Opinion Number. 1562

Subject

aboriginal trust funds ABORIGINAL TRUST FUNDS: NORTHERN TERRITORY: moneys received by Protectors of Aboriginals on behalf of Northern Territory aboriginals: CLOURE OF ‘Aboriginal Trust Fund’ and openING OF another Fund to be known as Aboriginal Medical Benefit Fund

Key Legislation

Aboriginals Ordinance (NT) 1918

Date
Client
The Secretary, Department of the Interior, Canberra

The Secretary, Department of the Interior has forwarded to me for advice the following memorandum:

Prior to the 1st June, 1933, it was the practice to pay into the Aboriginal Trust Fund all moneys received by Protectors of Aboriginals on behalf of Northern Territory aboriginals. The aboriginals could, with the approval of the Protector, draw against their credits in the Fund.

By the Aboriginals Ordinance 1933, which came into operation on the 1st June, 1933, a new system is instituted in regard to the treatment of the portion of the wages of aboriginals paid to a Protector. This is set out fully in section 29A inserted in the Principal Ordinance by section 6 of the amending Ordinance.

The Administrator, Darwin, asked that approval be given to close the Aboriginal Trust Fund and to open another Fund to be known as the Aboriginal Medical Benefit Fund.

The Aboriginal Medical Benefit Fund was created by regulation 12 of the Aboriginals Regulations which came into operation on the 29th June, 1933.

The Administrator’s request was referred to the Treasury. A copy of the reply from that Department is forwarded herewith.

In the Regulations under the Aboriginals Ordinance which were in force prior to the promulgation of the Regulations of the 27th June, 1933, the only references to the ‘Aboriginal Trust Fund’ are in—

  1. regulation 8, which provided that the portion of the wages of an aboriginal apprentice shall be paid to his credit in the Aboriginal Trust Fund;
  2. regulation 20 which provided that all moneys paid into the Aboriginal Trust Fund shall be expended by the employees with the approval of the Protector.

It would appear that the term ‘Aboriginal Trust Fund’ mentioned in the early Regulations is synonymous with the Trust Fund, Northern Territory Aboriginals Account established by the Treasurer in 1915.

It will be observed that the Department of the Treasury is of opinion that authority to transfer the whole of the moneys standing to the credit of the Trust Account established by the Treasurer would require an amendment of section 29A(5) of the Aboriginals Ordinance. I shall be glad to be furnished with your views on the matter.

Section 29A of the Aboriginals Ordinance 1918–1933 is as follows:

  1. A
    1. The Chief Protector or any authorised Protector may direct an employer to pay to him such portion as is prescribed of the wages of any aboriginal employed by or apprenticed to the employer.
    2. The Chief Protector or any authorised Protector shall pay into a trust account to be opened by him at the nearest branch of the Commonwealth Savings Bank any moneys received by him under this section and shall keep an account of the receipt and expenditure thereof.
    3. The interest accruing on the moneys paid into the trust account referred to in the last preceding subsection shall, once in every twelve months, be withdrawn by the Chief Protector or authorised Protector and placed to the credit of the prescribed fund.
    4. When the total of the sums received by the Chief Protector or any authorised Protector in respect of any individual aboriginal, after deduction of all moneys lawfully expended on behalf of, or for the benefit of, that aboriginal, amounts to Twenty pounds, the Chief Protector or authorised Protector shall withdraw the amount paid on account of that aboriginal under sub-section (2) of this section to the trust account and shall pay the amount to the credit of a trust account at the nearest branch of the Commonwealth Savings Bank in the name of that aboriginal, and shall thereafter pay all amounts received in respect of that aboriginal to that account.
    5. All moneys which, at the date of the commencement of this section, form part of the Aboriginal Trust Fund established under the Regulations made in pursuance of this Ordinance shall be dealt with as if they were moneys standing to the credit of the trust account opened under subsection (2) of this section.
    6. Moneys paid into a trust account in pursuance of this section may be expended by the aboriginal in respect of whom it was paid if the Chief Protector or authorised Protector approves of the expenditure, or may be expended by the Chief Protector or authorised Protector on behalf of, and for the benefit of, the aboriginal, but not otherwise.
    7. In this section the expression ‘authorised Protector’ means a Protector authorised in writing by the Chief Protector to exercise the powers and functions of the Chief Protector under this section.

The question submitted for advice is whether an amendment of section 29A of the Ordinance is necessary in order to authorise the transfer of the whole of the moneys standing to the credit of the Trust Account established by the Treasurer in 1915 under section 62A of the Audit Act to the Trust Account opened in pursuance of that section.

Subsection (5) of section 29A makes provision for the disposal of moneys which, at the date of the commencement of the section, formed part of ‘the Aboriginal Trust Fund established under the Regulations made in pursuance of this Ordinance.’

The Regulations which were made by the Administrator on 21 May 1919 do not expressly provide for the establishment of the Aboriginal Trust Fund. The only references to that fund are, as above stated, those contained in Regulations 8 and 20.

Those Regulations appear to assume the existence of the Aboriginal Trust Fund.

In view of the fact that the moneys paid into this Fund under the Regulations represent amounts due to aboriginal apprentices, and that the Fund established by the Treasurer in 1915 was also to consist of wages due to aboriginal employees, it would appear that the Fund mentioned in the Regulations is the same as was established by the Treasurer in 1915, and made a Trust Account within the meaning of section 62A of the Audit Act.

It should be capable of ascertainment whether, in fact, the Fund to which reference is made in the Regulations, has been administered as the Fund established by the Treasurer under the Audit Act.

If this is so, it does not appear that any amendment of the Ordinance could be made providing for the disposition of moneys standing to the credit of the Fund otherwise than in accordance with the Audit Act.

By section 62A of the Audit Act, it is provided that, where any Trust Account is closed, the moneys standing to the credit of the account shall, after all liabilities of the Account have been met, be paid to Consolidated Revenue Fund.

It would seem that aboriginals whose wages have been paid into the Fund have a claim for those wages. Those claims would amount to liabilities within the meaning of section 62A.

It is suggested that possibly, with the concurrence of the Treasury, the present position may be overcome by seeking the approval of the Treasurer to close the Aboriginal Trust Fund and to transfer to the new fund all moneys held to meet existing liabilities.

[Vol. 27, p. 389]