Research Paper 10 2000-01

The Parliament of the Commonwealth of Australia and Indigenous Peoples 1901-1967

John Summers
Politics and Public Administration Group
31 October 2000

Contents

Major Issues
Introduction
The Commonwealth Parliament and Indigenous People 1901-1967
The Constitution

First Speech on Indigenous People in the Commonwealth Parliament
The Franchise Act 1902
Other Exclusionary Legislation

Interpreting the Law
Constitutional Rights of Indigenous People?
The Northern Territory
Legislating for Indigenous People in the Northern Territory
Leasehold versus Freehold Land
Aboriginal Employment in the Pastoral Industry in the Northern Territory

Pressures for Change
Assimilation for all Aborigines
Equal Rights under Commonwealth Law
Assimilation in the Northern Territory

The Woomera Rocket Range and the Nuclear Tests
Constitutional Change-the 1967 Referendum
Endnotes
References

Major Issues

In 1901 it might have been expected that the Commonwealth Parliament would play little role in Aboriginal matters. The Constitution of the Commonwealth of Australia, as it existed, specifically excluded the Parliament from making special laws for Aborigines in the States. However, as a legislature and as forum for debate on national issues, the Parliament always had the power to shape the rights and entitlements of Indigenous peoples and to play a role in determining the position of Aborigines within Australian society.

First, the Commonwealth Parliament legislated in relation to certain rights and entitlements of Indigenous peoples under Commonwealth law-the Commonwealth franchise and Commonwealth benefits and entitlements. Second, in 1911 the Commonwealth obtained undivided legislative power over the Northern Territory and thereby direct responsibility for the administration of Aboriginal Affairs in the Territory. Further, in the 1950s and 1960s the Commonwealth Government's establishment of the Woomera rocket range, and its involvement in the British nuclear tests in the north-west of South Australia gave it direct powers and involvement in relation to some Aboriginal groups outside the Northern Territory.

Given the role commonly attributed to the Parliament in the system of responsible cabinet government, it might have been expected that the Parliament would have played a significant role in checking and questioning the Government in its use of its powers in these areas. However, in the case of the Commonwealth Government's administration of the Northern Territory and Woomera and the British Nuclear Tests, and to some extent in its enactment of Commonwealth legislation, it is the things that the Parliament did not do, rather than what it did do, that are most noteworthy.

In relation to Commonwealth legislation the first matter directly affecting Indigenous peoples was the Commonwealth Franchise Bill 1902 and in this case the Parliament's role was decisive. The Parliament rejected Government legislation for a uniform franchise which would have included all Indigenous peoples, and after a lengthy debate legislated to exclude 'aboriginal natives of Australia' from the Commonwealth franchise. For the next half century or so, often with little or no debate, the Commonwealth Parliament legislated systematically to discriminate against Indigenous peoples, denying them the same citizenship rights and benefits as other Australians. To the extent that the legislation was debated parliamentarians almost invariably rationalised the exclusion in terms of 'race' or 'blood' or 'caste'. Legislation granting or denying benefits or rights was expressed in terms of 'race'-a person's legal position was determined by his or her proportion of Aboriginal 'blood'.

In relation to the Northern Territory the Commonwealth obtained undivided power at a time of special importance for Aboriginal affairs. Aborigines were a majority population in the Territory and most still lived in a frontier situation or in more remote areas beyond the boundaries of European occupation. There was an opportunity for the Commonwealth Parliament to take a lead in Aboriginal Affairs and to set a course different from that of the States. The Parliament, however, delegated its legislative power in the Northern Territory to the Government to legislate by Ordinance and Regulation. In parallel with developments in the States the whole thrust of the administration of Aboriginal Affairs in the Territory, until after the Second World War, was toward greater restriction of Aborigines' rights through regulation and institutionalisation and the enactment of discriminatory laws which applied to wider and wider categories of people.

In the 1920s and 30s, in response to reports of abuses of Aborigines in the north, there was growing political pressure on the Government in relation to the condition of Aborigines in the Northern Territory. In the Parliament there were several attempts by members from all sides to have the Government improve the welfare provisions for Aborigines but the pressure was never sustained. The Parliament as a whole showed little interest in reports which revealed the appalling conditions of the Aborigines in the Territory and ignored reports of a punitive expedition against Aborigines. The most important questioning of the Government and pressure for reform came from humanitarian and Aboriginal support groups; in the face of 'spectacular injustices' little was heard from the Parliament.

In the case of the development at Woomera and the British Nuclear Tests, the Parliament was almost completely silent. Very little was done by the Parliament to discover what was actually involved in the nuclear tests or what effect the tests were having on Aborigines. Even when important questions were raised elsewhere Members of Parliament from both sides chose not to press the matter.

A turning point in Indigenous policy came after the Second World War when the social changes which had been taking place in Australia were reflected in the election, to both sides of the Parliament, of a small number of members who had a strong and persistent interest in Aboriginal welfare. In the early 1950s, with bi-partisan support in the Parliament, and against a background of persistent and tireless campaigning by Aboriginal and humanitarian organisations for equal citizenship rights, the Commonwealth Government adopted a policy of assimilation and equal rights for Indigenous peoples and announced plans to implement the policy in the Northern Territory. Very slowly, through the 1950s and 1960s, the discriminatory provisions in Commonwealth (and State) laws were repealed.

Importantly, however, in the Northern Territory the Commonwealth was very slow to give effect to the stated policy of equal rights. The old practices of regulation and institutionalisation continued and the extremely poor pay and working conditions of Aboriginal workers remained largely unchanged.

A decisive change occurred in the mid-1960s when Aboriginal communities in the Territory began to press for Indigenous rights in a new way. The Aboriginal community from Yirrkala in Arnhem Land pursued a claim to obtain ownership of their land and at Wave Hill cattle station the Gurindji people went on strike and sought to obtain ownership of their land. The Commonwealth Government and Parliament had overseen a system under which the Aborigines in the Northern Territory were largely pauperised and excluded, with their lives regulated by administrators. The initial Aboriginal protests in the Northern Territory against discrimination and poor treatment broadened into a much wider campaign. Aboriginal communities no longer sought just civil rights but now pursued Indigenous rights-land rights and control over their own lives. Although the institution of Parliament did play a role in the Yirrkala claim, the new campaign for Indigenous rights was not taken up in the Parliament until the Aboriginal groups and their white supporters had made it a national and international political issue.

