Inside Story

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Sir Richard Kirby believed that the decision to grant equal pay to Aboriginal stockmen and station hands in the Northern Territory would be seen as “the greatest contribution” he and other members of the Commonwealth Arbitration Commission had made to Australian society.

Four decades later, Noel Pearson, that outstanding Indigenous intellectual, nominated the decision as the first of three factors that contributed decisively to the Indigenous “descent into hell.” (Social security income and the right to enter pubs and drink alcohol were the other two; together, Pearson believes, they helped entrench the notion that Aborigines should be regarded as, and should accept the role of, “victims.”)

And earlier this year, Inside Story chose “the fateful equal pay decision in the pastoral industry” as one of the “landmark events” of 1966 worthy of revisiting in this special fiftieth-anniversary series.

But how many of today’s readers, I wonder, recall the case and share either Kirby’s or Pearson’s estimate of its importance?

A personal perspective

Unusually, I write as one who took part in most of the case, as junior counsel to John Kerr QC for the pastoralists. Returning to it after fifty years, I was astounded at how differently I now see and understand it. Why such a difference?

It didn’t take long to realise that the difference lies in what else is now in my head. When I received my brief early in 1965, I was already forty-two, about to become a QC, with some record as a participant in public debate and probably widely accepted as a “socially aware” person. Yet my knowledge of Aborigines, of Aboriginal history, of what we regard today as Aboriginal issues – let alone of Aborigines on cattle stations – was for all practical purposes zero.

I could remember having met one Aborigine in my life, a young man assigned for legal aid to an inexperienced young barrister. He declined to speak to me; fortunately, I managed to achieve an acquittal, but my knowledge of Aborigines had barely advanced.

Dramatis personae

There was nothing exceptional about my ignorance in 1965. It was shared by all of the eight professionals whom the machinery of industrial arbitration had assembled to process the equal pay claim. Among us were allotted the official roles of framing, lodging and presenting the claim, offering evidence and argument in support of or against it, and deciding what orders the commission should make.

We were all lawyers – white lawyers (there were no Aboriginal lawyers then). Three, who would jointly decide the case, were full-time salaried members of the commission. They had been specially constituted as a bench of three under the chairmanship of the president, Chief Judge Kirby, because the case was considered of special importance.

The applicant, the North Australian Workers’ Union, was represented by the very experienced, if sometimes eccentric, solicitor for the Australian Council of Trade Unions, Alfred Tennyson (“Bob”) Brodney. The federal government itself appeared in the case through barrister Ted Woodward, assisted by James Gobbo (although Ted dropped out early).

The employers, the cattle station owners, were represented by John Kerr QC and me. John was then fifty-one, a leader of the Australian legal profession and a distinguished silk of thirteen years’ standing, at the height of his advocacy powers.

Where did we get our “facts”?

All eight of us shared expertise in industrial arbitration processes; that was the reason we had been given our roles. All of us shared an ignorance of Aboriginal culture, Aboriginal history and, not least, Aboriginal work and conditions on cattle stations or elsewhere. In this we were typical not merely of the industrial bar but of the Australian community. Remember that the internet was over twenty years away, not even imaginable, and the encyclopedias uninformative on contemporary Aborigines.

We would all learn what we needed to know as we went along. Unless some piece of information is contested or critical to decision-making, an arbitration hearing is not too fussed about where its information comes from. But like most of our adjudicatory systems, it expects a party that wants it to base its decision on a contested factual basis to prove the facts at issue.

So, for the purposes of the case, the facts would be what was accepted as common ground between the parties, plus whatever additional facts one of the parties could persuade the tribunal to accept. In any field, what is acceptable as common ground may vary from time to time, most often as a result of new events or new research or discovery, but sometimes as a result of suppression, deliberate or otherwise.

Sometimes, there can be a collective forgetting of what is too painful to remember, or too inconsistent with a version of the facts on which a society wants to base its national image, or its power, property or privilege arrangements. Australia has encountered such problems in remembering and accepting what happened as the country changed from being owned, occupied and governed by Aboriginal people to being basically owned, occupied and governed by invaders from overseas.

