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Reconciliation and Conciliation: The Irreconcilable Dilemma of the 1965 'Equal' Wage Case for Aboriginal Station Workers

Thalia Anthony*

The Commonwealth Arbitration and Reconciliation Commission in 1965 presided over a landmark case concerning the inclusion of Indigenous workers in the Cattle Industry (Northern Territory) Award 1951. The success of the Australian beef industry during the previous hundred years, especially in the Northern Territory, depended almost entirely upon the work of Indigenous cattle workers but they had rarely been paid. The Commission decided to include Indigenous people under the Award, but its characterisation as an Equal Wage Case is a misnomer. The arguments in the proceedings fuelled a decision that compromised the principle behind Award wages. First, the Commission relied on arguments regarding the lower work value of Indigenous workers to allow individuals to be categorised as 'slow workers' on below-Award wages. Second, the Commission referred to evidence on the Commonwealth's assimilation policy to advocate the removal of workers from 'tribal' camps on stations. The transcripts reveal racial biases of the Commission that undermined the granting of Award wages.

 1
For many years Indigenous cattle workers were deemed to be outside the jurisdiction of the Commonwealth Arbitration and Reconciliation Commission (hereafter 'the Commission').1 The Commission formed the opinion that it was the role of governments to regulate Aboriginal affairs and it was therefore unable to deliberate on whether Indigenous workers should be under the Cattle Industry (Northern Territory) Award 1951 (hereafter 'the Award').2 In the context of changing government policy on Indigenous Affairs and the civil rights movement, the President of the Commission, Chief Justice Richard Kirby (later Sir), took the bold step of declaring that the Commission had jurisdiction over Aboriginal workers. He held that the issue of Aboriginal exclusion from industrial awards was of great historical importance to 'the whole Australian community' and it was for the Commission to reconsider this exclusion.3 2
      The case brought together eminent figures in Australian public life who attempted to engage the 'ordinary' language of arbitration, and in particular the notion of work value.4 However, the language of prejudice prevailed in presenting work valuation. The consequence was a decision –Re Cattle Industry (Northern Territory) Award (1966) 113 Commonwealth Arbitration Reports 651 (hereafter 'the Case') – that went beyond the Commission's arbitration role of determining Award wages. The Commission sought to project the changing situation on cattle stations and in Australian society at large, and ultimately promulgated the government policy of assimilation for Aboriginal cattle workers. 3
      The Commission handed down a judgement that failed to deliver Award wages by virtue of inserting a 'slow worker' clause in the Award and endorsing the government position of assimilation involving removal from stations. If Indigenous people were to receive wages and stay on their land, the only option available to them was direct action. Demands for wages and land went to the heart of the Gurindji walk-off in 1966. This culminated into an eight-year long protest that led to the enactment of the Land Rights (Northern Territory) Act (Cth) 1976. However, Indigenous workers generally did not have their wage demands realised because they were made redundant or classed as slow workers. A body of historiography attributes the Indigenous displacement to the Commission's decision.5 However, what this historiography fails to elucidate, which is otherwise revealed through a close reading of the under-utilised Commission transcripts, is that wages did not soley displace Indigenous workers. Rather, the introduction of technologies on stations and the government policy of assimilation (including removal of social security benefits to stations maintaining Indigenous communities) – which the Commission endorsed – was the pine box for Indigenous workers on cattle stations. Extensive testimonies in the transcripts point to these changing economic and social conditions. In this context, the Commission did not seek to rule on 'equal wages', but on the cultural state of Indigenous workers and their future integration into Australian society. 4
   

Historical Contribution of Indigenous Labour on Cattle Stations

 
Northern Territory cattle stations did not provide the classic setting for equal wage arbitration. The workplace did not resemble the orthodox factory floor, but from the mid-nineteenth to mid-twentieth century was more akin to the feudal fief. Indigenous workers and their kin lived on the station property, had connections to that country and developed familial-like relationships with the management.6 They were not paid according to their work, but given 'keep' according to the size of their family.7 In the transcripts, Peter Armstrong Severin who owned Curtin Springs Station, said that stations were 'a sort of benevolent feudal system'.8 The relationship between station owners and Aboriginal workers was described in the Case proceedings as one of 'mutual adaptation' and 'mutual dependence'.9 It was a workable relationship that sustained station productivity and 'made every station ... rich'.10 5
      At the same time, it kept Indigenous cattle workers 'poor'.11 They were not paid wages in the Northern Territory for almost 100 years. On many stations, workers and their families were provided only with meagre allowances of food and clothes.12 When the Commonwealth introduced below-Award wage payments for 'aborigines' under the Wards Employment Ordinance NT (Cth) (1953), set at about one-fifth of the minimum Award, managers sought actively to avoid payment. They recorded wages as credits on station store books, and then over-priced the store items, sometimes by 300 per cent.13 This process, known as 'booking down', meant that Indigenous people were maintained on modest rations well into the 1960s.14 6
      When Indigenous workers were paid, the form and amount of payment was arbitrary. The transcripts reveal that managers were not aware of the wage requirements under the regulations.15 Welfare officers, responsible for enforcing the regulations, did little to ensure adherence.16 Certainly they did not make Indigenous workers privy to their industrial entitlements. Indigenous workers were therefore not only excluded from the Award, but from the entire industrial relations system and its bargaining provisions.17 7
      Station owners were able to minimise labour costs through not paying their stockworkers, on the basis that they were providing food, clothing and accommodation for their dependants who resided on stations.18 Meanwhile, station owners received government subsidies from the Pastoralists' Fund which was intended to subsidise rations for the keep of spouses of stockworkers and one child who resided on stations.19 These people were still called on to do station jobs but were not formally categorised as station workers.20 The money was often given to the manager and placed in general station funds and not necessarily allocated to the needs of Indigenous residents.21 This was one factor that contributed to the pastoralists' desire to retain Indigenous people on stations. 8
      Indigenous people were not only cheap labour for cattle stations, but also abundant labour. They comprised over 90 per cent of cattle station labour.22 Throughout the transcripts managers testified to their convenient availability.23 Large communities of Indigenous people lived on the station property that was their country. In the early station era of the late nineteenth and early twentieth centuries, Indigenous workers were the only source of labour available to managers. The roads were not developed sufficiently to allow white labour to come from towns into remote stations. Also, due to the 'unfavourable' climate, terrain and isolation perceived by whites, Indigenous people remained the predominant source of cattle station labour up until the late 1960s. At any given time up to 6,000 Indigenous workers were employed on Northern Territory stations.24 They took on jobs as stockworkers, domestic servants and maintenance workers who were involved in fencing, digging dams, carrying water, yard building, gardening and road building.25 These workers included men, women, children and the elderly who were employed full-time and permanently.26 9
      Due to this great need for Indigenous workers, when pastoralists in earlier wage cases had defended the below-Award payments, it was based on the indispensability of Indigenous workers.27 Cattle stations would not survive without Indigenous communities on stations and the stations could not afford to pay them Award wages.28 Pastoralist Charlie Schultz wrote in 1948 that he had 'a lot to be thankful for, as regards these abos, and realize without their aid ... I would not have been able to carry on'.29 Two decades earlier, H.E. Thonemann of the Northern Territory Pastoral Lessees Association asserted at a 1929 Commonwealth Conference on the future of Aboriginal workers that:
The pastoralists in the Territory generally feel that the aboriginal is ... essential to the progress of the Territory. The stations – I am speaking particularly of the northern and western parts, – could not carry on without their assistance.30
 The contribution of Indigenous workers was significant, not only because of their sheer numbers, but also due to their skills. They were accomplished stockworkers and their productivity in mustering provided stations with profits in times of drought and depression.31 They were adept horsemen and their early training, often as young as 11 years-of-age, contributed to their competence.32 Indigenous workers' hunting and tracking skills and their familiarity with the sprawling 'station land' and climatic changes positioned them well for the demands of station work.33 Northern Territory Welfare Director Harry Giese maintained that 'Aboriginals took to very readily' the jobs required for station and stock work.34 They also filled the roles of head stockmen and took initiative on stock camps.35 Many took pride in their work and resented being under-paid or not paid at all.36		 10
   