One issue which had been raised periodically in the Parliament since its first session was the Constitutional provisions on Indigenous peoples. In the 1960s various proposals for constitutional amendment were discussed. A proposal for constitutional change-to remove s. 127, which stipulated that for the purposes of the census 'aboriginal natives shall not be counted', and to remove from s. 51(xxvi) the prohibition on the Commonwealth Parliament making special laws for 'the aboriginal race in any State'-became a major objective of Indigenous and other reform groups. Given the Commonwealth Parliament's legislative record and the history of neglect in the Northern Territory it is surprising that the campaign for Aboriginal rights should have placed such importance on extending Commonwealth powers. However, for many of those supporting the change, the concern was simply the removal of provisions which were discriminatory and insulting to Indigenous peoples. A Referendum proposal to remove s. 127 from the Constitution and amend s. 51(xxvi) was overwhelmingly passed in 1967.

Despite the great support for the changes to the Constitution, the Coalition Government was reluctant to exercise the new powers over Indigenous affairs. Inevitably, however, given that the Commonwealth Parliament now had this power, the political campaign for Indigenous rights focused on the Commonwealth. For the last three decades of the century Indigenous affairs were an inescapable issue for the Commonwealth Government and Parliament.

Introduction

The Commonwealth Parliament and Indigenous Peoples 1901-1967

This paper discusses the Commonwealth Parliament and Indigenous affairs in the period before 1967 when the original constitutional provisions relating to Indigenous matters were changed by referendum. Many of the most notable events relating to Indigenous matters took place in the Parliament after this time. The only two Aborigines to be elected to the Commonwealth Parliament won their positions after 1967. Neville Bonner (Liberal, Queensland) was a Senator from 1971 until 1983, and Aden Ridgeway (Australian Democrat, NSW) was elected to the Senate in 1998. Also, much of the most notable legislation of the Commonwealth Parliament directly related to Indigenous peoples was passed after 1967 when the Commonwealth Parliament's powers in this area had been greatly expanded. These included the Racial Discrimination Act 1975, the Aboriginal Land Rights (NT) Act 1976, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, the Native Title Act 1993, the Hindmarsh Island Bridge Act 1997 and the Native Title Amendment Act 1998. This legislation is not dealt with here. Nor are the important and controversial post-1967 discussions in the Parliament such as the debate on the 'stolen generation' following the publication in 1997 of Bringing Them Home, the Report of the Human Rights and Equal Opportunity Commission on its Enquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families,⁽¹⁾ or the debate in the late 1990s on Aboriginal reconciliation.

The focus of this paper is on the Parliament in the period before 1967 when it operated under the original constitutional provisions relating to Indigenous peoples, as they were drafted by the framers of the Constitution.

The Constitution

Sections 51(xxvi) and 127

The Constitution which came into effect in 1901 contained two provisions explicitly relating to Aborigines. First, s. 51(xxvi), the 'race power', gave the Commonwealth Parliament power to make laws with respect to 'the people of any race, other than the aboriginal race in any State, for whom it was deemed necessary to make special laws'. Aboriginal affairs remained within the jurisdiction of the States and, on the face of it, the Commonwealth Parliament would have little or no role to play in Aboriginal affairs. Second, s. 127 of the Constitution read '[i]n reckoning the numbers of people of the Commonwealth, or of a State or part of the Commonwealth, aboriginal natives shall not be counted'.

The rationale behind s. 127 is not absolutely clear. Two matters for which the measure of the population of the States could be of consequence were the apportionment of revenue, or costs, between the States, and the distribution of House of Representatives seats among the States.⁽²⁾ In the case of s. 51(xxvi) there is also doubt about what the drafters of the Constitution intended. From the relatively brief discussion of the section in the Convention Debates it appears that the 'race power' was intended to give the Commonwealth power to deal with 'coloured' groups from outside Australia-such as people who may have come to Australia as indentured labourers-but in line with the general federalist philosophy of the Constitution, Aboriginal matters would remain with the States.⁽³⁾

For the law-makers the important question about the qualifying phrase, 'other than the aboriginal race in any State', in s. 51(xxvi) was what legislative measures were outside the powers of the Commonwealth Parliament on account of it. One possible meaning was that it prevented Parliament from making any 'special laws' for Aborigines and therefore from making laws which contained measures which treated Aborigines differently from non-Indigenous peoples. If this were the proper understanding of the meaning of the qualification to s. 51(xxvi) it could have been seen as a constitutional protection against Commonwealth laws which discriminated against Aborigines. This interpretation, however, is not the accepted one.⁽⁴⁾ As will be discussed in greater detail below, many laws of the Federal Parliament, which were never challenged on constitutional grounds, discriminated against Aborigines in many ways. The qualification to s. 51(xxvi) only denied the Parliament power to enact legislation for Aborigines which would have relied entirely on s. 51(xxvi) and for which the Constitution made no other grant of power to the Commonwealth Parliament. Thus, laws dealing with, for example, the Commonwealth franchise or the payment of pensions were within the law-making power of the Parliament because of the constitutional provisions granting those powers to the Commonwealth Parliament. Special provisions in those laws which disadvantaged, or advantaged, Aborigines were not made invalid on account of the qualification 'other than the aboriginal race in any State' in s. 51(xxvi).

A related issue which has often been raised in relation to the qualification to s. 51(xxvi) and s. 127 is the question of Aboriginal citizenship. It is part of a pervasive popular mythology that until the 1967 referendum, which removed s. 127 and the qualifying words from s. 51(xxvi), the Constitution denied Aborigines citizenship rights and that the 1967 referendum resulted in Aborigines achieving citizenship. It is important in the discussion of the role of the legislature in Aboriginal Affairs to be clear about the extent to which it was actually the Constitution which denied rights to Aborigines, and the extent to which the denial of rights was the result of deliberate legislative and executive acts. In terms of the legal rights of Aborigines the Constitution, as it stood, did no more than prevent the Commonwealth Parliament from making 'special laws' for 'the aboriginal race in any state'. The legal rights of Aborigines in relation to Commonwealth matters was not the product of the restriction on the Commonwealth Parliament's powers, but on the rights and entitlements that were extended to, or denied to, Aborigines in Commonwealth legislation.⁽⁵⁾ The provision did, however, deny the Commonwealth Parliament the legislative power which would have been necessary for the Commonwealth to move into the whole general area of Aboriginal Affairs. The overall administration of Aboriginal Affairs and the entire legal and administrative framework which governed Indigenous peoples in the States could not have been taken over by the Commonwealth.