The Great Australian Silence

The equal pay case was lodged on 21 January 1965 and litigated during that year, with decision given on 7 March 1966. This was two years before the anthropologist W.E.H. Stanner, in the 1968 Boyer Lectures After the Dreaming, would name, describe and expose the “Great Australian Silence.” The term referred to a silence that had become a cultivated ignorance about the effect of the white invasion, occupation and dispossession of the Australian Aboriginal homeland. Stanner traced its evolution as a “cult of disremembering,” or a “cult of forgetfulness practised on a national scale.”

The equal pay case was one of the last official performances of the Great Australian Silence. From today’s vantage point, I can see that there was so much that someone involved didn’t know, didn’t want to know or, in the case of the Aborigines, had no opportunity to tell. Soon thereafter, the unravelling of the Great Silence commenced in earnest, and is still proceeding after nearly fifty years (see Bruce Pascoe’s recent book, Dark Emu, Black Seeds: Agriculture or Accident?, for example). Noel Pearson, whose damning verdict on the decision I have quoted, was doubly protected from the Great Australian Silence by being born an Aboriginal into an Aboriginal community, and being educated in the white community at a time when the Silence was being dismantled.

The employers’ perspective

John Kerr and I, who were responsible for the only significant evidence presented to the commission, had no such protections. We were products of the Silence. Moreover, we were briefed as advocates to put the employers’ views.

So we met with a group of cattle station executives to get instructions as to the case they wished us to prepare and present. They were a mixed group, led by the aristocratic Peter Baillieu from Melbourne, representing Brunette Downs, and Peter Morris, who was the general manager of the Vestey stations. An active member of the group was Eddie Connellan, the founder of Connellan Airways and owner of a station near Alice Springs, and there were others less famous.

They told us that, generally speaking, the Aborigines in question lived on the stations. There, they worked as members of small communities that were remnants of the tribe or group that had once occupied the land now leased to the station owners by the government. Although the Aborigines had no legal title to the land, it meant a great deal to them to remain on it, which had created a fortunate synergy with the seasonally fluctuating need of the owners for labour to develop and run the cattle stations.

Up to this time, Aborigines had been excluded from the award, leaving any regulation of their employment to the Commonwealth, acting through its Northern Territory Administration. Meaningful, precise comparison between the outcomes of the two systems was difficult, one reason being, as Nugget Coombs later put it, that adopting the award meant “replacing an ill-defined (but widely understood) obligation on the pastoralists to provide modest support for a whole Aboriginal group in return for the labour of a few, with a precise and larger, but limited, obligation towards the individuals actually employed.” Moreover, money rarely seemed to change hands between owners and Aborigines because nearly every transaction became an offset in the station accounts, as did social service payments paid by the Commonwealth through the employers. I never did get to understand the system and I was relieved when the union limited the issues in a way that made the whole matter of current rewards and conditions irrelevant.

The employers agreed that some 20 to 25 per cent of the Aboriginal stockmen could perform their duties at the standard expected of normal (that is, white) employees, and that they should come under the award in the usual way.

Emphasising that they were opposed to any discrimination on racial grounds, the employers wished to argue that the remaining 75 to 80 per cent were unable to provide normal work value because of their stage of cultural or educational development. Preferably, they should not be brought under the award at all, but if they were, they should have special lower-paid classifications that recognised their lower work value.

The employers agreed that some Aborigines became very skilful in riding horses and working cattle, particularly if they went into cattle camps at an early age. But they argued that great tribal and cultural obstacles prevented most from becoming satisfactory workers in an industrial sense.

The traditional Aboriginal culture, according to the pastoralists, was one of hunting and gathering, in which the role of work was simply to achieve immediate satisfaction of some need. Once that need was satisfied, there was no point in continuing work, for example to accumulate food or other resources. After all, food could not be preserved, stored or transported during the nomadic wandering of the hunter-gatherer. Hence, Aboriginal culture didn’t value work for more than immediate needs. Many Aboriginal workers could not be relied on to continue working unless under immediate supervision.

Further difficulties arose from the fact that Aboriginal languages had no or very limited concepts of numbers, counting, mathematical accuracy, time or distance.

The pastoralists’ argument clearly assumed that Aborigines, like other “primitive” peoples, were at a lower stage of social evolution, and the aim was to hasten their ascent of the evolutionary ladder. The other parties and the members of the Arbitration Commission were comfortable dealing with issues on this basis. The idea meshed with the official federal government policy that assimilation was the future for Aborigines, a policy that was not questioned by the union or the employers, though the commission’s judgement would show that it was aware that a change to “integration” was being mooted.