Changing Context

 
   

Work Practices and New 'Work Value' Notions

 
The post-World War II period saw a shift in station practices that began to displace Indigenous workers. Prior to the War, stations were labour-intensive and operated with minimal capital investment.37 This work practice that relied on Indigenous labour, turned the Northern Territory beef industry into one of Australia's leading exporters.38 For many years, cattle stations relied on open range mustering with scant internal fencing, motor vehicles, helicopters or bores.39 The transcripts convey that, from the 1950s, stations had been slowly adopting new practices and technologies to reduce their labour requirements. Roy Trevor Schmidt, an executive committee member of the Northern Territory Pastoral Lessees Association and general superintendent of the Australian Agricultural Company, said under examination that 'we were working towards a stage where we employ a minimum of any type of labour'.40 11
      In particular, the skills of the Indigenous stockrider were increasingly obsolete. The development of internal fencing and use of motor vehicles for mustering replaced open-range horseback mustering that required Indigenous tracking skills.41 Station manager Severin gave evidence that the fencing and yarding program he was undertaking would 'eliminate a lot of tracking in as much as we would get the majority in the trap yards'.42 There was also excavation for bores, which reduced the labour required for collecting water.43 Ivor Edward Victor Paine of Alcoota Station said that the increase in Aboriginal wages would not affect his operations as he was no longer dependent on Aboriginal workers:
The way I have the improvements on the place now [means that award rates] would not worry me much because I could clean up my work in two months in the early part of the year and two months in the later part. I brand twice a year. And I would only have to employ four men for four months of the year.44
 In addition to capital improvements on stations, infrastructure and communications developed after the war. This facilitated the transportation of whites to stations to fulfil the growing requirements of contract or seasonal work.45 Station managers who came before the Commission pointed to the increasing employment of 'white' workers from Queensland and Alice Springs.46 Their travel to remote stations became possible after the war due to the opening of 'beef roads'.47 Indeed, even without Award wages, full-time Indigenous workers would have been replaced by short-term non-Indigenous labour and labour-saving technologies.		 12
      Reductions in government subsidies for Indigenous keep on stations provided an added disincentive to employ Indigenous workers.48 The withdrawal of maintenance payments went hand in hand with the government's policy on assimilation (discussed in the following section). The government instead sought to provide social security to Indigenous individuals on par with non-Indigenous Australians, where 'the usual social service benefits will be available'.49 13
      The changing practices meant that, when the Case was heard in 1965, the earlier arguments relating to the dire need for Indigenous workers were downplayed – notwithstanding that some stations, especially the larger ones including the Vestey-owned Wave Hill station, continued to depend on Indigenous workers. Most of the witnesses were station owners-managers of smaller stations that testified to the utility of a few non-Indigenous workers to run their stations. These witnesses were able to argue, due to the changing practices, that 'white' workers had a higher 'work value' than Indigenous workers based on their skills, training and capacity to harness modern technology. Indigenous workers were cast as unskilled and unprofessional, mainly by reference to their cultural attributes rather than their productivity. However, the Commission did not investigate Aboriginal workers' valuable contribution to stock camps, which anthropologists claimed was an enormous omission in its inspections of stations.50 Instead, the Commission chose to accept that Aboriginal workers were racially and culturally inferior as evidenced by the increasing use of 'white' workers trained in mechanised station practices.51 14
      At the same time as work practices were changing, there was a shift in the general argument in wage disputes. Wage determinations based on the 'pecuniary value of the work done' by the individual worker were overshadowing determinations based on the relationship of workers to one another.52 John Kerr QC (later Sir and Governor General of Australia) led this shift in the 1961 Professional Engineers Case and was also the counsel for the employers in the Cattle Station Award Case. In the Professional Engineers Case, Kerr argued that workers should have their salary measured against their work value, which took into account inter alia the individual's actual duties, responsibilities, degree of supervision, training, experience and qualifications, as well as conditions in remote areas, safety issues, promotional chances, mathematical capacity and lack of opportunity for private practice.53 A unanimous decision of the Commission in the Professional Engineers Case found that a higher work value leads to greater efficiency. Therefore, skilled workers should attract higher wages than non-skilled workers. Each worker would have to make their own claim with proper proof of work value in order to receive higher wages, on a scale above the minimum Award rate.54 15
      John Kerr prompted his witnesses to refer to the low work value of Indigenous workers to justify their below Award wages. Station manager Dennis John Driver of Elkedra Station said that white stockmen 'are preferable to aborigines as stockmen ... on a pure work value basis'.55 This work value discourse pervaded the proceedings and concealed their prejudicial meaning. Kerr argued that the Commission was accustomed to valuing 'the differences in working capacity of different categories of workers'.56 It was the 'ordinary' course of arbitration.57 He stressed that in each category of skilled labour there should be equal pay for equal work. Notwithstanding that the major stations in the Territory did not give evidence to the Commission, Kerr contended that a 'Territory-wide reasoned assessment' would reveal that Indigenous labour was worth less than non-Indigenous labour.58 He cautioned that violation of arbitration principles by over-pricing Indigenous labour would be discriminatory and lead to 'dis-employment'.59 16
      Despite this apparently objective approach, Kerr, the counsel for the Commonwealth, James Gobbo QC (later Sir and Governor of Victoria) and ultimately the Commission, concluded that Indigenous workers had a lower work value because of their 'semi-tribalised' state.60 Cultural factors prevented Indigenous people from possessing the skills of 'white' workers. When employers conceded to Indigenous competencies, they were described as 'natural abilities' rather than 'skills'.61 The discourse highlights the reluctance to characterise Indigenous people as valuable to stations. But Kerr refused to acknowledge that it was based on racial prejudice. He said that it was discrimination, but it was 'not a racial one: it [was] a work value discrimination'.62 17
   

Assimilation

 
Linked to the issue of the lower work value was the argument put forward by the Commonwealth government that training and education of Indigenous workers would lift their work standard. The development of skills on-the-job would be replaced with education and training away from the stations. This was tantamount to a policy of assimilation with which the Commonwealth was generally approaching Indigenous affairs. The Commonwealth's application to be an intervenor in the case stemmed from its responsibility for Northern Territory Aboriginal policy since 1911. Although the Commonwealth had previously rejected Award wages for Indigenous workers, it used the 1965 Case to express its views on assimilation. The official Aboriginal policy of assimilation was championed by the Commonwealth Minister for the Territories, Paul Hasluck, between 1951 and 1963, with a view to placing Indigenous people on an 'equal footing' with non-Indigenous people.63 The Commonwealth perceived that the continued existence of Indigenous communities on stations inhibited assimilation. 18
      The Commonwealth supported Indigenous workers being included under the Award – but only after they had been trained in the 'Australian Way of Life'.64 The Commonwealth perceived that retaining Aboriginal communities on stations, where they could exercise their customs and retain connections to their land, was inhibiting their assimilation into Australian society. In 1965, the Commonwealth believed that the vast majority of Indigenous workers were not yet worthy of Award wages. Most Indigenous workers would have to be placed on government settlements or missions where they could be educated, trained and instilled with Australian 'lines of thought'. Only after 'the vestiges of aboriginal society' had diminished, could they seek Award wages.65 19
   