Another question about the negative provisions in the Constitution is exactly who was covered by them. There is no definition in the Constitution of either expression-'aboriginal race' in s. 51(xxvi) or 'aboriginal natives' in s. 127. One unresolved matter is whether the expressions included Torres Strait Islanders.⁽⁶⁾ At the time of Federation Aborigines were subject to a range of State laws which variously classified people as Aboriginal or not depending not only on their parentage but also on their circumstances and in some cases classified them differently for different purposes.

State laws, covering matters such as the supply and possession of alcohol or opium, giving evidence in court, work conditions, summary trial for certain offences, marriage and sexual relations, possession of firearms, and the guardianship of children, denied Indigenous peoples rights which were available to non-Indigenous peoples, and restricted relations between Indigenous and non-Indigenous peoples.

In Western Australia and Queensland Aborigines were explicitly denied the right to vote on the same terms as other residents.⁽⁷⁾ In New South Wales and Victoria many Aborigines were effectively denied voting rights by a requirement that voters not be in receipt of charitable aid. Only in South Australia were Aboriginal men and women entitled to vote. Elsewhere in Australia Aboriginal women were excluded either because of gender or race.⁽⁸⁾

Section 41

One other provision of the Constitution, ssection 41, that does not explicitly mention Aborigines, is relevant because it figured prominently in debates about Aboriginal rights in the Commonwealth Parliament. section 41 states:

In the Convention Debates proponents of s. 41 were concerned to ensure that women who, in two of the States had won the right to vote, would not be denied it in Commonwealth elections (and would not campaign against and vote against acceptance of the Constitution). Exactly what s. 41 meant in terms of ensuring Commonwealth voting rights for those Aborigines already entitled to vote in State elections became a most contentious matter. From one point of view s. 41 should have at least guaranteed the right to vote in Commonwealth elections of Aborigines in those States where they were entitled to vote but, as discussed below, that turned out not to be the case.

First Speech on Indigenous Peoples in the Commonwealth Parliament

The question of Aboriginal rights and the constitutional powers of the Commonwealth in relation to Aboriginal matters was raised starkly in the House of Representatives less than three months after its opening. On 26 July 1901 Mr Mahon, the ALP Member for Coolgardie, moved to establish a Royal Commission on the conditions of Aborigines in northern Western Australia.⁽⁹⁾ Mindful of the likely objection, that the Constitution gave the Commonwealth 'no right to interfere' in the matter, he raised the question in terms of the Commonwealth's constitutional powers. He moved:

In this first speech on Aboriginal Affairs in the Commonwealth Parliament Mr Mahon raised matters which would become important in the rationale for the constitutional change in 1967, but they were matters which received very little attention in the Parliament for the next four decades. He argued that 'in this particular matter the reputation of the whole people of Australia is at stake'.⁽¹¹⁾ Newspapers overseas, and in Australia, had carried stories of ill-treatment of indentured and assigned Aboriginal workers in Western Australia who it was claimed were in a position akin to slavery. Mr Mahon argued that since Western Australia had obtained self-government in 1890 amendments to the laws governing Aborigines and Aboriginal employment had allowed abuses of Aboriginal rights in the lower courts. Under a 1892 law on Aboriginal employment, Aborigines found guilty of a misdemeanour at a summary hearing could be imprisoned and flogged. Provisions which had explicitly prohibited an interested party from hearing a charge as the sole Justice of the Peace had been removed from the law. In remote regions, when no other Justice of the Peace was available, an employer could hear charges against an Aborigine sitting as a single Justice of the Peace. Seeking recourse in higher courts was not a practical possibility for Aborigines in remote areas.⁽¹²⁾ Despite the forcefulness of his speech, Mr Mahon did not provoke any action from the Parliament. There was no further debate on his motion and on 10 October 1902, at the close of the First Parliament, it lapsed.⁽¹³⁾ There was, however, another matter before the First Parliament which required a decision about Aboriginal rights which could not be left to lapse at the end of the session.

The Franchise Act 1902

The First Parliament was not elected with a uniform franchise. The voting rights were based on existing franchise laws in each of the States. Thus, in South Australia and Western Australia women had the vote, in South Australia Aborigines (men and women) were entitled to vote and in Queensland and Western Australia Aborigines were explicitly denied voting rights.

In April 1902 Senator the Hon. R. E. O'Connor (Vice-President Executive Council) introduced the Commonwealth Franchise Bill into the Senate with the object of instituting a 'uniform franchise for the Commonwealth'.⁽¹⁴⁾ Clause 3 read:

One matter of controversy was that this provision extended the franchise to women for Commonwealth elections throughout Australia. An attempt in the House of Representatives to amend the clause to confine the right to 'male persons' obtained little support.⁽¹⁵⁾ More controversial was the fact that it would grant the Commonwealth franchise to Aborigines and to 'coloured people' from overseas. In the parliamentary debate on the Bill these two matters became inextricably mixed.

O'Connor argued that people who are affected by the laws of the Parliament and have to obey those laws should not be denied the right to vote for those who make the laws. In relation to Aborigines he said:

In relation to 'coloured people' who were British subjects O'Connor argued that the Immigration Restriction Act would '... enable us to shut out altogether any influx of coloured persons into Australia, whether British subjects or not'. However, no people who were already in Australia and who were naturalised should be disenfranchised. The strongest argument for the White Australia Policy, he said, was that 'we do not want to have in our community any section which is in a servile condition; we do not want to have any proportion of our community disenfranchised and in a position of political inferiority, having no right to a voice in the making of laws'.⁽¹⁷⁾

The Government argument did not prevail. Senator A. P. Mathieson (Free Trade, WA) moved an amendment to add the words:

By current standards the language of the debate is unbelievable. Senator Mathieson argued that in the matter of Aboriginal votes there was no need for uniformity:

One concern of Senator Mathieson was that employers of Aborigines in pastoral districts would be able to 'put everyone of these savages and their gins upon the federal roll' and then instruct them how to vote.⁽²⁰⁾

Also notable were the arguments of Senators who spoke for Aboriginal rights, and made reference to Aborigines being the original inhabitants of the land and to the injustice involved in denying rights to a people on the basis of their colour.⁽²¹⁾ Senator O'Connor, who spoke for the Government in the Senate, said that:

Senator T. Playford (Protectionist, SA) made a similar argument:

Senator Playford, however, did see the Chinese as a threat and said 'I am inclined to vote for the portion which relates to Asiatics, Africans, and Polynesians, but I shall not vote for the portion relating to aboriginal natives'.⁽²⁴⁾

