment. In the present case, general damages are claimed for what might be described as "hurt feelings" arising out of the applicants' perceptions that they were under-paid for many years. The calculation of any such award is likely to be affected by the circumstances and precise nature of any proven discriminatory conduct. In the absence of any finding that there was such conduct, assessment of those damages is logically impossible. Lost wages 148 However the applicants also claim damages representing wages said to have been lost as a result of their having been paid less than their respective entitlements. Calculation of lost wages involves, in the case of each applicant, identification of: · the period or periods worked; · the appropriate wage rate or rates; and · the wages actually received. 149 Ideally, I should make findings as to each of those matters in the case of each applicant. However it is not easy to do so. There is only limited evidence of the applicants' employment histories. They gave evidence concerning their employment but in some cases, cross-examination showed that their memories were defective. This is hardly surprising given the passage of time. At a relatively late stage in the proceedings, a degree of consensus emerged as to the basis upon which lost wages might be calculated. Both sides have adopted aspects of the evidence of Mr E M Porter, an industrial relations consultant called by the Government. The relevant evidence is contained in exs 43 and 44. The applicants submit that the starting point should be the calculations which appear in ex 44. The Government's calculations are attached to its submissions. As I understand it, ex 44 has been prepared upon the most favourable view of each applicant's evidence from his or her point of view. The Government's calculations are based on its assessment of that evidence, particularly in the light of such records as are available. 150 All claims arose after 31 October 1975, the date upon which RDA commenced. Some of the evidence suggested that the payment of award wages to indigenous workers on the missions commenced from the beginning of 1987. However the parties' submissions have been limited to the period ending on 30 November 1986. I infer that the applicants have accepted that their claims are limited accordingly. I will attempt to identify the difference between the amount which each applicant would have received had he or she been paid at award rates for the period or periods during which he or she worked, according to my view of the evidence, and the amount actually received. A number of other factors may also be relevant to the assessment. I will deal with them separately. James Stanley Baird 151 Mr Baird was born on 12 September 1939 and claims to have worked full-time at Wujal Wujal from 1975 until 1986. He was a licensed truck and bus driver and was employed as such and in farm work. He is not mentioned in surviving records which relate to periods prior to 2 November 1977. However he was mentioned in a survey of employees sent to the Department in November 1979. For at least part of 1975, he was working for the Cook Shire Council. He claims to have returned to Wujal Wujal in that year. In the course of cross-examination he agreed that he may have worked for the Cook Shire Council in 1976 and 1977 and not started work at the mission until 1979. 152 The Government's calculations assume that he was employed on and after 3 November 1977, save for two months in 1979 when he worked for the Cook Shire Council. As I have demonstrated, Mr Baird gave equivocal evidence as to the commencement of his employment on the mission. There is no reason to prefer one part of his evidence to another. In those circumstances the approach suggested by the Government appears to me to be appropriate and, perhaps, somewhat favourable to Mr Baird. I reject his evidence that he was employed at Wujal Wujal prior to 3 November 1977. I find that he was so employed from that date until 30 November 1986, save for a period of two months. I accept the calculations submitted by the Government which show estimated actual wages for the relevant period as $74,669.10, including an adjustment for the two months spent working for the Cook Shire Council. The estimated total at award rates is $81,773.05. This shows a loss of about $7,000.00. Marie Creek 153 Ms Creek was born on 30 August 1956 and worked as a teacher's aide in 1977 and 1978. During that period she was paid by the Education Department. Between 1979 and 1986 she worked full-time as a shop assistant at the Wujal Wujal supermarket. During 1985-1986, she took maternity leave for 12 months. She said that in the middle of 1986 she left the mission and went to Mossman. There are records of her employment from 1980 to 1983 and from February to December 1986. The