Civil Rights and Industrial Unrest

 
The application by the North Australian Workers Union (NAWU) for inclusion of Indigenous workers under the Award was the product of ongoing workers' unrest on Northern Territory stations. Aboriginal workers on stations had a long history of strikes against the deplorable treatment and conditions. Their unrest began in Western Australia in 1946 in the Pilbara and the Kimberley. Between 1950 and 1951, the NAWU prepared a typed statement demanding that male and female Aboriginal workers be paid a minimum wage of £7 per week. A Committee was set up with the leadership of Union organisers, Dexter Daniels and Vincent Lingiari, as well as the Communist Party, to give national coverage to the Aboriginal strikes.66 During this period, the Commission refused to hear applications for 'aborigines' to be included in the Award.67 The Native Affairs Branch sought to discredit Aboriginal leaders by labelling them as 'outspoken' or 'cheeky', and manipulated by the NAWU.68 The Minister for the Interior threatened to cut off rations for strikers.69 Led by Paddy Carroll, the protests persisted, and eventually in 1965 the Commission decided to grant leave to hear a NAWU application for Indigenous Award wages. 20
      The Indigenous workers' movement also reflected the high water mark of the 'civil rights' campaigns in the mid-1960s. It was a period when Indigenous people had gained the vote, were given social security entitlements and were agitating for constitutional change to delete provisions excluding Aboriginal people via a national referendum. The Commission's judgement, which Chief Justice Richard Kirby believed would 'be seen as the greatest contribution he and other members of the Commission made to Australian society',70 was a mixture of the civil rights and assimilation phases in Australian history. 21
   

Procedural History and Issues of the Case

 
The NAWU brought this case as a matter of principle: to acquire a declaration that Aboriginal cattle workers were worthy of inclusion under the Award. Its application was filed on 21 January 1965 to amend the Cattle Station Industry (Northern Territory) Award of 1951 to include 'aborigines'. The NAWU sought to delete Clause 6 that excluded 'aboriginals or domestic servants' from the Award. Its application was that 'aborigines' should be entitled to the minimum Award conditions and pay.71 The Union was not seeking equal pay with 'white' workers who were paid in excess of the Award minimum. 22
      Hearing the Case were the President, Chief Justice Richard Kirby, Justice Moore and Senior Commissioner Taylor. Chief Justice Kirby allowed the case to proceed, but only in so far as it concerned Aboriginal stockworkers and station hands, and not domestic servants.72 The Commission received extensive submissions and exhibits, particularly from the pastoral employers. The Commission also inspected Northern Territory cattle stations, missions, schools and the Royal Flying Doctor Base, and conducted interviews with those running these institutions. The Commission did not interview any Aboriginal workers. 23
      The central theme in the nine months of hearings and almost 1,000 pages of transcripts was the argument between pastoral employers and the Commonwealth government: to keep workers on stations at lower pay or to introduce Award conditions and remove them to settlements. This was a sitaution in which Indigenous workers could only lose. The Union did not engage in this debate (by arguing the alternative position of keeping Aboriginal people on stations at higher pay) but remained focused on the principle of Award wages. The Commission became a player in the 'game' and would decide the issue of Award wages with reference to the common prejudice between pastoralists and the Commonwealth – that Indigenous workers were inefficient and unaffordable. 24
   

Hearings and Submissions

 
   