Movement at the station

The employers feared that if they were required to provide award rates and conditions for all members of the stations camps whom they employed, the camps would close.

They conceded that the availability of the local pool of Aboriginal labour had been essential to the existence and development of the stations; but the situation was changing. This was partly for economic reasons, with government funding for infrastructure and private investment for internal development more readily available, and partly because of the availability of new technology.

New roads, and road trains, reduced the demand for drovers. New fencing techniques reduced the need for boundary riding, and what remained could be performed by motorcycle or helicopter. These two forms of transport could also revolutionise mustering, the activity in which the Aborigines’ horsemanship, tracking skills and knowledge of country had been particularly useful.

In the station homesteads, labour-saving devices such as washing machines, dishwashers and vacuum cleaners were reducing the need for domestic labour.

Other changes would make it easier to attract from outside the area the much reduced quantity of labour required to work a station, a quantity that fluctuated considerably over a year. These included faster and more frequent travel services, as well as the technological developments that made station life and work less onerous and more attractive.

If the station camps closed, the employers thought that many of the 20 per cent who were offered award employment would elect to leave for government settlements with the rest of their community. In the view of the employers, life on these settlements – “a life of handouts” – would not offer a satisfactory future for the station communities, and would give rise to many social problems. It would not be as conducive to assimilation as work on the stations.

Moreover, a general movement into government settlements would likely mean that the Aborigines left their traditional lands, which, the pastoralists said, would be very distressing to these people who felt themselves part of it.

The issues

Now that we understood our clients’ position in relation to the union’s claim, it was possible to define the issues to be litigated.

The union had already made it clear that it would call no evidence. Indeed, it had sought to have the case decided quickly and cheaply in Melbourne as a matter of principle, without evidence taken from any party. The commission had rejected this in favour of the owners’ submission that it should go to the Northern Territory, visit selected cattle stations, and take oral evidence offered by the parties. Following this ruling, the union had indicated it would still argue the case as simply a matter of principle, and would not produce evidence.

This greatly limited the possible range of issues in the case. It meant that the union wouldn’t be making submissions critical of the existing conditions under which Aborigines were employed by the pastoralists, and that we would not need to explore these conditions. On their side, the pastoralists weren’t arguing that any Aborigines brought under the award should not be entitled to the same standards of accommodation, food and other prescribed conditions as white employees. Again, there was no reason to explore current conditions on the stations.

On previous occasions, the Commonwealth had resisted bringing Aborigines under the award, preferring to retain administrative control of their rates and conditions. But it was now sensitive to the strength of international and national opposition to racial discrimination and had been engaged in reviewing all its laws in that light. It desired that Aborigines be brought under the same award as white workers, and professed its willingness to take responsibility for dealing with any problems that might arise as a result.

Preparing the pastoralists’ case

It now appeared that neither the union nor the Commonwealth proposed to raise any issue that would require evidence from our clients, and that there were only two significant issues on which we needed to produce evidence. One was the pastoralists’ contention that cultural and educational factors meant that many Aborigines in the station camps were unable to work in the way, and to the standards, accepted as normal in the community. Obviously the main source of such evidence would be people experienced in working with and supervising the Aborigines concerned.

The other was the likelihood that too extensive an application of the award might well result in the closing of the station camps and the movement of the station communities into government settlements. Again, the type of witness required was obvious: the owners and managers who would make such decisions.

The task of preparing the pastoralists’ case for presentation fell to me. The pastoralists’ committee provided me with a list of suggested witnesses in the two (often overlapping) categories we had identified, and of stations where the commission might conveniently be taken to provide some background for understanding the evidence.

I took statements from suggested witnesses who were accessible from Sydney, and also visited the Territory. A very small plane, complete with pilot, was placed at my disposal, and I spent a week travelling around the stations proposed for visit in the Alice Springs and Barkly Tablelands districts, interviewing and taking written statements from owners, managers and foremen. All agreed with the general account given by the instructing committee, and could flesh it out with their own anecdotes, experiences and opinions.

As those giving us our instructions had suggested, I found what seemed a very genuine and widespread regret among the witnesses that there was a real risk of a future in which the traditional camps on the stations would be no more. Many had spent years working closely with Aborigines in the camps and had a genuine respect and affection for them. Rarely, if ever, did they regard Aborigines as their equals; nor did they regard them as having any legal claim on the stations. But they were keenly aware how painful it would be for them to be separated from their traditional lands, and didn’t want it to happen.