The Senate, by twelve votes to eight, supported the amendment but without the restriction on the voting rights of the 'aboriginal natives of Australia'.⁽²⁵⁾

In the House of Representatives two members spoke against an exclusion of Aborigines which applied to them 'as a class' simply because of their race and without any consideration to their circumstances. Mr J. B. Ronald (ALP, Southern Melbourne, Vic.) said that:

However, a motion of Mr H. B. Higgins (Protectionist, Northern Melbourne, Vic.), to amend the Bill to exclude 'aboriginal natives of Australia' from the franchise and to remove the exclusion of people 'of the half blood' was supported by 27 members to five against.⁽²⁷⁾

As passed by the House of Representatives, and agreed to by the Senate, the provision read:

The Commonwealth Franchise Act 1902 was important for a number of reasons. In a real sense it was the Parliament which framed the legislation. The provisions on the franchise and the wording were not the result of a party vote 'rubber stamping' the Government's legislation. The Government had proposed a uniform franchise with no distinctions on the basis of 'race', ethnicity or place of birth. This was rejected by the Parliament in favour of a number of exclusions from the Commonwealth franchise which were expressed in terms which became the pattern for much legislation which was to come.

Having debated the matter vigorously and set the patterns of excluding Indigenous peoples from one basic right, there seemed to be no impetus within the legislature to raise the matter again. A series of laws, many following the formula established in the Franchise Act for denying benefits to Aborigines, was enacted. The phrase 'aboriginal natives of Australia' was a standard description of those to be excluded or denied rights.

Other Exclusionary Legislation

'White Labour' Only Laws

Several laws contained provisions which, although they did not explicitly refer to Indigenous peoples, excluded 'colour labour'. Subsection 16(1) of the Posts and Telegraphs Act 1901 provided that, '[n]o contract or arrangement for the carriage of mail shall be entered into on behalf of the Commonwealth unless it contains a condition that only white labour shall be employed in such carriage.'

The Schedule of Excise Duties under the Excise Tariff Act 1902 provided for a rebate to the growers of sugar cane and beet provided that 'white labour only has been employed'. The Sugar Bounty Act 1903 which provided for the payment of a bounty to growers of sugar cane and beet contained a requirement that no bounty would be paid for production that was grown on land which was 'cultivated by other than white labour' or production from planting which was done by 'other than white labour'. The Sugar Bounty Act 1905 contained similar provisions but also exempted Aborigines from the 'white labour' requirement. Clause 10 stated that 'the employment of any Aboriginal native of Australia in the growing of sugar-cane or beet shall not prejudice any claim to bounty under this Act'. The Bounties Act 1907 contained similar provisions about 'white labour' and also the exemption of 'aboriginal natives of Australia'.

Emigration

The Emigration Act 1910 could be seen as a protective measure for children and 'aboriginal natives'. The protection, however, was achieved by diminishing the legal status of Aborigines. The Act prohibited the emigration of children contracted to perform theatrical and other work outside Australia and any European child, unless in the care of a European adult, and 'any aboriginal native'. The Minister, the Hon.  E. L. Batchelor (ALP, Boothby, SA), said '[t]he aborigines of Australia ought not to be exploited by persons who merely wish to make money out of them.'⁽²⁹⁾ The only aspect of the provision which was debated was the definition of 'aboriginal native' which would apply under the Act. After some debate 'aboriginal native' was defined to include 'any native having one aboriginal parent'.⁽³⁰⁾

Social Welfare Legislation

Under paragraph 16(1)(c) of the Invalid and Old-age Pensions Act 1908 which established a national system of means tested pensions for residents of 25 years or more, old-age pensions were not payable to 'Asiatics (except those born in Australia), or aboriginal natives of Australia, Africa, the Islands of the Pacific, or New Zealand'. In the same terms subsection 21(1)(b) stipulated that 'aboriginal natives of Australia' could not qualify for an Invalid Pension. As introduced, the Bill excluded 'Asiatics or aboriginal natives of Australia, Africa, the islands of the Pacific, or New Zealand.' Mr Batchelor moved an amendment to remove the whole clause. He argued that it was only necessary to exclude those who were not born or naturalised British subjects. He said:

Most of the debate was concerned with the exclusion of 'Asiatics' and the aboriginal natives of other countries. In relation to that point Mr Batchelor argued: 'if we naturalise them and call upon them to bear taxation exactly as we do every other member of the community-we should not refuse them a pension'.⁽³²⁾

It was argued that some long-term residents who had qualified for a state pension would now not be eligible. The Government, however, did not want to concede ground and the only concession made was to remove the exclusion of those 'Asiatics' born in Australia.

In 1912 Parliament passed the Maternity Allowance Act to provide for the payment of an allowance to women living in Australia upon the birth of a child. Under subsection 6(2) the allowance was not to be paid to '[w]omen who are Asiatics, or are aboriginal natives of Australia, Papua, or the Islands of the Pacific'. Senator Walker (Free Trade, NSW) unsuccessfully attempted to amend the exclusionary clause. His concern was the meaning of the word 'Asiatic' and wished to ensure that women of European descent who were born in Asia were not excluded. The debate highlighted problems of inconsistency which arose out of laws which use 'racial' categories to define entitlement or rights. It was noted by Senator J. Vardon (Free Trade-Liberal, SA) and Senator T. D. Chataway (Free Trade, Qld) that a white woman married to a black man would be entitled to receive the benefit, but a black wife of a white man would not. The Government assumed that the inconsistency could not be avoided.⁽³³⁾ There was no objection to the exclusion of Aborigines and no discussion of Aborigines except a passing reference to the fact that under the clause the daughters of a white father and a 'half caste' Aboriginal woman would be entitled to the benefit but their mother would not.⁽³⁴⁾

Defence Legislation

The Defence Act 1910 exempted from service in time of war '[p]ersons who [were] not substantially of European origin or descent, of which the medical authorities appointed under the regulations shall be the judges ...' In other circumstances the exemption from compulsory military service might have been seen as beneficial treatment. However, although there was no mention of Aborigines in the Parliamentary Debate, there was no reason to see the exemption as being underpinned by anything other than the same ideology which gave rise to the other exclusions.⁽³⁵⁾ The Act did not prevent Aborigines enlisting and in the First World War a number served with distinction in non-segregated units.⁽³⁶⁾

Interpreting the Law

Parliamentarians may have anticipated that the application of these laws would be a relatively straightforward matter. The reality was that it was anything but straightforward. Laws that classified people on the basis of 'race', did not, and could not, provide clear cut objective criteria. It was always difficult to maintain consistency in administrative practice, and to interpret the law in a way which was not open to attack for inconsistency and contradiction. As with the Apartheid laws in South Africa and the White Australia Policy, administrators were always confronted with problems of interpretation in relation to people who did not fit neatly in the racial categories established by the law. For the people administering the laws there was a concern that their interpretation of the law in cases which were not clear-cut might establish a precedent which would make it more difficult to 'hold the line'.