Pastoral Employers' Case

 
The overwhelming bulk of evidence was presented by the counsel for the employers. Indeed, Kerr was omnipresent in the transcribed proceedings with his extensive soliloquies and bulk of evidence. Kerr produced a wealth of exhibits, including parliamentary hansards, government policy, Ministerial reports, Awards in other industries, anthropological findings, 'ethnopsychiatric' evidence and international covenants and reports, to support his case that Indigenous workers had a lower work value than 'white' workers. He did not produce evidence from Indigenous people themselves, or even 'white' workers. Kerr examined almost 20 witnesses, predominantly station managers, about the Aboriginal approach to work and their cultural practices. Many of them were executive members of the Centralian Cattlemen's Association and the North Australian Pastoralists Association. 25
      John Kerr's evidence was pitched towards disclosing the low work value of Indigenous workers. Witnesses claimed that 'aborigines' were only 50 per cent as efficient as white workers.73 Regulations under the Wards Employment Ordinance, gazetted in 1959, set down 'full-blood' Aboriginal adult male stockworker wages at less than one-fifth of the Award wage of £11 2s 6d per week at £2 8s 4d,74 and many pastoralists did not even meet this payment.75 By contrast, 'white rates' were granted at above-Award sums of up to £18 4s 0d per week.76 Nonetheless, in the proceedings, managers, such as Driver, insisted they would not employ 'natives' if they had to pay them Award rates because it would 'not be economically feasible because of work value'.77 Kerr deduced that payment of Award wages would lead to the 'dis-employment' of Aboriginal workers due to the 'implacable operation of economic forces' that would price them out of the market.78 Essentially, it was based on the social Darwinist idea that superior white workers would prevail.79 26
      In explaining the lower work value of Indigenous workers, Kerr emphasised that Indigenous people were unskilled.80 This argument was presented both directly and through the flippant representations of Indigenous competencies. Indigenous workers had 'the edge on whites at tracking when mustering'81 not because they were skilled. Rather, because they were 'naturally good at tracking, [since] tracking meant their meals for them ... and it is an instinct born into them'.82 Indigenous workers were also described as having 'a natural aptitude for both unskilled and some types of skilled manual work'.83 They were better at 'making concrete bricks' because of the monotony of the work. 'White workers', by contrast, were more akin to artists.84 David Anthony Chisholm of Anningie Station and President of the Centralian Cattlemen's Association, said with respect to Indigenous workers:
They can't count, they can't drive a car; they can do ordinary straight-forward jobs that require just somebody to, say, shovel sand in a truck; they can do that very adequately; and they have a certain amount of initiative.85
 However, pastoral employers noted that skilled labour would be required when motorised mustering further developed.86		 27
      Given that training was another indicator of work value, the witnesses for the employers' counsel devalued Aboriginal workers' training on the job. Despite the fact that Aboriginal boys would begin stockwork from the age of 11 years, pastoralists did not portray this as training.87 It was described in proceedings as learning by observation, or 'learning on the job'.88 Kerr said that their wage reflected the fact that 'they are learning' and 'doing some work'.89 Pastoralist Morley noted that anything they learned on the job was by way of accident: 'just picked it up incidentally'.90 Indigenous workers were often described as horse riders rather than stock riders to devalue their jobs. By contrast, a white boy 'has his schooling and then goes off to jackarooing and learning the art on the station property'.91 28
      The capacity for Indigenous workers to develop this art of cattle work was limited. Morley said that they would get up to speed and then they would plateau: 'They are just like a racehorse that is not quite good enough; that never makes the grade'.92 Peter Lawrence Baillieu, manager of the large station at Brunette Downs, said that the 'traditional way' to engage Aboriginal labour 'is as soon as they are able to ride a horse they are put in a stock camp and it is up to them; they are either reasonably productive as stockmen or not'.93 He contrasted this with completing a 'training program' for jobs 'requiring any great skill'.94 Baillieu nonetheless admitted that some Indigenous workers were able to operate motor vehicles.95 29
      Pastoralists also undermined Indigenous workers' value by emphasising their lack of qualifications.96 Kerr pointed to Indigenous workers' inability to read, write and count,97 although suggested that these inabilities 'would not depress the [work] rate in any dramatic way'.98 Pastoralists nonetheless persisted with claims that the lack of schooling was a major impediment for cattle work.99 Indigenous workers were unable to provide precise figures of cattle, but described them as 'big mob' or 'little mob' or 'little big mob' or 'big little mob'.100 However, other pastoralists mentioned that some Indigenous stockworkers could read and count,101 and Kerr admitted that there were 'a sprinkling of illiterate' whites on stations.102 Notwithstanding these admissions, Kerr's conclusion was that the lack of education decreased Indigenous workers' value.103 30
      John Kerr further sought to diminish the work value of Indigenous workers by pointing to their need for 'constant supervision'. The term 'constant supervision' was bandied about rhetorically in the proceedings.104 Kerr articulated that the station owners adjusted themselves to the fact Aboriginal workers provided 'inefficient labour, labour which in many respects was frustrating in its use, labour which in many respects did not provide skilled work, consistent work, constant work, without supervision'.105 Pastoralists would 'have no objection at all to the payment of full award wages to any worker who can perform the full range of duties ... without the need for constant supervision'.106 Manager John Morley of Jervois Station detailed the supervision required for putting away saddles, using tools properly and ensuring workers got to the job at the right time.107 Otherwise Indigenous workers would go off 'to find food when mustering' or take a nap on the job.108 31
      However, despite using the term 'constant supervision', many pastoralists admitted that Indigenous workers were often kept on the job for days without a 'white' overseer. Some even attested to Indigenous workers doing some of the supervising themselves.109 Under cross-examination, many pastoralists admitted that supervision was only required 'every few days'.110 32
      Indigenous workers lacked skill and reliability, according to the pastoral employer's case, due to their 'semi-tribalised' state. Their ongoing 'tribal life' with 'tribal mores, customs, outlooks, habits and so on' led them to being inherently 'lazy'.111 Kerr presented anthropological and 'ethnopsychiatric' evidence attesting to the incapacity of 'aborigines' to work as efficiently as 'whites'.112 This evidence pointed to the moral defect in Indigenous culture. Therefore, even where 'aborigines had achieved a high degree of skill as stockmen', according to Kerr, it was undermined by 'a number of qualities that affect their value as stockmen', including 'a lack of willingness to accept responsibility, inability to work consistently and without supervision'.113 By contrast, 'white workers' were independent and reliable, affording them a higher work value.114 Indigenous workers' culture precluded them from reaching such standards.115 Kerr stressed that Indigenous workers were not as reliable because they could not comprehend 'consistent daily work' or 'carry[ing] out instructions'. These notions 'are simply not in the head of the person concerned'; some 'simply cannot accommodate themselves to the idea of work at all, the idea of sitting down, running off and hunting, all those things are uppermost'.116 Moreover, pastoralists described in negative terms the fact that Indigenous workers 'have no responsibility, really, they don't know the meaning of the word at all' because 'they feel that work is a way of getting fed'.117 Manager Driver also criticised the morality of Indigenous people for only wanting to make a living.118 33
      Pursuant to the line of reasoning on work value, the counsel for the employers concluded that a 'slow workers' clause should be inserted in the Award to accommodate the 'second grade' labour of all 'aborigines'.119 Kerr pointed to Minister Hasluck's comments on 'the painstaking quality' and 'slowness' of Indigenous work to justify this clause.120 In addition, a scale of remuneration should reflect the work value grades, beginning at the current below-award rate.121 The Commission enunciated that this was contrary to the principles of arbitration where everyone was given the minimum award rate. Kerr responded by stating: 'But not if you put the minimum which totally ignores the anthropological situation, the fact that these [Aboriginal workers] are not Australian in the ordinary cultural sense and not capable of working in the ordinary sense'.122 Ultimately Kerr concluded that Aboriginal workers were not ordinary workers at all. Rather, they came from a special class that had a lower work value due to their cultural background. 34
      To avoid being cast as racially prejudiced, Kerr stressed that employers were sympathetic to Aboriginal peoples' need to 'live on their tribal country'. They recognised that their land (which had been expropriated by the property holder) is 'customarily and tribally very important to them'.123 Managers were willing to provide them with employment despite their inefficiencies so that workers could retain their strong cultural ties.124 Kerr asked Station Manager Driver why he employs 'aborigines', given their 'lesser work value'. He responded that it was because of 'sentiment': 'we have always had a camp there; it is definitely their country ... and if they wish to remain there, it is my duty to employ them there and given them some chance of livelihood on that country'.125 Driver also conceded that their employment produces 'a slight economic advantage'.126 However, the station owners emphasise their own paternal role, rather than their exploitative role.127 Therefore, Indigenous workers, rather than the employers, were portrayed as the beneficiaries of under-Award wages.128 Edward John Connellan of Narwietooma Station said that he felt obliged, 'to help these people who had previously owned the land and still had access to it, to give them employment and to give them opportunities to better themselves'.129 Henry Charles Bladwell, manager of the large Victoria River Downs Station, said in evidence:
They were there before we were, and we have no desire to injure them or hurt them in any way, so we would like to be able to work with them. ... [Therefore] these people are entitled to be looked after and maintained on the property if that is possible.130
 Employers believed in the rights of Indigenous people to stay on their land, and were critical of government attempts to remove Indigenous workers to distant settlements for training.131 Station owner Paine said he would not move them as, 'It would break their hearts ... it would kill them to have to go away to another settlement' far away from their country.132 Chisholm said it would be a 'tragedy' to pick up 'aborigines' from stations 'holus bolus and place them on settlements'.133 He further stated, 'These people have been part of the property for much longer than I have been there and I would be very loath to move them off'.134		 35
      At the same time, however, pastoral employers claimed they could not afford to keep them on stations if they had to pay Award wages.135 Manager Baillieu asserted that despite his 'moral obligation' to find his Aboriginal workers employment, the increased costs would mean 'they would be removed to settlements either en masse or split up among various settlements'.136 This evidence led Kerr to state that the Commission should not, through imposing higher wages,
seek to displace from the pastoral properties the aborigines and force them into the settlements. ... [The Commission] should not, as a wage-fixing authority, take the responsibility for a deliberate piece of social engineering. If anybody is to do it ... it is a matter for which the Government should take direct responsibility.137
 However, Kerr foresaw that the Commission would shy away from its 'classic task' of assessing work value and attempt to instigate a 'social revolution'.138 He therefore provided the Commission with a stop-gap position that would suit government policy, Indigenous land and customary ties and, importantly, employer profits. Kerr's proposal was for cattle station managers to implement the government policy of assimilation. After all, stations were best placed to realise this policy because there Aboriginal people 'could work in the real world with growing degrees of efficiency and growing economic reward'.139 At the same time, managers could take a greater responsibility in training and education on stations, including establishing schools where the 'native child' could be educated in conjunction with learning stock work.140 Managers gave evidence that this had been trialled at stations with some success.141 These endeavours at schooling on stations could further develop through cooperation between governments and pastoralists.142		 36
      John Kerr warned that if the Commission increased wages and supported removal to settlements, it would offset the goals of assimilation. This is because Indigenous workers would become 'unemployed in thousands' and prevented from 'productive activity' in 'a very important industry' in the 'outside world'.143 'Christian conversion' would be smoother on stations than through instant disemployment as a result of the Award.144 Kerr argued that Aboriginal station workers who grew up on stations were relatively efficient compared to those on settlements because they learnt 'white' work ethics and not only the 'three Rs'.145 He believed that Aboriginal integration would be assisted through the Commission pursuing its traditional 'wage-fixing' task of finding out Aboriginal peoples' 'work value', and not engaging in 'social experimentation'.146 Ultimately, Kerr perceived a correlation between 'well-recognised industrial principles' and 'the best interests of the aborigines themselves'.147 37
   

The Commonwealth Position

 
The Commonwealth also framed its argument by latching onto Kerr's idea of the lower work value of Indigenous workers.148 It attributed their performance to their semi-tribalised life on cattle stations where Aboriginal people were free to practice their customs. In the transcripts, Gobbo focused on the inability of 'native' workers to read and write.149 38
      The means of lifting their work value was assimilation. This involved including Indigenous workers within the Award as a right, and also taking them off stations for training to increase their efficiency to make them deserved of such wages. Gobbo argued that scholastic and moral education would improve their work value, not just in cattle work but also in the 'white' ways of life.150 This would overcome their cultural limitations that were being entrenched on stations. It was the government's responsibility to lead the phase of Aboriginal advancement on its settlements, before their eventual entry into the mainstream economy.151 39
      In putting the Commonwealth's position, Gobbo, proposed that the introduction of Award wages should be gradual to allow for Aboriginal people to be removed from stations and for employers to make alternative arrangements. There should also be a slow worker clause to accommodate stations who continued to employ Indigenous workers. Gobbo summarised the Commonwealth submission accordingly:
First, the Commission should, in these proceedings, remove the discrimination against aborigines as appears in the Cattle Station Industry Award; second ... a gradual or deferred application of the implementation of full award rates to aborigines. Finally, ... a provision in the award for a slow or infirm worker clause which could be used to cover a limited number of aborigines.152
 		40
   