Using the statements I had obtained as guides, additional statements were obtained from other witnesses by officers of pastoral organisations or by correspondence. We thus built up a network of potential witnesses with experience representative of cattle stations across the whole Territory.

We knew that our witnesses would not be directly contradicted, but they could be attacked in cross-examination and argument. They were all vulnerable to the criticism that they were giving evidence in their own interests. I therefore looked around for some independent support. Similar “cultural” problems had been recognised in various official documents, national and international, and these were collated as exhibits.

No research on cattle stations by anthropologists had been published or was referred to, although, as I learnt years afterwards, some had been carried out. But there were works of a general nature on Aborigines, and it was to these I turned. The standard work was The Australian Aborigines by A.P. Elkin, and here I struck gold in terms of scientific support for my clients’ case about Aboriginal approaches to work. After the case was over, Stanner read the relevant transcript and wrote:

I was surprised to discover… just how conservative, capitalistic and favourable to long continued paternalism the writings [of anthropologists] seemed to be under counsel’s artful presentation. One could almost draw the conclusion that the writers had known in advance, in one case by as much as twenty years, what the pastoralists’ case would be, and decided to be helpful.

What Stanner sought to dismiss as “counsel’s artful presentation” was also the way the commission read the plain words of the anthropologists.

The hearings

Over the second half of 1965, the commission heard evidence, followed by the addresses of counsel. The evidence occupied thirty days. It was taken in Sydney, Darwin and Alice Springs, and on three cattle stations in the Alice Springs district and three in the Barkly Tablelands district. To assist the commission understand the oral evidence, in accordance with common industrial practice, the visits included opportunities to inspect working sites and observe examples of work performed.

Although the commission didn’t visit them, the pastoralists also called witnesses from six other stations in the Alice Springs district, eleven in the Victoria River district, seven in the Barkly Tablelands district, and six in the Darwin Gulf district. Altogether, there was specific evidence from about thirty-six stations from all parts of the cattle country.

The union called no evidence at all, and the only witness called by the Commonwealth was the director of welfare in Darwin, whose evidence did not play a significant role in the proceedings. The result was that there were no Aboriginal participants in the proceedings, whether as parties, witnesses, advocates or adjudicators.

Counsel’s addresses

The counsel delivered their addresses in Melbourne over sixteen days in December 1965. I was not present, but as part of my duties as junior counsel I had prepared comprehensive notes for my leader, supported by references to the transcript, exhibits and any other required material. By all accounts, John Kerr’s address was an outstanding performance. Kirby later spoke of the employers’ “magnificently well-presented case.”

The union advocate declined to engage with the employers’ case in any significant way, asserting that the commission should throw both the Aborigines and their white employers “into the water and let them swim.”

The Commonwealth, anxious to complete its self-imposed task of removing legal discrimination against Aborigines, submitted that the commission should remove the exclusion of Aborigines, but allow a lengthy period before the amendment commenced, so that both employers and Aborigines would have time to prepare for the changes.

Most importantly, the Commonwealth undertook that if any problem of “native welfare,” whether of employees or their dependants, arose, it would deal with the consequences.

The decision

The commission gave its decision on 7 March 1966. In a judgement of some 14,000 words, the commission seriously and thoroughly discussed the evidence and arguments that had been put to it, mainly, as I have pointed out, on behalf of the pastoralists. As Kirby told his biographer, “The NAWU’s sporadic, hit-run presentation meant that we on the bench had to do a lot of thinking for the union.”

Those who knew the members of the commission could see that the judgement bears the patient, painstaking hand of deputy president John Moore. It weaves its way through sometimes abstruse and dated arguments about the nature of the commission’s jurisdiction and what can now be seen as ill-informed speculation about the likely reaction of Aborigines and pastoralists.

There is a self-consciously heroic touch in the judgement: “We do not flinch from the results of this decision which we consider is the only proper one to be made at this point in Australia’s history. There must be one industrial law, similarly applied, to all Australians, Aboriginal or not.”

The commission accepted the pastoralists’ uncontradicted evidence about the limited work value of many of the Aboriginal station workers, but it refused as a matter of principle the pastoralists’ primary applications to refrain from extending the award to include Aborigines, or to create special classifications for those of inferior work value.