To fully appreciate the complexities and contradictions involved in the administration of these 'racially' excluding laws it is necessary to understand the meaning that was placed on the expression 'aboriginal native' as it applied to people from outside Australia, as well as to the Indigenous peoples of Australia. The term 'aboriginal', was taken to mean being of the 'race' of original inhabitants of a country, whereas 'native' meant being born in the country. Much could be said about the reasoning behind this understanding of the terms but for the purposes of understanding the effect of the legislation, an 'aboriginal native' of a country was taken to be a person who was both born in the country and was of the original 'racial' group of the country. Thus, that legislation which excluded 'aboriginal natives of Asia' did not apply to Australian-born children of Asians, whereas that legislation which excluded Asians-such as the Maternity Allowance Act 1912-continued to apply to second and subsequent generations of people from Asia. The effect was that while the Australian-born children of, say, 'aboriginal natives of Asia' were not excluded from the Commonwealth franchise, the exclusion continued to apply to Aborigines, or to be more precise, to 'all persons in whom the aboriginal blood preponderates'.⁽³⁷⁾

The full impact of the law was a complex administrative jigsaw in which people of Asian or African background could be naturalised and still be denied a range of normal rights and benefits, and their Australian born children could have a different set of rights.

The legal status of Indigenous peoples was equally problematic and inconsistent. Individuals could be Aborigines for some purposes and not others. In the administration of the Franchise Act it was decreed that 'half-castes' were not 'aboriginal natives'. Secretary to the Attorney-General's Department, Robert Garran, advised that 'half-castes' were not disqualified from voting 'but that all people in whom the aboriginal blood preponderates are disqualified'. By 'blood', he noted, he meant 'ancestry'.⁽³⁸⁾

In 1901 the Attorney-General, Hon. Alfred Deakin, had expressed a similar opinion. He stated that in relation to s. 127:

However, in relation to the term 'white labour' in the Excise Tariff Act 1902 Deakin wrote that:

As more laws using 'racial' categories came into operation the position became more confused and irrational and the legal status of Aborigines was made even more complex by the operation of State laws. State and Territory laws, which became more restrictive and discriminatory over the first half of the century, subjected Indigenous peoples to a wide range of restrictions. In some cases these laws applied to people with any Aboriginal antecedents.⁽⁴¹⁾ Individuals who were subject to the restrictions and legal disabilities under State laws could at the same time be required to comply with Commonwealth legislation under which they were regarded as non-Aboriginal. Chesterman and Galligan give the example of 'half-castes' who under a State law were regarded as Aborigines and were denied a whole range of legal rights but, at the same time, were subject to conscription under the National Registration Act 1939.⁽⁴²⁾

Constitutional Rights of Indigenous Peoples?

In the debate on the first Commonwealth Franchise Bill great attention was paid to how s. 41 of the Constitution might affect the voting rights of Aborigines. Senator O'Connor, speaking for the Government in the Senate, appears to have believed s. 41 only applied until the Commonwealth Parliament legislated under s. 9 and s. 30 for the Commonwealth franchise. ⁽⁴³⁾Senator Playford agreed and argued that the words 'or acquires' in s. 41 referred to those who acquired the vote in a State between the proclamation of the Constitution Act of the British Parliament and the enactment of the franchise law by the Commonwealth Parliament. Once the Commonwealth Parliament had legislated, s. 109 would give precedence to Commonwealth law.⁽⁴⁴⁾ On this interpretation, s. 41 provided no constitutional protection because the Commonwealth Parliament would be able to legislate for a uniform franchise which was more limited than that in a State.

In the House of Representatives the Hon. Sir William Lyne (Minister for Home Affairs) spoke for the Government. Along with a number of others he interpreted s. 41 to mean that it 'prohibited the taking away of an existing electoral right in a State'.⁽⁴⁵⁾ In the words of Mr Higgins, s. 41 only compelled the Parliament to 'keep alive existing electoral rights'.⁽⁴⁶⁾

Senator Mathieson and others argued that s. 41 guaranteed the Commonwealth franchise to anyone who at any time in the future obtained a State franchise.⁽⁴⁷⁾ According to this view the words 'or acquires' meant acquires at any time in the future. Some speakers who accepted this interpretation were alarmed at the implication that an Act of a State Parliament could have the effect of extending the Commonwealth franchise.

Despite the disagreements about its meaning and effect on the operation of the legislation, the reference to s. 41 remained in the Commonwealth Franchise Act, and the problem of interpreting it was passed to the electoral officials who administered the Act and compiled the electoral rolls. An influential reference in this matter was Quick and Garran's Annotated Constitution of the Australian Commonwealth.⁽⁴⁸⁾ When electoral officials, and other Commonwealth Departments, sought advice on the meaning of s. 41 Robert Garran, as Secretary to the Attorney-General's Department, put forward the position taken in the Annotated Constitution.⁽⁴⁹⁾

Quick and Garran saw three possible interpretations of the rights conferred by s. 41. First, that a right could be acquired at any time in the future if State law extended the franchise. Second, that the right could be acquired at any time in the future by people who were eligible under a State law which had been in existence before the Commonwealth Parliament determined the Commonwealth franchise. Thirdly, 'that the right must be acquired by the [person] concerned before the Federal franchise was fixed'.⁽⁵⁰⁾ Although they thought that the matter was not beyond argument they preferred the third and most restrictive interpretation-that is that s. 41 only protected the right to vote in Commonwealth elections of those individuals who actually had the right to vote in a State election before the Commonwealth Parliament determined the franchise for Commonwealth elections.

Quick and Garran noted that a point against their interpretation was that in the Convention Debates the main advocate of the inclusion of s. 41, Mr F. W. Holder from South Australia, sought to ensure that women in South Australia-presumably not just the individual women who were already enrolled for State elections-were not disenfranchised in Commonwealth elections. This pointed to the second possible interpretation, which would have ensured not only that the federal franchise could not be taken away from women in general in the two States where they already had the vote, but also would have preserved the rights of all Aborigines in South Australia and that class of Indigenous peoples who had met the restrictive franchise requirements in other States.