The Union's Case

 
Despite the significance of this case for the workers' movement, the Union's counsel, Brodney QC, paled in the shadow of Kerr for much of the proceedings. Indeed, at times he was physically absent, citing illness. The Union's application to have Aboriginal workers included in the Award was a matter of principle. The application of 'settled principles' to the Award was 'urgently necessary' because it was 'a foundation for the development among aborigines'. It was an 'orthodox arbitration case' and thus 'within itself a small case'.153 Although he recognised it as a significant case for Aboriginal people and Australian society more broadly, Brodney resisted raising practical considerations regarding Indigenous 'welfare'. He saw this as outside the mandate of arbitration. 41
      The Union did not call any Indigenous witnesses or rely on their testimony, despite the fact they would have been best placed to refute pastoralists' evidence on their work value. Indeed, Brodney did not call any witnesses at all and admitted only one exhibit. The Union apparently believed that the most articulate and politically active workers would have difficulty 'stand[ing] up to the sort of questioning that they would be subjected to by the [pastoralists' counsel]'.154 42
      It was only in the final moments of the proceedings that Brodney's argument was injected with some life. Brodney insinuated that Indigenous workers were as efficient as non-Indigenous workers.155 In his cross-examination of the final witness, company executive Schmidt, Brodney pointed to the prosperity of cattle stations, for which Schmidt reluctantly agreed.156 Brodney also argued that, even if their work took longer, they still completed allocated tasks (the same ones completed by 'white workers'), and therefore contributed to station profits.157 Brodney deduced that Aboriginal workers were not 'physcially incapacitated' because if they were they would be taken off the job.158 He drew an analogy with cattle, which would not be made to work when injured, although mocked the suggestion that cattle were treated better than the Indigenous workforce.159 43
   

The Commission's Reasoning

 
The Commission accepted that Indigenous workers were culturally limited, as evidenced in the proceedings and its decision. The Commission wrote: 'Generally speaking, we accept the uncontradicted evidence given by pastoralists as to the work ability of the aborigines, supported as it was by what we saw ourselves and by the anthropological and other material'.160 In proceedings, the Commission rarely interjected to interrogate pastoralists' bold assertions regarding work value, inefficiency, unreliability and constant supervision. Kerr was allowed to deliver drawn out speeches and quote at length government policy and anthropological evidence – both concerning the limitations of Indigenous labour – without interruptions. Chief Justice Kirby would later repeat his submissions as a matter of fact.161 He affirmed the cultural limitations of Indigenous workers by embracing the anthropological ideas on 'ethno-psychiatry'.162 The Chief Justice said that evidence of northern Aboriginal 'personality disorder' reflected their 'loss of purpose in life'.163 He said that while Indigenous people were not physically disabled in the 'true sense'; they were nonetheless different to white workers.164 44
      The Commission's embryonic prejudice during the proceedings was fully conceived when it handed down its decision. The Commission found that 'at least a significant proportion of the Aborigines employed on cattle stations in the Northern Territory is retarded by tribal and cultural reasons from appreciating in full the concept of work'.165 The bench pointed to the inability of Indigenous workers to read, write or count.166 They did not, according to the Commission, understand economic growth, numbers or mathematical accuracy, precise distances, time in the Western sense or forward planning. Overall, Indigenous workers' 'culture excluded the idea of disciplined, reliable and responsible endeavour under a contract of employment'.167 45
   

The Commission's Decision and Orders

 
The prejudiced discourse in the proceedings placed the Commission in an ideal position to go beyond its mandate and deliberate on the future of Indigenous workers in its unanimous decision. Chief Justice Kirby said the 'dominant task' of the Commission was to assess the social consequences of its decision.168 Despite Kerr's clarion call to the Commission to avoid 'social engineering' by introducing Award wages, it was Kerr's unrelenting submissions on the inefficiency of Indigenous workers that fuelled the Commission's decision in favour of Award wages. 46
      On 7 March 1966 the Commission ordered that the exclusionary provisions concerning Indigenous workers be deleted from the Award.169 To this extent, the decision represented a victory for the Union. The Commission stated that exclusion of Aboriginal workers was contrary to 'overwhelming industrial justice' and the 'standards and principles' of arbitration which should be 'similarly applied to all Australians aboriginal or not'.170 For the Commission, the decision to include Aboriginal workers was 'the only proper one to be made at this point in Australia's history'.171 47
      However, this proclamation on formal equality was undermined by other aspects. Firstly, the Commission ordered that the amendment should be delayed for almost three years, until 1 December 1968.172 This was despite pastoralists conceding that 25–30 per cent of Aboriginal workers were already worthy of Award wages,173 and pastoralists naming highly competent Aboriginal workers throughout the transcripts.174 The Commission justified the gradual introduction in terms of the needs of pastoralists to restructure their labour practices and the Commonwealth to implement its assimilation policy smoothly.175 48
      Secondly, the Commission recommended a slow worker clause be inserted into the Award.176 The clause would allow lower rates to be paid to individuals who were 'unable to earn the minimum wage'.177 Although it did not cover the whole 'class of aborigines'178– which Kerr implored the Commission to include – effectively it applied to Indigenous workers to keep their wages lower than 'whites'.179 49
      Finally, the Commission endorsed the removal of Indigenous workers from stations to settlements. It reasoned that although 'the most advanced' Indigenous workers would 'assimilate on the station properties', those who were 'having the greatest difficulty in understanding the concept of work and in fitting into our economic community' would become disemployed. These Indigenous workers would then 'move to settlements or missions' which would, the Commission believed, assist rather than hinder 'assimilation and integration' because it would rid them of their 'tribal' habits.180 Therefore, the principle of Award wages was undermined by cultural prejudices and support for the government's assimilation policy. 50
   

The Reaction and Aftermath of the Commission

 
Indigenous workers on northern cattle stations were not seduced by the Commission's empty promise of Award wages. Within five months of the decision, a protest began at the Wave Hill Station which was to last eight years and culminate in the longest strike in Australian history. The Gurindji cattle workers, led by Vincent Lingiari and supported by the NAWU,181 demanded better working conditions, pay and land.182 They walked off the station and established a settlement at Wattie Creek (Daguragu), 16 kilometres east of Wave Hill. They established a settlement with 100 stockmen and 100 dependants.183 The Gurindji people believed that with land they could run their own economy, and possibly stations where they could reap the rewards of their work value. 51
      These Indigenous people were confident of their work value. Even when the Vestey's management offered higher wages, the Indigenous workers would not relinquish their campaign until they also had their land. Managers of Wave Hill Station were not examined in the proceedings of the Case. Anthropologists have claimed that it was on stations such as Wave Hill that Indigenous workers made their indispensable contribution.184 52
      The Commission did not choose to hear these voices. It was open to the Commission to support Award wages and support their continued employment, as much as it was able to advocate the removal of Indigenous people from their land on the stations. Pastoralists had earnestly volunteered evidence on Indigenous workers' connections to station country. But the Commission refused to heed to pastoralists' motions in favour of Indigenous people staying on station land with government support. 53
      Instead, it was left to a protracted struggle by Indigenous workers before land rights would be granted.185 The victories of the Wave Hill Walk Off were crystallised in the Land Rights (Northern Territory) Act (Cth) 1976. This period also marked the beginning of the 'official' policy of Indigenous self-determination when hundreds of Indigenous enterprises would be formed. It could be argued that it was this Indigenous workers' movement – rather than the Case presented to the Commission – that was the real making of Australian history. 54
      However, even the Land Rights Act was a pyrrhic victory. Much of the land given to Aboriginal workers was not of high productive quality and capable of supporting Indigenous-run cattle stations. Further, government support for Indigenous enterprises was limited. Therefore, most Aboriginal workers were pushed into unemployment. They were forcibly removed from stations and onto settlements, which did not lift Aboriginal work value, but represented a new phase of exclusion. 55
   