Although the commission accepted the likelihood that some disemployment might occur, it thought, for reasons it developed at length, that it might not be as serious as the employers suggested.

Those who argue that the commission should have adopted the employers’ proposal, in order to preserve the Aborigines’ station camps with their assured employment, accommodation and liquor prohibition, might ponder these perceptive words from the judgement:

Even if implementation of the employers’ proposals led to the retention of all Aborigines on cattle stations, the proposals have in them the germ of a second-class workforce. It is at least possible that for many years individual Aborigines would remain in the categories suggested by the employers and this, together with isolation and distance, would impede rather than help assimilation or integration. The employers made it plain that, although the words used in their claim would permit it, they would not apply the lower-paid categories to white employees. In the result the award would have special provisions which applied only to Aborigines and which would tend to keep them economically depressed. We consider that overwhelming industrial justice requires us to put Aboriginal employees in the Northern Territory on the same basis as white employees. The law which prevails for white employees in this industry should also prevail for Aborigines.

Why no Aboriginal witnesses?

It may help to understand the reaction to the decision if we first discuss a question that many readers may be asking and which puzzled most of us taking part: “Where were the Aborigines whose future was at stake?”

Hardly ever were any in court even to observe proceedings. A rare crowd at an Alice Springs hearing, voicing their anger when they heard their work skills downgraded, has managed to make the historical record. However, as another chance record shows, their attendance was organised by a visiting activist from the south on her own initiative.

In those days, no Aborigines were qualified to play a professional role in the proceedings, but surely the union representative would have had some in court to consult about factual issues or call as witnesses? Surely, for example, there would be Aboriginal witnesses to respond to the evidence about lower work value? It would, one imagined, have been simple, and virtually cost-free, to call one when the commission visited a station, but it never happened.

In the absence of any explanation of the lack of Aboriginal participation, the rumour mill went to work, inventing cynical explanations of the union’s involvement. Even forty years later, Ted Woodward, who had been involved as senior counsel for the Commonwealth, could write in his autobiography that the union’s “motives were suspect.” He pointed out that until 1962 it hadn’t accepted Aboriginal members. “Three years later,” he writes, “some Aborigines having joined, a claim was being made, purportedly on their behalf, without any apparent consultation. It looked very much as though the white members of the union wanted to get rid of a wages provision, which, in their view, led to unfair competition by Aboriginal workers.”

As recent historians have shown, this was incorrect and unfair to the North Australian Workers’ Union, which had runs on the board in championing Aboriginal members, including an unsuccessful High Court action on behalf of an Aboriginal activist who was banished from Darwin to Haasts Bluff (“a place as far removed as possible,” as the NT Administration boasted) because he had participated in strike activity in another industrial setting (Waters v. The Commonwealth [1951]). The apparently mysterious changes in policy had reflected the changing fortunes in a battle between different factions for control of the union.

In making the equal pay claim, the union was in fact responding to ACTU Aboriginal policy, which, since 1963, had said bluntly, “There must be an end to wage discrimination.”

How did this become ACTU policy? The credit must go mainly to communist activists, working through the Melbourne-based Council for Aboriginal Rights and the Northern Territory Council for Aboriginal Rights, and enlisting the Equal Wages for Aborigines Committee of the Federal Council for Aboriginal Advancement. The outstanding contributor to this and other campaigns for Aboriginal advancement was a Melbourne research chemist, Shirley Andrews. (The writer Frank Hardy was, of course, a better-known communist supporter, but he became involved only after the equal pay decision had been given, and in different ways.) As well as being a researcher, advocate and campaigner, Andrews was a thinker, as this (edited) comment years later illustrates:

I always felt that we made a mistake pressing just for equal pay on the cattle stations because we should have realised that what was needed was something different where the Aboriginal people, a whole group of them, you know were paid en masse or something and then they decided what was to be done with the money. Because what happened was that [the pastoralists] got rid of everyone except their very skilled workers, when they were required to pay better pay. You can sometimes think you’re doing the right thing and you don’t understand all the factors being so much more complicated, particularly for city slickers.

Although there is no doubt that the proceedings were genuinely taken with the aim of getting better wages for Aborigines, it should be acknowledged that the union faced difficulties. It had very few Aboriginal members and little means of communication over the vast and often remote area where its potential members were spread. It employed its first Aboriginal organiser in 1965. But these were not the vital factors.