Government's calculations for the period from 1979 to 1986 show a discrepancy of about $20,000.00. This figure takes into account the fact that she was on maternity leave for one year. The applicants' figures show a discrepancy of about $22,000.00. However that figure seems not to take account of her absence on maternity leave. I assume that at that time, maternity leave was unpaid. The Government's calculations also take into account periods when, according to available records, Ms Creek worked for less than a full day. I suspect that the Government figure is quite generous. I will adopt it and fix her loss at $20,000.00. Frank Tayley 154 Mr Tayley was born on 27 June 1958. He claims that between 1975 and 1986 he worked as a gardener, handyman, truck driver, ambulance driver, fencer and in the butcher's shop. He may also have worked as a stockman, builder and concreter. In cross-examination he agreed that between 1975 and 1986 he had breaks in his employment with the Church. A group certificate suggests that for about two months in 1977, he worked for the Cook Shire Council. Mr Tayley's name was on the survey of employees sent to the Government in November 1979. He is not mentioned in wage records for the period prior to 3 November 1977. Notwithstanding this, I accept Mr Tayley's evidence that he worked on the mission from 1975 until 1986, save for the two month period during which he worked for the Cook Shire Council. Calculations done on behalf of the Government show a total discrepancy of about $9,000.00 for the period from 3 November 1977 to 30 November 1986. Exhibit 44 shows a discrepancy of about $15,000.00 for the period from 31 October 1975 to 30 November 1986. In each case, an allowance has been made for the two months during which Mr Tayley worked for the Cook Shire. Given my finding as to his period of employment, I will adopt the figure of $15,000.00. Henry Walker 155 Mr Walker was, in June 2004, more than 60 years of age. He first went to Wujal Wujal when he was a teenager. He had no education. He said that between 1975 and 1986 he worked full-time at Wujal Wujal as a carpenter's assistant. His name does not appear in the 1979 survey. He may have been at Woorabinda at that time. At some stage he worked on properties on the Cape and at the Daintree State Commission. In cross-examination he said that he stopped working in the early 1980s. In re-examination he said that he would have been in his 20s when he went to Woorabinda and in his early 30s when he returned. 156 Mr Walker's name appears in wage sheets in 1975, 1976 and 1977. It is submitted on his behalf that I should conclude that he worked at Wujal Wujal for the whole of the period from 1975 to 1986. This overlooks his evidence that he ceased work in the early 1980s. The Government submits that I should find that he worked for the period from 31 October 1975 until 31 December 1982. Neither side suggests that I should make any deduction in connection with the period spent at Woorabinda. Exhibit 44 demonstrates a loss of about $25,000.00. The Government's calculations show a deficiency of about $20,000.00. It is for Mr Walker to establish his case. The Government's calculations are based upon a reasonable interpretation of his evidence. I accept that interpretation. I allow him lost wages up until 31 December 1982. It is possible that he worked past that date or stopped work at an earlier time. This approach is simply the best that I can do for him on the evidence. Henry Deeral 157 Mr Deeral was born on 9 October 1934 at Cape Bedford. He went to Woorabinda during the Second World War and returned in the 1950s. He went to school at Hope Vale and Woorabinda. He left school when he was aged fifteen. He was employed at Hope Vale for all of the period between 1975 and 1986. He was a plant operator and worked at least eight hours a day. He recalls working with, amongst others, Mr Gibson who is also an applicant. He was dismissed at some time in mid-1986 after a fight with a non-indigenous person. On one occasion in the 1970s, he went to work on another mission, taking work on an adjoining peanut farm. His wages were paid by the farmer. The Government appears to accept this applicant's case as to quantum. Its calculations show a loss of $37,000.00. The same loss is shown in ex 44. I will fix his damages in that sum. Edgar Ivan Gibson 158 Mr Gibson was born on 26 August 1949 at Woorabinda and went to Hope Vale in approximately 1950. He left school in about 1963. Between 1963 and 1975 he worked at Hope Vale, mainly as a stockman. He also worked there between 1975 and 1979 and between 1981 and 1986. He worked as a plant and machinery operator, as manager of an out-station at Mt Webb and as a community police officer and stockman. He was mostly engaged in operating and maintaining machinery and equipment used in construction work and road work. As manager of the out-station at Mt Webb, he supervised the operation of a cattle station under the guidance of the manager of the Hope Vale mission. Between 1979 and 1981 he was working on a station which was further to the north. He agreed in cross-examination that he worked on the station for one or two months. In the late 1980s or early 1990s he worked at the silica mine. He agreed that if wage sheets showed that he was not working on the mission in 1976, then he may have been working elsewhere. 