Conclusion

 
The changing conditions in the Northern Territory cattle industry, and in Australian society generally, presented the Commission with a unique opportunity to decide on Aboriginal affairs. Chief Justice Kirby embraced this opportunity by claiming that Aboriginal workers were within the jurisdiction of the Commission, and no longer exclusively the subjects of government policy. This move was symptomatic of the shifting tide towards Indigenous inclusion and formal equality. All parties accepted that Indigenous labour should be included in the industrial relations system, but their approach varied. 56
      In the proceedings both the representatives for the pastoral employers and the Commonwealth government argued that Indigenous workers were culturally inferior and ascribed to them a lower work value. They pontificated on the best way to assimilate Indigenous people through wage determination. Employers proposed that below-Award wages should remain to allow Indigenous workers to assimilate on stations. The Commonwealth argued that Award wages should be introduced in order to force out inferior Indigenous workers from backward station life and move them onto settlements for transition into Australian society. The Union, to its peril, took the wage case on its own terms and did not engage with these cultural arguments by disputing prejudices. By not calling Indigenous witnesses, they were seen as complicit in the Indigenous stereotypes presented to the Commission. 57
      The Commission adopted the approach of the employers and the Commonwealth to devalue Aboriginal labour. Aboriginal workers were depicted as unskilled and unreliable due to 'cultural factors'. The Commission rejected alternative evidence that Indigenous people worked well on their land and should retain connections to their country. Rather, it took the position that only a few selected Indigenous workers should remain on stations. Its reasoning was couched in the employers' 'work value' discourse. To this end, even the competent ones who stayed on stations only received 'slow worker' rates. However, this reasoning was not based on neutral labour principles; the proceedings unveil its culturally charged assumptions about the lack of Indigenous skills, qualifications and education that reduced Indigenous work value. 58
      The Commission boldly went on to devise a social policy. It asserted that 'semi-tribalised' and 'retarded' workers with a lower work value, as well as the families of Indigenous workers, should be moved from the stations and onto settlements. This was the Commission's 'natural selection' approach. In supporting the removal to settlements, the Commission went beyond its economic role and advocated the Commonwealth government's assimilation policy. 59
      By advocating for a capitalist wage labour market on stations, the Commission undermined extensive testimonies that station work provided Indigenous people with vital ongoing connections to country. Indeed, removing these connections was consistent with the Commission's approach to assimilation. The new labour relations on stations were facilitated by changing practices, notably the introduction of motorised transport, roads and internal fencing and the influx of non-Indigenous labour. Cattle stations were no longer feudal enclaves that had a dependence on Indigenous workers, and the Commission was powerful in sounding their death knell. 60
      The Commission's conclusions on assimilation, and the subsequent removal of Indigenous workers from their land, contributed to an Indigenous backlash that culminated in Australia's longest strike at Wave Hill. The Wattie Creek protestors recognised that this was their second major dispossession since colonisation, and demanded land rights and wages. They were able to see the decision for what it was: a hallmark for assimilation that would lead one step towards inclusion and two steps back to exclusion. 61


Thalia Anthony is a lecturer in the Faculty of Law, University of Sydney. She completed her PhD in 2004 on Indigenous cattle workers in northern Australia. Thalia has since written articles, given conference papers and made Senate submissions on legal claims to stolen wages for these Indigenous workers. She is currently endeavouring to record the oral histories of Wave Hill cattle workers.
<T.Anthony@usyd.edu.au>


Endnotes

*This article has been peer-reviewed for Labour History by two anonymous referees. The author wishes to thank them, Associate Professor John Shields and the library staff at the Australian Industrial Relations Commission in Melbourne and Sydney.

1. Portus (Commission President), Direction No. 397/180 re s34 Conciliation and Arbitration Act 1904–1964, 4 May 1951, p. 2.

2. Richard Kirby CJ (Commission President), Direction No. 830 of 1965, 25 February 1965.

3.Ibid.

4. Commonwealth Conciliation and Arbitration Commission, Transcripts of Proceedings in the matter of the Conciliation and Arbitration Act 1904–1965 and of The Cattle Station Industry (Northern Territory) Award, 1951, Nos. 397 and 553 of 1950, 1965 (hereafter Transcript), p. 935.

5. For example, Bill Bunbury, It's Not About the Money It's The Land: Aboriginal Stockmen and the Equal Wages Case, Fremantle Arts Centre Press, Fremantle, 2002, p. 159.

6.Transcript (Connellan), p. 394/5.

7.Ibid.

8.Transcript (Severin), p. 274.

9.Transcript (Kerr), pp. 158, 432, 434.

10. Jack Jangari in Deborah Bird Rose, Hidden Histories: Black Stories from Victoria River Downs, Humbert River and Wave Hill Stations, Aboriginal Studies Press, Canberra, 1991, p. 81.

11.Ibid.

12.Transcript (Chisholm), pp. 449–51, (Baillieu), pp. 745–6.

13. Rose, Hidden Histories, p. 155. For more modest accounts of station store mark-ups see: Transcript (Morley), p. 247, (Chisholm), p. 465.

14.Transcript (Morley), p. 219.

15.Transcript (Morley), p. 249; (Severin), pp. 292–3; (Connellan), pp. 386, 381; (Driver), pp. 342, 345.

16.Transcript (Forbes), p. 496.

17.Transcript (Baillieu), p. 749.

18. See: Thalia Anthony, 'Unmapped Territory: Indigenous Stolen Wages on Cattle Stations', Australian Indigenous Law Review, vol. 11, no. 1, 2007, p. 4.

19.Transcript (Morley), pp. 208, 220, 246, (Driver), p. 341, (Connellan), p. 385, (Paine), pp. 414, 420, (Chisholm), pp. 452, 464, (Gobbo), p. 740.

20. Thalia Anthony, 'Submission to the Senate Legal and Constitutional Committee Inquiry into Stolen Wages', Submission no.17, 27 July 2006, p. 4: <www.aph.gov.au/senate/committee/legcon_ctte/stolen_wages/submissions/sub17.pdf> (20 March 2007).

21. L.W. Loveless (Director of Social Services), NT Natives, Memorandum to Director-General, Department of Social Services Melbourne, 24 July, 1952, National Archives of Australia (Canberra): A885, B456 Part 2.

22. C.M. Berndt, 'A Northern Territory Problem: Aboriginal Labour in a Pastoral Area', University of Sydney, 1948, reproduced in Frank S. Stevens, Equal Wages for Aborigines: the background to industrial discrimination in the Northern Territory of Australia, Aura Press, Sydney, 1968, pp. 42–43.

23.Transcript (Morley), pp. 229, 235.

24. Stevens Equal Wages for Aborigines, p. 9. However transcripts understate this figure by claiming many dependants of stockworkers were unproductive: Transcript (Gobbo/Kirby CJ), p. 537, (Kerr), p. 428.

25.Transcript (Driver), p. 304; Ann McGrath, 'Born in the Cattle': Aborigines in Cattle Country, Allen & Unwin, Sydney, 1987, p. 52.

26.Transcript (Baillieu), p. 726, (Bladwell), p. 753. However, they went 'walkabout' during the unproductive wet season: Transcript (Severin), pp. 265–266.