Bob Brodney, the ACTU solicitor who appeared for the union, was heavily questioned about not calling witnesses, at a seminar on Aboriginal employment held some three months after the decision was given. He conceded that he had been asked personally, “almost inundated with suggestions and requests,” publicly challenged by counsel for the employers and generally pressed very hard, to call Aborigines; he had even received an offer to pay the cost. But, he said:

I exercised my judgement against it… I could not see that they proved my case… [T]he union’s case was not to prove that all Aborigines could do certain work… The Award set out what the demands of the job were and the employer is free to hire. The case for the union was: let the Award apply, and those employers who wish to employ Aborigines will have to do so under award conditions.

This was a perfectly logical position, one that Brodney had acted on from the beginning, when he argued that the award should be extended as a matter of principle. He clung to his position to the end, and he won his point: at the end of the day, the award was extended. But by the end of the case, other issues had arisen, to which Aboriginal capacity was relevant. If 75 per cent of Aborigines could not perform to the required standard, should additional lower classifications be added for them? Should it be easier to invoke the “slow worker” category?

Moreover, even if Brodney were right (as he turned out to be) in thinking that the evidence about limited work capacity would not affect the extension of the award, it had angered those Aboriginal workers who had learnt of it. They wanted a chance to hurl it back in the face of their critics. If they had known that, unanswered, it would lead to a finding adverse to their dignity recorded forever in the judgement of the commission, they would doubtless have become even angrier, as they did when this eventuated. They should have been at least offered an opportunity to give evidence in reply. But the fact is that Brodney was not appearing for Aborigines but for the union, and doubtless had its authority to decide what he should do. Aborigines were simply not represented.

Someone who had other ideas was James Gobbo, counsel for the Commonwealth. He thought that the Commonwealth, intervening in the public interest, should call some Aboriginal evidence so that the commission would understand the system they were being asked to perpetuate. But he was instructed that there was no stockman suitable for the daunting task of giving evidence and being cross-examined. He was deeply troubled but felt unable to do anything.

Looking back from today’s perspective, it’s possible to see that a witness could have been heard if anyone had really wanted to make that happen. With the aid of a good interpreter and a skilled anthropologist, a senior stockman and community leader could have provided a statement and been offered for cross-examination. I am confident that the commission would have been flexible enough to allow this and would have welcomed the opportunity to explore aspects of the case excluded by the way the union narrowed the issues.

Reaction to the decision

As word of the decision spread through the station camps, Aborigines and their supporters were infuriated that it would not come into operation until December 1968, and pastoralists were disappointed by the extended application of the award. But there was no concerted action in response to the decision on the part either of station owners or of Aborigines living on stations.

The fact is that relations between owners and Aborigines varied enormously from station to station, and were sometimes quite benign. An example is the Bulman mob on Mainoru station, described by anthropologist Gillian Cowlishaw; as part of a cordial relationship, the station owner’s sister ran a school for the station children. A pastoralist in the Kimberley spoke of “a sort of unwritten law that it was our station but their land.”

Stations ranged in size from 30,000 hectares or less to the largest holding in the world, at over two million hectares. Friendly, respectful relations were probably not uncommon on small, family-run properties, but there is a great deal of evidence of deplorable conditions and toxic relations with the managers of large absentee-owned stations.

This diversity, together with the absence of centrally directed policies or record-keeping on either side, or even regular channels of communication between station communities, makes it difficult to give a coherent account of the reaction to the decision.

Reaction among owners

So far as the owners were concerned, they had said in the proceedings that if they were burdened with paying all Aborigines award rates, they would be inclined to accelerate development programs that would enable them to employ only or mostly white labour. Although there was no concerted program of doing so, it seems that many moved in that direction and Aboriginal employment on cattle stations declined dramatically over the next decade, and continued to decline thereafter.

This happened not only in the Northern Territory but also in states where the award precedent was followed. It is difficult to get figures on current Aboriginal employment, but it seems that most if not all of the small number of Aboriginal stockmen now employed on white-owned stations are employed as individuals and the old camps have disappeared. No doubt some employees go to work from community or “Gibb” excisions (see below).

