The Wages of Sin: Compensation for Indigenous Workers
University of New South Wales Law Journal, Vol. 32, No. 3, pp. 647-673, 2009
28 Pages Posted: 4 May 2010 Last revised: 6 Aug 2013
Date Written: 2009
After two centuries of exploitation, Indigenous people in Australia are now engaged in a struggle to recover what has come to be known as ‘stolen wages’, although there is uncertainty as to the best legal avenue. This article overviews the course of the struggle, which began in the industrial arena but moved to the discrimination arena, where modest damages have been awarded, although academic commentary favours breach of fiduciary duty or breach of trust. Drawing on the Kantian binary of active and passive citizens, the authors argue that the initiation of civil action represents an important site of active citizenship. Viewed in this light, it is argued that breach of fiduciary duty should be rejected, if the time of the misappropriation allows it, as it instantiates the passivity and inequality associated with the colonial era, while breach of trust entails monumental problems of proof. Further recourse to anti-discrimination legislation is advocated because its theoretical framework is based on equality - a foundational premise of citizenship.
Keywords: Stolen wages, Indigenous people, race discrimination, Australia
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