The landmark Northern Territory stolen wages class action against the Federal Government could be in jeopardy due to potential reforms to the class action process.

Announcing the class action on June 8, Melbourne law firm Shine Lawyers said they were advocating on behalf of Aboriginal workers in the Northern Territory seeking compensation for lost of income between 1933 and 1978.

“Under these discriminatory laws, the Commonwealth got away with robbing Indigenous Australians of their hard-earned wages, meaning those who were already separated from their families entered a vicious cycle of poverty that was preventable,” said Shine Lawyers’ Head of Class Actions, Jan Saddler.

Thomas Conway was 11-years-old when he was taken from his family and began work on Alexandria Station.

“I worked on water bores or in the timber yard or stock yard. You got up at six o’clock in the morning and knock-off was at six o’clock at night,” he said.

“There was no money. Just working for the white man. When Gough Whitlam gave us land rights, we walked free, back to Country, and never went back.”

Director of Litigation Lending Services (LLS), who is funding the class action, Nyunggai Warren Mundine AO said that the class action is a step towards shining a light on a forgotten history.

“We want to shine a big spotlight on this, telling people what happened. We’re not talking about lazy people, these are people who worked on cattle stations, they worked on the railway and the roads,” he said.

Mundine’s own father worked for the Department of Main Roads in New South Wales. In the 1940s he was given the ‘Aborigines Allowance’ — a small fraction of the income he was entitled to.

“It meant that he was in the same boat as others who had their wages stolen. He was very fortunate, he was able to find a union organiser that got him a full pay, he was a rarity,” Mundine said.

Mundine believes the class action is a step towards justice.

“These people helped build this country through their work. They went out there every day, built the cattle stations, the roads, the railway, fruit picking — everything,” he said.

“These are the infrastructures that helped build the Australian economy … Money was taken from them and funded to build those same roads, those same railways, schools and everything else in this country.”

The NT stolen wages class action follows the 2019 stolen wages class action in Queensland, in which more than 10,800 Aboriginal and Torres Strait Islander people received $190 million of entitlements for stolen wages between 1939 and 1972.

The NT stolen wages class action will be against the Federal Government.

“We’re bringing this against the then Minister for Native Affairs who originally did this, but of course the inheritor of that title now is Minister for Indigenous Australians Ken Wyatt — it is ironic,” he said.

Currently, the Federal Government is negotiating reforms to the class action process and the regulation of funder and plaintiff firms.

These negotiations are the product of a Parliamentary Joint Committee on Corporations and Financial Services report from a December 2020 inquiry.

The inquiry recommended 70 per cent of gross proceeds could be a minimum return for class action members, therefore capping fees for litigation funder and lawyers.

Federal Treasurer Josh Frydenberg, in a joint statement with the Attorney-General Michaelia Cash, said the measure is of “particular importance to ensure successful applicants are adequately compensated in their cases as well as preventing litigation funders and law firms from taking disproportionate fees in the process”.

Mundine however notes the impact these changes could have on class actions like the NT stolen wages case.

“Caps sound like a great idea … but the problem we are looking at is if our case goes to court for years, there are excessive legal fees involved and a lot of research money,” he said.

“You will not, unfortunately because of the delay, see that return back the clients. This gives the advantage to the defendants — if they delay it or put roadblocks in the way, more money is spent on the lawyers and less is returned to the client.”

Mundine is in conversation with the Attorney-General and Treasurer to ensure Aboriginal workers seeking compensation for stolen wages “do not become collateral damage because they’re trying to get justice”.

“These people worked, and they worked hard. It’s very simple, give them their money back.”

NIT contacted the Attorney-General’s Department for comment but did not receive a response by time of publication.

By Rachael Knowles