Sometimes communities were made unwelcome and walked off en masse, as happened to the Bulman mob (mentioned earlier) when a new owner took over Mainoru. Sometimes employers took quite extraordinary action. In January 1969, as part of a Christmas holiday in the middle of the wet season, the Christmas Creek mob in the West Kimberley had walked a long way from their home station towards Fitzroy Crossing. The whole community was there, including elderly women and men. Without warning, they were told by staff of a station they were travelling through to get on tractor-towed trailers. Instead of being taken home, they were dumped at Fitzroy River settlement, on the wrong side of a rising river, without food, to spend the night in the open. Presumably this was done in agreement with their home station, which then advised the Department of Native Welfare that the Aborigines had been permanently discharged from their cattle station and if they tried to return, the police would be called.

Reaction on worker side

The union, with the support of the ACTU, protested at the timetable for introduction of the award and attempted to negotiate an earlier date, but was unsuccessful.

So far as Indigenous communities on the stations were concerned, reactions varied greatly. They had not been involved in or identified with the lodging or prosecution of the claim and most did not understand the process. Many were not used to handling money, and didn’t see it as central to their lives. As J.K. Doolan documented, strong feelings of injustice and anger seem to have been widespread, but were often related to general disrespect, and various kinds of discrimination, insult and shoddy treatment (including belittlement of their work). Recognition of rights to land was more likely to become a focus of community aspiration than higher wages.

Sporadic and uncoordinated strike action extended over several years, varying from area to area and from station to station. I mention some illustrative examples. In late April 1966, Captain Major led the walk-off from Newcastle Waters of about eighty people, who went to a government reserve at Elliott. Although an Aboriginal organiser, Dexter Daniels, was involved, the union leadership was taken by surprise. It supported the strikers but did not encourage wider action.

On 22 August 1966, eighty Aborigines, mainly Gurindji, walked off Wave Hill and established a camp at Daguragu. By this time, it was becoming clear that the real focus of most Aboriginal desire was not wages and money, of which they had limited experience, but recognition of their claim to traditional land. For the Gurindji, such recognition came to some degree with prime minister Gough Whitlam’s famous “handful of sand” on 1 July 1975, but the story goes on, illustrating the problems of establishing Aboriginal-owned cattle stations. When Aboriginal land rights came to the Territory in 1978, they did not extend to claiming pastoral leases, which remained inviolate even to native title claims after Mabo in 1992.

In 1971, the Yungngora community walked off Noonkanbah station in the West Kimberley, and became fringe dwellers in Fitzroy Crossing. In 1976, the property came on the market and the Aboriginal Land Fund bought the lease to the station. About 200 fortunate people moved back, and became another of the significant number of Aboriginal-owned cattle stations.

Commonwealth actions

During the hearing, the Commonwealth undertook to deal with any problems that arose as a result of extending the award. Perhaps social services for the unemployed and accommodation for the homeless may be regarded in this light. For example, displaced communities from the West Kimberley stations have made Fitzroy Crossing a major centre.

More specific action came in October 1970, when the federal minister for the interior, Peter Nixon, appointed a committee headed by C.A. Gibb of the Australian National University to report on policies in relation to Aboriginal communities on NT pastoral properties. Reading the minister’s instructions, the committee’s account of its meagre factual findings and its mostly very general, aspirational recommendations, one could be pardoned for wondering whether anyone involved took the project seriously.

But one of the committee’s recommendations, for the excision from pastoral leases of land for “limited village, economic and recreational purposes to enable Aboriginal communities to preserve traditional cultural ties and obligations and to provide the community with a measure of autonomy,” was enacted into law. This ultimately generated more than one hundred community living areas, which have allowed some communities to maintain footholds on their traditional lands within pastoral leases not otherwise open to claim by them. They are not suitable for pastoral operations. The future of these areas is currently in play, however, under the Commonwealth’s Stronger Futures program.

Breaking the silence

Early in this essay I spoke of the Great Australian Silence as something that distorted the reaction to and understanding of the equal pay claim. One thing the Silence did was to make it possible to assume that the relationship between the Aborigines in the station camps and the station owners was sufficiently “normal’ in industrial terms for it to be the subject of award-making. In other words, that the workers were free agents able to negotiate contracts of employment or move away to seek employment elsewhere.

Nobody would have lightly made such an assumption even ten years later, after the works of C.D. Rowley and the early revisionary historians were in circulation. As the actual relationship between Aboriginal communities and pastoralists has become better known, scholars have reached back to feudal times for terms to describe it. Today it is easy to establish that the title to many of the stations is sealed in the blood of the ancestors of those who sought equal pay.