The narrowest interpretation of s. 41, favoured by Quick and Garran, would only have given Commonwealth voting rights to individual Aborigines who had already exercised their rights in State elections prior to the Commonwealth Parliament legislation on the Commonwealth franchise. As it turned out, in the administration of the franchise legislation, no Aboriginal rights were protected. In a detailed study of the electoral rolls and the administrative practices of Commonwealth electoral officers, Pat Stretton and Christine Finnimore show how Aborigines were systematically denied their rights. On any pretext, for example a change of address, Aborigines who had exercised their State voting rights since before 1901 were removed from the Commonwealth rolls. Stretton and Finnimore conclude that many of the removals were simply illegal.⁽⁵¹⁾ Neither the interpretation by officials of s. 41 in relation to Aborigines, nor the administrative removal of Aborigines from the electoral rolls, were challenged in the courts. Nor, despite the fact that it was confronted with issues relating to the voting rights of other groups, were the administrative practices which denied Aborigines the vote raised in the Parliament until the 1940s.⁽⁵²⁾

In 1923, however, there was a challenge in the High Court by a Japanese-born British subject, Jiro Muramats, whose application for enrolment for Commonwealth elections had been refused by electoral officials, even though he was enrolled for Western Australian elections.⁽⁵³⁾ Muramats lost the case on account of a technicality in the Western Australian legislation which denied him a vote even though his name was on the electoral roll. The importance of the case, however, was that Justice Higgins' judgement contained an opinion on the meaning of s. 41 which ran counter to the administrative orthodoxy. Justice Higgins held that but for the technicality in the Western Australian law Muramats:

In 1924 a magistrate in Melbourne upheld an appeal by an Indian-born British subject, Mitta Bullosh, whose application for enrolment had been rejected by the Commonwealth Electoral Office. The magistrate was influenced in his decision by the Higgins' interpretation of s. 41.⁽⁵⁵⁾ The Commonwealth Electoral Officer in Victoria believed that, if the decision stood, he would be obliged to accept applications for enrolment by those 'Aboriginal natives' of Australia, Asia, Africa and the Pacific Islands who were entitled to vote in State elections, and thereby significantly extend the franchise.⁽⁵⁶⁾ Initial plans by the Commonwealth Government to appeal against the magistrate's decision were abandoned in the face of increasing pressure to comply with previous undertakings made at Imperial Conferences, and to the Indian Government, to remove discrimination against Indians who were British subjects and were resident in Australia.⁽⁵⁷⁾ Instead the Government introduced legislation which dealt in the narrowest possible way with the dilemma caused by the decision in the Mitta Bullosh case. Legislation was introduced to make all Indians who were British subjects in Australia eligible to vote.

The object of the Bill, the Minister explained, was 'to remove the existing disqualification on racial grounds from adult natives of British India who are inhabitants of the Commonwealth'.⁽⁵⁸⁾ The Parliament was reassured that the total numbers involved were small (approximately 2300 in the whole Commonwealth) and would decrease as British Indians could no longer obtain permanent entry. The measure had bipartisan support. The several Senators who spoke argued that it was a just measure which would help dispel misconceptions in India about Australia's policies and, noting that there would be no relaxation of the White Australia Policy and that the Bill only applied to those Indians already domicile in Australia, expressed support.⁽⁵⁹⁾

The introduction of this legislation had presented the Parliament with an opportunity to examine all the exclusions in the franchise legislation, but it did the reverse. In the entire debate on the Electoral Bill 1925 there was not a single reference to the 'aboriginal natives of Australia', who were, and remained, excluded by exactly the same clause in the Act which had denied Indians Commonwealth voting rights.⁽⁶⁰⁾ Nor, despite the interest shown in the meaning and effect of s. 41 during the debate on the franchise in the First Parliament, was there any discussion of it in 1925. On both sides of the Parliament there was an eagerness to deal quickly with the internationally embarrassing matter of discrimination against British Subjects without questions about the rights of other groups being raised.

The Northern Territory

Under s. 122 of the Constitution the Commonwealth Parliament can 'make laws for the government of any territory'. Thus, in 1911 when the Northern Territory was transferred to the Commonwealth from South Australia, the Commonwealth Parliament obtained undivided law-making power over the Territory.

The Commonwealth Parliament obtained this full legislative power at an important time. Aborigines were the majority population in the Territory and many still lived in a frontier situation on cattle stations or in more remote areas beyond the frontier where there had been very little contact between Aborigines and Europeans. It was open to the Commonwealth Parliament to attempt to regulate the dispossession of Aborigines from their land and to bring some enlightenment to the administration of the 'colonial situation' in the Northern Territory.⁽⁶¹⁾ With the lessons of what had happened in each of the British colonies in Australia it might have been possible for the Commonwealth Parliament, with full law-making power, to seek better outcomes for Aborigines than had been achieved in any of the States. However, given the attitudes which had already been expressed in the Parliament about Aboriginal Affairs it is not surprising that the question of Aboriginal rights in the Northern Territory was not raised in the debate on the Northern Territory Bills. As Yarwood and Knowling observe, there appeared to be no 'awareness that the Commonwealth was embarking on an important responsibility, in the exercise of which the world might measure, some day, its humanity and generosity.'⁽⁶²⁾

From the outset members of the Parliament indicated a preparedness to 'turn their backs' on the Northern Territory. The provisions in The Northern Territory (Administration) Act 1910 for the administration of the Territory were brief and were dealt with briefly by the Parliament. The Act established the position of Administrator for the Territory, who was responsible to the Minister for External Affairs; the Commonwealth Parliament's legislative power in relation to the Territory were delegated to the executive branch. In essence the Parliament handed its new legislative powers to the Government. Section 13(1) stated:

Although the Act required the tabling of the Ordinances in both Houses, and provided for their disallowance by either House, it is a notable feature of the Parliament's attitude to the governance of the Northern Territory that it so readily delegated its legislative power.⁽⁶³⁾ Normal Commonwealth laws operated in the Territory in the same way as elsewhere in Australia and Commonwealth Departments continued to operate directly in the Territory, but in relation to those matters which would otherwise be State matters, the Commonwealth governed through an Administrator.⁽⁶⁴⁾