159 During an adjournment of the trial, further enquiries were made as to Mr Gibson's employment and his history generally. The net result was evidence that between 1976 and 1978, he worked at Lakefield Station, which was not part of the mission. He worked there for a further period of one or two months between 1979 and 1981. He lived in Brisbane for twelve months from 1971 and returned to Hope Vale before 1975. His name was not on the 1979 survey, and there are apparently no wage records which mention him. 160 His former wife said that they were married in Brisbane in 1974 and lived there until July 1977 when he returned to Hope Vale to work at the silica mine. He was there until December 1977. In January 1978 they moved to Canberra and separated in November 1978. I prefer her evidence to his. She has no apparent reason to lie, and her recollection is reasonably detailed and coherent. 161 Mr Spanagel said that Mr Gibson worked at Hope Vale between 1983 and 1986 but was not on the mission for the whole of that period. On this basis the Government submits that there is no reliable evidence that he worked on the mission at all. However I am inclined to accept Mr Spanagel's evidence on this score. Mr Gibson's evidence is obviously unreliable and so I am unable to conclude that he worked there for any period other than between 1983 and 1986. Exhibit 44 suggests that he suffered no loss during that period. The Government has offered no alternative calculations. I am not satisfied that he suffered any relevant loss. Anita Karen Gordon 162 Ms Gordon was born in Cooktown on 17 May 1962 and has lived in Hope Vale for all of her life. She left school at the end of 1978. She then went to work at the Board office as a clerk. She worked in the post office for a short time. In 1994 she moved to Cairns. In 1981, whilst working at Hope Vale, she married. At some stage she made a claim for back wages for a period commencing in 1980. She said that she was told that her claim should be for the period from 1980 onwards. Her name does not appear in the 1979 survey, suggesting that she probably did not start work until 1980. The Government has done its calculations upon the assumption that she commenced work on 1 January 1980, continued until 30 November 1986, and that she worked 40 hours per week, save where the wage records indicate to the contrary. This seems to be a reasonable basis of calculation. The calculations submitted by the applicant show a loss in excess of $5,000.00. The Government's calculations show a loss of slightly over $8,000.00. The difference is in part attributable to the fact that the applicant's figures are for the period commencing on 1 April 1980, whereas the Government's figures are for the period commencing on 1 January 1980. It seems appropriate in the circumstances to accept the Government's calculation and allow a loss of $8,000.00. Ella Woibo 163 Ms Woibo was born on 28 April 1933 at Cooktown and later went to Hope Vale. She married on 24 August 1951. She is now retired. Prior to her retirement she was employed by Queensland Health as a health worker. During the Second World War Ms Woibo went to Woorabinda but returned to Hope Vale. She has been there continuously since 1950. She left school when aged 15. She has eight children. Ms Woibo started work at Hope Vale in about 1972, after her seventh child was born. Her eighth child was born in 1973. Between 1972 and 1973 she worked at the child feeding centre for approximately four hours per day. She did not work between 1973 and 1979. From 1979 until some time between 1982 and 1986 Ms Woibo worked as a domestic, that is as an assistant cook and kitchen hand, preparing meals and doing general kitchen work. This was a full-time job. Thereafter, she worked at the clinic, taking details from patients and performing procedures such as taking blood pressure. It was put to her that wage records showed that she was worked in 1977. She said that this was incorrect but agreed that she may have been working part-time in child feeding. Apparently the records show that she was also working in 1978. In the period between 1979 and 1981 (when Ms Woibo was working as a cleaner) she was working for four hours per day. From 1982 (when she was working at the clinic) she was working for 40 hours per week. In re-examination she said that during some of the time when she was working part-time, she was supervising the feeding of children at the women's shelter. 