27. These were not adjudicated as the Commission determined it did not have jurisdiction.

28. See: Michael Hess 'Black and Red: the Pilbara pastoral workers' strike, 1946', Aboriginal History, vol. 18, no. 1, 1994, p. 66.

29. Quoted in Charlie Schultz and Darrell Lewis, Beyond the Big Run: Station life in Australia's Last Frontier, University of Queensland Press, Brisbane, 1994, p. 126.

30. C.L.A. Abbott, 'Report of Debates' in Conference of Representatives of Missions, Societies, and Associations Interested in the Welfare of Aboriginals to Consider the Report and Recommendations submitted to the Commonwealth Government by J.W. Bleakley Esq., Department of the Interior, Melbourne (1929), National Archives of Australia (Canberra): CRS A1 item 33/8782, p. 20–21.

31.Transcript (Brodney), pp. 304, 328.

32.Transcript (Morley), p. 230.

33.Transcript (Baillieu), pp. 727–728.

34. Peter d'Abbs, Interview with Harry Giese (1994), Northern Territory Archives Service, NTRS 226, TS 755, p. 1.

35.Transcript (Morley), p. 216; Tony Austin, 'Looking Back', in Val Dixon (ed.), Looking Back, Historical Society of Northern Territory, Darwin, 1988, p. 92.

36. Peter Sing and Pearl Ogden, From Humpy to Homestead: the Biography of Sabu, P. Ogden, Darwin, 1992, p. 68; Berndt, 'A Northern Territory Problem', p. 53; Transcript (Connellan), p. 381, (Connellan/ Kirby CJ), p. 405. Some witnesses explained that under-payment of Indigenous workers may have reduced their inclination to work: Transcript (Kerr), pp. 179A, 641–643, (Chisholm), pp. 463, 472. Brodney pointed out that reluctance to work was overcome through an incentive scheme: Transcript (Brodney/Schmidt), p. 903.

37.Transcript, p. 330.

38.Transcript, p. 17.

39.Transcript (Severin), pp. 280–281; J.H. Kelly, Report on the Beef Cattle Industry in Northern Australia, Bureau of Agricultural Economics, Department of Commerce and Agriculture, Canberra, 1952, p. 51.

40.Transcript, p.863. Also see: Transcript (Severin), p. 294, (Chisholm), p. 445A.

41.Transcript (Connellan), p. 378, (Paine), p. 420A, (Baillieu), p. 656, (Bladwell), p. 753.

42.Transcript (Severin), p. 272; Also see: Transcript (Driver), pp. 316–317, (Forbes), p. 483, (Morley), p. 203, (Brodney/Morley), pp. 244–245.

43.Transcript (Connellan), p. 378, (Paine), p. 420A, (Baillieu), p. 656, (Bladwell), p. 753.

44.Transcript (Paine), p. 420.

45.Transcript (Baillieu), pp. 727–8, 755, 773, (Baillieu), p. 661, (Morley), p. 259.

46.Transcript (Severin), p. 293, (Connellan), p. 391, (Chisholm), pp. 454–455, (Baillieu), pp. 728–729, (Bladwell), p. 755.

47.Transcript (Baillieu), p. 658.

48.Transcript (Morley), pp. 221, 239.

49.Transcript (Kerr), p179A, quoting the report of the Select Committee on Social Welfare Legislation, Presented to the Legislative Council for the Northern Territory, 12 May 1964.

50. Berndt, 'A Northern Territory Problem', p. 43.

51. Transcript (Connellan), p. 392, (Morley), p. 217.

52.Professional Engineers Case No.1 (1961), 97 Commonwealth Arbitration Reports (CAR) 233, p. 325.

53. John Kerr, 'Work Value', Journal of Industrial Relations, vol. 6, no. 1, 1964, p. 2.

54. Jack Hutson, Six Wage Concepts, Amalgamated Engineering Union, Sydney, 1971, p. 162.

55.Transcript (Driver), p. 338. See also: Transcript (Baillieu), p. 734, (Gobbo), p. 740.

56.Transcript (Kerr), p. 182.

57.Transcript (Kerr), p. 637.

58.Transcript (Kerr), p. 179.

59.Transcript (Kerr), p. 646.

60.Transcript (Kerr), pp. 177, 800, (Driver), p. 335.

61.Transcript (Schmidt), p. 888.

62.Transcript (Kerr), p. 646.

63. See: Transcript (Driver), pp. 335–356; Russell McGregor, 'Wards, words and citizens: A.P. Elkin and Paul Hasluck on assimilation', Oceania, June 1999, p. 247; Russell McGregor, 'Avoiding "Aborigines": Paul Hasluck and the Northern Territory Welfare Ordinance, 1953', Australian Journal of Politics & History, vol.51(4), 2005, pp. 513–529.

64. The Commission also adopts this term: The Commonwealth Conciliation and Arbitration Commission, In the matter of the Conciliation and Arbitration Act 1904–1965 and of The Cattle Station Industry (Northern Territory) Award, 1951, Nos. 397 and 553 of 1950 (C No. 830 of 1965), 71 CAR 319 (hereafter Decision), p. 664.

65. Cited in Anthony Moran, 'White Australia, Settler Nationalism and Aboriginal Assimilation', Australian Journal of Politics & History, vol. 51, no. 2, 2005, p. 188; 'Record of Native Welfare Conference, 1951', pp. 4, 20–1, Hasluck Papers, Box 33, cited in McGregor, 'Wards, words and citizens', p. 216.

66. See: Frank Hardy, The Unlucky Australians, Nelson, Melbourne, 1968.

67. See Portus, Direction No. 397/180, p. 2.

68. Julie Wells, The Long March: Assimilation Policy and Practice in Darwin, the Northern Territory, 1939–1967, PhD thesis, Faculty of Arts, University of Queensland, 1995, pp. 84–85.

69.Ibid.

70. Blanche d'Alpuget, Mediator: A Biography of Sir Richard Kirby, Melbourne University Press, Carlton, 1977, p. 179.

71.Transcript (Brodney), p. 7.

72. Kirby CJ, Direction No. 830 of 1965; Transcript, p. 671.

73.Transcript (Severin), p. 268. Thus, one 'white worker' was worth two Aboriginal workers: Transcript (Kerr), p. 429, (Schmidt), p. 889.

74.Transcript p. 5, (Bladwell), p. 753.

75.Transcript (Connellan), p. 386.

76.Transcript (Schmidt), p. 920. Other pastoral employers paid 'white' workers £15/week: Transcript (Bladwell), p. 774, (Baillieu), p. 736.

77.Transcript (Driver), p. 312.

78.Transcript (Kerr), p. 653; Also see: Transcript (Kerr), p. 532.

79.Transcript (Kerr), p. 179, quoting the report of the Select Committee on Social Welfare Legislation, Presented to the Legislative Council for the Northern Territory, 12 May 1964.

80. See Transcript (Kerr), pp. 611–612.

81.Transcript (Morley), pp. 214, 218.

82. Emphasis added. Transcript (Morley), p. 218 Also see: Transcript (Severin), p. 271.

83.Transcript (Connellan), p. 389.

84.Ibid.

85.Transcript (Chisholm), p. 453.

86.Transcript (Connellan), p. 403, (Morley), p. 229.

87.Transcript (Morley), p. 230.

88.Transcript (Schmidt), p. 905, (Morley), p. 230, (Kerr), p. 197.

89.Ibid.

90.Transcript (Morley), 241.

91. Emphasis added. Transcript (Kerr), p. 197.

92.Transcript (Morley), p. 253.

93.Transcript (Baillieu), p. 676.

94.Ibid., pp. 676–677.

95.Ibid., p. 677. Also see: Transcript (Morley), pp. 217, 233.

96.Transcript (Kerr), p. 197.

97.Transcript (Kerr), p. 432.

98.Transcript (Kerr), p. 193.

99.Transcript (Morley), pp. 209, 241, (Chisholm), p. 453.