The legislation transferring responsibility for the Northern Territory from South Australia, the Northern Territory Acceptance Bill 1910, was given much closer attention. Almost the entire debate was concerned with the cost to the Commonwealth. The legislation ratified an agreement which had been made between the Commonwealth and South Australia, which included commitment to complete the railway line from South Australia to Darwin. More than anything in the Bill the matter of the railway line took up the Parliament's time.⁽⁶⁵⁾

Amongst all the words spent on the proposed railway line one matter-the value of pastoral leases and the profitability of the cattle industry-did indirectly foreshadow issues which were to be central to race relations in the Territory. Senator R. J. Sayers (Free Trade-Liberal, Qld) observed that leases on 'enormous estates' of thousands of square miles, with up to 42 years to run, would 'be made very valuable by the construction of a railway at the expense of the Commonwealth.'⁽⁶⁶⁾ For reasons unrelated to the railway (which ninety-nine years on still had not been built) the value of the land was to become a matter of continuing importance. The value of the 'enormous estates' did depend on the running costs of cattle stations, and for the next 50 to 60 years the question of the cost of Aboriginal labour was central to race relations in the Territory and was one issue relating to the Territory with which the Parliament did concern itself.

One provision of the Bill which attracted the attention of Parliamentarians proved to be more important than could have been anticipated. Under the heading Disposal of Crown Lands, s. 11 of the Act required that:

Opposition members, resigned to the fact that they did not have sufficient votes in either chamber to defeat it, spoke briefly against the measure, arguing that it would discourage immigrants settling in the Territory and would 'stand in the way of improvements being made'.⁽⁶⁷⁾ The question of type of land ownership continued to be a divisive issue and ultimately, with the Mabo and Wik decisions in the 1990s, became a matter which very directly affected indigenous rights to land.

The Northern Territory (Administration) Act 1910 gave the Territory no representation in the Commonwealth Parliament. Before its transfer to the Commonwealth the Northern Territory had had representation in the South Australian Parliament. Section 122 of the Constitution allowed the Parliament to grant representation to the Territory in either house but it was not until 1922 that the Territory gained representation and then only on a limited basis.⁽⁶⁸⁾ Even with one representative the Northern Territory was marginal to the party contest of the Parliament. Unless an issue in the Territory touched the broader Australian community, or affected important economic interests, it was unlikely to get much attention in the Commonwealth Parliament.

Legislating for Indigenous Peoples in the Northern Territory

The South Australian law governing Aboriginal Affairs in the Northern Territory, the Northern Territory Aboriginals Act 1910 (SA), which was in place when the Commonwealth took control was protectionist and segregationist and denied Aborigines the most basic legal rights. Modelled on the Queensland Aboriginals Protection and Restriction of the Sale of Opium Act 1897 it was in line with laws which had been enacted in all the mainland States. Accounts of deprivation and economic exploitation and abuse of Aborigines in remote areas had led to public pressure for the adoption of protectionist measures which, whatever the motives of the proponents, took the form of segregationist laws, making Aborigines an institutionalised and administered people subject to the direction and control of officials.

The first Ordinance relating to Aborigines made under Commonwealth control of the Northern Territory, the Aboriginal Ordinance 1911, and the Regulations made under it, contained very similar provisions. On its face the Ordinance was designed to protect Aborigines from exploitation. The employment of Aborigines was subject to the control of a Protector or Sub-Protector and Europeans could be prohibited from entering Aboriginal camps and under subsection 6 (1) there was power to remove Aborigines where:

However, whatever 'protection' was achieved it also entailed the denial of rights. Aborigines were placed under the direction of the Protector. Aborigines could be excluded from designated areas and the Protector was given power to have Aborigines taken into custody. The Ordinance also gave to the Protector the powers that were used in the removal of part-Aboriginal children from their parents. The Protector was made the legal guardian of every Aboriginal and part-Aboriginal child under the age of 18, and under s. 3(1) of the Act was:

In 1918 a new comprehensive Aboriginal Ordinance intensified the existing law's protectionist and discriminatory provisions. The definition of 'Aborigine' included 'aboriginal natives of Australia and of the adjacent islands', and depending on their circumstances and gender, some 'half-castes'. 'Half-castes' living as the spouse of an Aborigine, and 'half-castes' who associated and lived with Aborigines were included in the definition. All male 'half-castes' under the age of 18, and female 'half-castes' who were 'not legally married to a person who [was] substantially of European origin or descent' were defined as Aboriginal.

The Protector was given extraordinary powers and Aborigines were subject to extraordinary restrictions. Aborigines, as defined by the Ordinance, could be directed to live on Reserves unless employed. The Protector (and police) could arrest Aborigines without a warrant for breach of an Ordinance and could order Aborigines to move from one reserve to another or to move their camp. Aborigines were prohibited from entering hotels and locations could be declared prohibited areas.

Under the Regulations made in 1919 Aborigines who worked and lived in towns could not be 'at large' one hour after sunset without written permission. The penalty for a breach of the regulation was one month imprisonment.⁽⁶⁹⁾ Missions could be declared Aboriginal institutions for children and became important instruments for separating children with lighter coloured skin from their parents. The Ordinance put children sent to institutions under the control of the superintendent.

The Ordinance contained provisions which were rationalised in terms of the need to protect Aboriginal women, but they also reflected an official concern about the growth of the part-Aboriginal population. The effect of the 'protective' measures was to even further lower the status of Aboriginal women. It was an offence for non-Aborigines to 'habitually consort' with or keep an Aboriginal or 'half-caste' mistress or to have carnal knowledge of Aboriginal or 'half-caste' women. An Aboriginal women needed permission to marry a non-Aboriginal man.

The official position saw 'caste' or 'breed' or 'strain' as being a measure of, or determinant of, competence. Ordinances became more complex and convoluted as rules and regulations increasingly classified people, and their rights, entitlements and obligations in terms of their racial mix.

In the name of greater protection, subsequent amendments to the Aboriginal Ordinance increased the regulation and control of Aborigines. Over the next two decades officials were vested with more and more discretionary power over a wider and wider range of people. In line with developments across Australia Commonwealth policy in the Northern Territory aimed to separate and absorb the children with light coloured skin.⁽⁷⁰⁾

Another legal change in the Northern Territory, which was also in line with developments in the States, was the adoption of a system of exemptions. The Aboriginal Ordinance 1936 allowed Chief Protectors to conditionally exempt part-Aborigines from the provisions of the Ordinance. The system of exemptions was presented as a progressive measure which was aimed at Aboriginal progress and advancement. However, the ideology behind the system-its paternalism and cultural arrogance-and the bureaucratic and overbearing way in which exemptions were administered were deeply resented by Aborigines.⁽⁷¹⁾ Although an exemption could release an individual from the restrictions of the Act or the Ordinances and the control of officials, it could also drive a wedge into communities or even families (see below). In later years the importance of the exemptions extended beyond the fact that an individual could be freed from the restrictions and controls of the Ordinance. Exempted Aborigines became entitled to a range of other Commonwealth benefits which would otherwise have been denied to them as an 'Aborigine' as defined by the Ordinance.