Readers of the classics of yesteryear, We of the Never-Never and The Little Black Princess, may remember the reaction of the Aborigines on Elsey station, who in 1901 were involved in the “Playaround Coronation” celebrations for Edward VII organised by the white residents. At what they thought likely to be the appropriate moment, the white staff fired a volley of revolver shots into the air as a royal salute. In a flash, every Aborigine disappeared into the night. “They thought we had suddenly gone mad,” opined the author. It seems much more likely that they thought, in a flash of terror, that, despite the recent shared celebrations and the lapse of twenty years since the station was taken up, their white “employers” might be reverting to type and a massacre might be about to take place by the armed whites against the unarmed Aborigines.

Writing specifically of the Victoria River district, Deborah Bird Rose says: “From the time the area was first occupied by pastoralists (1882–83) until Aboriginal people went on strike (1966–73), Aborigines either resisted overtly and died, or worked their lives out for the benefit of others.”

To understand what Rose meant by “worked their lives out for the benefit of others,” we can go to the one piece of anthropological research that had been carried out (but not published) on station communities before the equal pay case. In 1944–46 two anthropologists did some research on, among other topics, the low birthrates on stations. They wrote:

The overall reason [for the shortage of children] seemed to be a general feeling of disillusionment. A common attitude of station Aborigines at [Vestey stations] could be summarised as: “Why should we have children? They are a drag on our scanty rations, they evade their responsibilities when they grow up – not always through their own fault, because they are moved away from their home camps, or have to be absent for long periods, and receive only small rations and no money. Why should we breed more people for [Europeans] to use the way they use us?”

Detailed information about diet and health and general conditions on these stations is quite sickening to today’s readers.

Whether those conditions persisted twenty years later when the equal pay case was heard, I do not know. The comments of an academic researcher, Fred Gruen, who made a survey of stations during the case include a reference to “the humpies, the destitution and the general air of despondency among Aborigines on cattle stations” and the observation that, “judging from the cattle stations we visited, the six stations inspected by the Commission are about as unrepresentative as any six that one could find in the Territory.”

Kirby and Aborigines

When I think of the equal pay case, I always have the same flashback. The commission is visiting a station on a cloudless day under a sweltering sun. The official party, all of whose members are white, emerges from the homestead, where it has been welcomed, to an area adjacent to yards where a work demonstration will be given. In the vicinity there is one huge, densely spreading shady tree, under which all the station Aborigines are assembled, cool, comfortable and inscrutable, keen to observe the work practices of the white arbitrators. Poles have been used to create some not-very-effective shade for the official party some distance away, and we cluster under it.

Chief Judge Kirby, the most sociable of men, is clearly edgy and frustrated. He was a humanist of warm and generous personality who emerged from an elite King’s School education to become known as an “underdog’s man” at the Bar, and to acquire an enviable international reputation as a member of the UN Committee of Good Offices on the Indonesian Question, to which Australia had been nominated by Indonesia.

But here on an outback station, his diplomatic skills are sorely tested. Always anxious to establish a friendly personal relationship with all parties, he would expect their representatives to be introduced to him by their counsel. But here, counsel for the union doesn’t speak to the Aborigines himself, much less introduce a representative to Kirby. One can sense Kirby agonising about what to do. If he takes the initiative, he might only embarrass some Aborigine who does not want to be involved and doesn’t speak English. I don’t recall that he found a solution.

We learn from Kirby’s biography something that was not known to the parties and their representatives. He had a special sympathy for Aborigines, stemming from his early childhood in north Queensland, where he was extensively “mothered” by Aboriginal servants, particularly Ginny. His biographer writes: “Kirby found the case one of the most distressing and frustrating in his career: appalled and ashamed by what he heard and saw, he was constantly rebuked by the ghost of Ginny. ‘I talked about her and my boyhood so much that the rest of the team got sick of me.’”

What appalled Kirby was not “deliberate ill-treatment” or the conditions on the cattle stations in particular (he had visited only a carefully selected few), but the condition of Aborigines in the Territory generally. As much on the missions as on the cattle stations, Aborigines were “degraded.” “Even when treated kindly they seemed to be regarded as a mixture between dogs and cattle and sub-human beings.”

Despite the strength of his feelings, Kirby managed to conceal them in public. His anguish appears neither in the transcript of proceedings nor in the judgement. I can see no reason to think it affected the decision. •