100.Transcript (Kerr), pp. 193–194.

101.Transcript (Forbes), p. 498.

102.Transcript (Kerr), p. 619.

103.Transcript (Kerr), p. 528.

104.Transcript (Forbes), p. 485, (Kerr), p. 550, 799, (Baillieu), p. 688–9.

105.Transcript (Kerr), p. 148. Also see: Transcript (Morley), p. 228, (Kerr), pp. 611–612, (Chisholm), p. 444, (Baillieu), p. 688.

106.Transcript (Kerr), pp. 150–151.

107.Transcript (Morley), p. 236, (Forbes), p. 497.

108.Transcript (Morley), p. 213, (Driver), p. 310.

109.Transcript (Morley), p. 216.

110.Transcript (Chisholm), p. 453, (Severin), p.293, (Paine), p. 421.

111.Transcript (Kerr), pp. 157, 427, 611–612, (Morley), p. 240, (G. Stoll, Superintendent, Hermannsburg Mission), pp. 367, 374.

112.Transcript (Kerr), pp. 586–587, 608–611, citing articles from Oceania published in the early 1960s (references not provided in transcript).

113. Emphasis added. Transcript (Kerr), p. 172 – paraphrasing, Pastor Albrecht (Hermannsburg Mission), The Aboriginal Pastoralist Scheme and Experiment Review. Also see: Transcript (Kerr), pp. 175–176, (Paine), p. 419.

114. See Transcript (Driver), p. 310, (Morley), p. 217.

115. This included initiation ceremonies for young boys: Transcript (Baillieu), p. 717, (Bladwell), p. 768.

116.Transcript (Kerr), p. 156.

117.Transcript (Morley), p. 218. Also see: Transcript (Severin), p. 268.

118.Transcript (Driver), p. 344.

119.Transcript, p. 189.

120.Transcript (Kerr), p. 156.

121.Transcript (Kerr), pp. 792, 463, 550, 603, 643.

122.Transcript (Kirby CJ / Kerr), p. 795. The Commission reiterated this position in: Decision, p. 656.

123.Transcript (Kerr), p. 803.

124.Transcript (Kerr), pp.148, 156, 158, 429.

125.Transcript (Driver), pp. 338–340.

126.Transcript (Driver), p. 341.

127. See: Transcript (Baillieu), p. 746, (Morley), p. 229, (Connellan), p. 405.

128.Transcript (Kerr), p. 197A.

129.Transcript (Connellan), p. 379/80.

130.Transcript (Bladwell), p. 771.

131.Transcript (Kerr), pp. 426, 541.

132.Transcript (Paine), p. 423.

133.Transcript (Chisholm), p. 470. Also see: Transcript (Baillieu), p. 661.

134.Transcript (Chisholm), p. 455.

135.Transcript (Bladwell), p. 760.

136.Transcript (Baillieu), p. 655. Also see: Transcript (Kerr), pp. 643, 791, 799.

137.Transcript (Kerr), pp. 145–146.

138.Transcript (Kerr), p. 538.

139. John Kerr, 'Final submission in 1965 Proceedings', cited in: John Kerr, 'Reflections on the Northern Territory Cattle Station Industry Award Case of 1965 and the O'Shea case of 1969', ch. 8, Arbitration in Contempt, The Proceedings of the Inaugural Seminar of the H R Nicholls Society held in Melbourne, 28 February - 2 March, 1986: <www.hrnicholls.com.au/nicholls/nichvol1/vol18cha.htm> (20 March 2007).

140.Transcript (Connellan), pp. 379/80, 389, (Chisholm), p. 462, (Kerr), p. 650, (Schmidt), p. 865.

141.Transcript (Bladwell), p. 758, Transcript (Driver), p. 305.

142.Transcript (Kerr), pp. 647–8, 666, (Baillieu), pp. 664–666, (Bladwell), pp. 762–764.

143.Transcript (Kerr), p. 145.

144.Transcript (Kerr), p. 533.

145.Transcript (Kerr), pp. 550, 619, 644. Also see: Transcript (Driver), p. 343.

146.Transcript (Kerr), pp. 193, 569.

147.Transcript (Kerr), p.180.

148.Transcript (Kerr), p. 182.

149.Transcript (Gobbo), p. 290.

150.Transcript (Gobbo), p. 254.

151.Transcript (Gobbo), p. 747.

152.Transcript (Gobbo), p. 188.

153.Transcript (Brodney), pp. 7–8.

154. d'Abbs, Interview with Harry Giese, p. 9.

155.Transcript (Brodney), pp. 641–643.

156.Transcript (Brodney/Schmidt), pp. 893–4. Also on station prosperity see: Transcript (Brodney/Baillieu), p. 699, (Brodney/Driver), p. 328, (Connellan), p. 394/5.

157.Transcript (Brodney/Schmidt), pp. 914–915, (Brodney/ Baillieu), pp. 687–688.

158.Transcript (Brodney), p. 683.

159.Transcript (Brodney), p. 698A.

160.Decision, p. 661.

161. See: Transcript (Kirby CJ), pp. 846–847.

162.Transcript (Kirby CJ), pp. 608–612. See similar position stated by Senior Commissioner Moore: Transcript, p. 291.

163.Transcript (Kirby CJ), p. 612.

164.Transcript (Kirby CJ), p. 683.

165. Emphasis added. Decision, p. 663.

166.Decision, p. 664.

167.Decision, p. 659.

168.Transcript (Kirby CJ), p. 536.

169.Decision, p. 671.

170.Decision, p. 666.

171.Decision, p. 669.

172.Decision, p. 671.

173.Transcript (Bladwell), p. 754, (Bladwell), p. 772. Also on Indigenous workers worthy of the Award, see: Transcript (Morley), pp. 234, 259, (Kerr), pp. 559, 594, 643. The Commission puts this more conservatively as 20–25 per cent: Decision, p. 653. Berndt claimed more workers were worthy of Award wages than the pastoralists and the Commission admitted: Berndt, 'A Northern Territory Problem', p. 42.

174. For example, Pompi: Transcript (Severin), p. 278; Chubitty: Transcript (Driver), p. 310; Paddy Jagamarra, David Jabaljari, Johnny Lynch and Multa: Transcript (Connellan), pp. 379–384; Transcript (Paine), p. 421.

175.Decision, pp. 665, 667, 670.

176.Decision, p. 671.

177.Decision, p. 657. See: The Cattle Station Industry (Northern Territory) (Amend 1951), No. 635 of 1968.

178.Decision, p. 657.

179. Daryl Lewis, A Shared History: Aborigines and White Australians in the Victoria River District, Northern Territory, Create-a-Card, Darwin, 1997, p. 11.

180.Decision, p. 668.

181. See: 'LHMU joins Gurindji people for 40th anniversary of Freedom Day' 23 June 2006 <www.lhmu.org.au/lhmu/news/2006/1151034720_28281.html> (20 March 2007).

182. Vincent Lingiari, Pincher Manguari, Gerry Ngalgardji and Long-Johnny Kitgneari, 'The Original Wave Hill Mob Letter of 1967', 10 April 1968: <http://bar.austlii.edu.au/au/journals/AboriginalLB/1986/41.html> (20 March 2007).

183. William Deane, 'Some Signposts From Daguragu: The Inaugural Lingiari Lecture Delivered by, Governor-General of the Commonwealth of Australia', At the invitation of the Council for Aboriginal Reconciliation', Darwin, 22 August 1996, Indigenous Law Resources, <www.austlii.edu.au/cgi-bin/disp.pl/au/other/IndigLRes/car/1996/2208.html?query=conciliation%20and%20arbitration%20and%20equal%20and%20cattle%20and%20union%20and%20aboriginal> (20 March 2007).

184. Berndt, 'A Northern Territory Problem', p. 42.

185. Hardy, The Unlucky Australians.

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