164 Neither side has offered any basis for calculating Ms Woibo's loss. There is some uncertainty as to her hours of work and appropriate awards. It would be unfortunate if she were to be denied compensation in the event of a successful appeal. Perhaps the parties should make further submissions concerning her case. Other issues concerning damages Discounting 165 As I have said, the above figures are estimates of the probable differences between amounts actually received and amounts payable pursuant to appropriate awards. They are not necessarily indicative of the damages to be awarded. Each figure is a starting point. It may be appropriate to discount it to reflect the usual contingencies such as illness, unemployment and the uncertainty of much of the evidence. In particular, one would have to take account of the fact that had the applicants, or any of them, been paid at higher rates, it is likely that fewer of them would have been employed. I have already "rounded off" the figures. That should be taken into account in any further discounting exercise. In some cases, shorter periods of employment have been allowed than in others. In the former cases, the extent of any further discounting may be less than in the latter cases because there is less uncertainty about the relevant periods of employment. Diminution in the value of money and interest 166 The written submissions on behalf of the applicants suggest confusion concerning diminution in the value of money and interest as a component of damages. The orthodox approach to a case of this kind would be to allow interest at a commercial rate for periods during which each applicant was out of pocket. Commercial interest rates generally contain a component which represents inflation. Interest is payable pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) on causes of action arising on or after 22 November 1984. Obviously, a large part of each of these claims arose prior to that date. Further, in view of the very long period of time which has elapsed, it will be necessary that there be evidence of appropriate interest rates. I will hear the parties further on these matters. Another Matter 167 At least after the decision in the Murgha case the Government was aware that indigenous workers on reserves were entitled to award wages. It was also aware that RDA might require that indigenous workers be paid at equivalent rates to non-indigenous workers. Notwithstanding my conclusion that the applicants cannot succeed in this action, it is of grave concern that the Government should have chosen to ignore breaches of both Queensland and Commonwealth legislation. This is particularly so when it was at the expense of vulnerable citizens. However it is fair to say that this attitude was the culmination of a long history of neglect of indigenous people, based on a tacit assumption that they were disadvantaged by choice. That assumption was false. In the 1970s and early 1980s our attitudes were changing, but such changes have only gradually been reflected in our treatment of indigenous people. Thus the Government treated its obligation to meet the basic entitlements and needs of these people as a matter of relatively low priority, to some extent conditional upon further funding from the Commonwealth. 168 It is no doubt an inevitable part of inter-governmental dealings in a federation that there be haggling concerning funding and responsibilities. However governments should not lose sight of the fact that hard bargaining can disadvantage those whom they are obliged to protect. Orders 169 I will hear submissions as to appropriate orders. I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 19 August 2005 Counsel for the Applicants: Mr D P O'Gorman Solicitor for the First to Fourth Applicants: Robert Bax & Associates Solicitor for the Fifth to Eighth Applicants: V J Butler & Associates Counsel for the Respondent: Mr J E Murdoch SC Mr C J Murdoch Solicitor for the Respondent: Crown Law Dates of Hearing: 6, 7, 8 & 9 December 2004 14 & 15 February 2005 Date of Judgment: 19 August 2005 [1] Exhibit 49, 'Gangurru', p 33 (telegram from H G Millman, Police Magistrate) [2] ibid, p 43 (column 2, second last paragraph) [3] Exhibit 'MAS1' to the affidavit of Maxwell Athol Smith (sworn 8 November 2004) p 6 (paragraph above table) [4] ibid, (table on p 6) [5] Exhibit 49, 'Gangurru', p 69 (second column, second paragraph) [6] Exhibit 'MAS3' to the affidavit of Maxwell Athol Smith p 12 [7] Exhibit 'MAS14' to the affidavit of Maxwell Athol Smith [8] Exhibit 'MAS15' to the affidavit of Maxwell Athol Smith [9] Exhibit 'MAS16' to the affidavit of Maxwell Athol Smith [10] supra