The parliamentary record shows that the discriminatory Ordinances were accepted by the Parliament largely without complaint. There were, however, two matters which did provoke Parliamentary challenges to Northern Territory Ordinances; firstly, the terms under which land could be held in the Northern Territory, and secondly any suggestion that a minimum wage for Aborigines would be set by regulation, or that the Protector would acquire the capacity to regulate employers effectively.

Leasehold versus Freehold Land

Throughout 1911 and 1912 the Opposition attacked the Fisher Labor Government over its policy of making land available in the Territory only as leasehold. Opposition members argued that only freehold title would provide the security which would be necessary to induce settlers to take up residence in the Territory.

In August 1912 the Opposition moved in the Senate and the House of Representatives to disallow the Crown Lands Ordinance 1912 which set the terms for the leasing of Crown land in the Territory. Since the Act under which the Ordinance was made-the Northern Territory (Administration) Act 1910-prohibited the disposal of Crown land as freehold title it was not possible for the Opposition to achieve its ultimate objective by having the Ordinance disallowed. Nevertheless the Opposition argued that only short-term leases should be allowed as a temporary measure until it was possible, through a change in the legislation, to dispose of Crown land to freehold title.⁽⁷²⁾

As with the two Northern Territory Acts, in the course of a very lengthy debate on the Crown Land Ordinance and on land settlement in the Northern Territory, there was almost no mention of Aboriginal rights or of the future place of Aborigines in the Territory. However, the outcome of the debate was ultimately to be of great significance for Aboriginal rights in the Northern Territory. The existing Pastoral Leases in the Northern Territory had been made under South Australian law which explicitly preserved Aboriginal rights to enter pastoral leases and hunt and gather and take surface water. In the debate on the Crown Land Ordinance the Opposition attacked many aspects of the terms under which the leases would be held. There were objections to the powers of the Director of Lands, the 'reservations, covenants conditions and provisions' which could be placed on a lease, and the provision for periodic review of the rent. The preservation of certain Aboriginal rights, however, was not taken up directly.

Although the question of the terms of landholding continued to be raised periodically the step of converting leasehold to freehold was never taken.⁽⁷³⁾ There were a number of subsequent amendments to the Crown Land Ordinance but none of these removed the rights of Aborigines to 'enter and be on the leased land; take water; take or kill animals for food or ceremonial purposes; and take vegetable matter growing naturally'.⁽⁷⁴⁾

This reservation of Aboriginal rights had very important implications following the Mabo⁽⁷⁵⁾ decision in 1992 in which the High Court found that, contrary to previous legal decisions, native title to land had existed in Australia prior to European settlement, that it had survived the acquisition of sovereignty by the Crown and that although it was extinguished by deliberate acts of the Crown, such as the sale of a freehold title, where land had not been 'alienated' Indigenous peoples might still be able to claim some right to the land. This raised the possibility that some Aboriginal rights had been preserved on pastoral leases. In the Wik⁽⁷⁶⁾ decision in 1996 the High Court found that 'the granting of a pastoral lease ... did not necessarily extinguish all native title rights, and interests that might otherwise exist.'⁽⁷⁷⁾

At the time of the debate on the Crown Land Ordinance 1912 in the Commonwealth Parliament the accepted orthodoxy was that under Australian law Aborigines had no right to claim land on the basis of rights arising from prior occupation. To the extent that such rights were even contemplated it was supposed that Aboriginal rights would be accommodated through the creation of Aboriginal Reserves.

Aboriginal Employment in the Pastoral Industry in the Northern Territory

Throughout the 1920s there were press reports of Aboriginal deprivation in the North, and the Government came under pressure from humanitarians and Christian groups to improve the lot of Aborigines. There was extensive press coverage of a massacre of Aborigines in the north of Western Australia in 1926, and the subsequent investigations, and acquittal of two policemen charged with murder.⁽⁷⁸⁾ Humanitarian groups became more insistent in calling for reforms and for action by the Commonwealth Government. Eventually the cause was taken up, in a bi-partisan way, in the Parliament. In October 1927 Mr D. S. Jackson (Nationalist, Bass, Tas) called for the establishment of a Joint Select Committee to report on Aboriginal welfare. He moved (in part):

Mr Jackson described the 'pitiful' condition of Aborigines in institutions in the Northern Territory. Aborigines, he warned, would become a 'vanishing' people, like Indigenous peoples elsewhere in the world, unless action was taken. He said,

The motion was supported by Mr N. J. O. Makin (ALP, Hindmarsh, SA) who urged that consideration be given to the views of the Aborigines Protection Society of South Australia:

The proposal, he said, was not for total segregation. 'It would certainly be wrong to compel them to occupy certain areas'. However, in outback Australia, where Aboriginal well-being was so threatened by the appropriation of their hunting ground and water springs and by mistreatment it would be desirable:

The Nationalist Government of Stanley Bruce (1923-1929) resisted the establishment of a Joint Select Committee. Its preferred position had been to establish a Royal Commission into Aboriginal Affairs in all States and Territories but the States had not been willing to co-operate. The Minister for the Home and Territories, the Hon. C. W. C. Marr, urged the Parliament not to dwell on the wrongs of the past which, he said, could be detrimental to Australia's interest overseas.

However, the Government was also under pressure from outside the Parliament. Various deputations had urged reforms on the Government. The Minister had received a letter from the Anti-Slavery and Aborigines Protection Society of London and a deputation had called on the High Commission in London. The Aborigines Protection Society of South Australia and the Association for the Protection of Native People of the Commonwealth lobbied the Government, and a Petition from 7113 people, seeking the creation of a 'model Aboriginal state' was presented to Parliament.⁽⁸⁴⁾

In December 1927 the Prime Minister announced that rather than agreeing to the establishment of a Joint Select Committee or a Royal Commission, the Government would hold an inquiry into the conditions of Aborigines and 'half-castes' in the Northern Territory.⁽⁸⁵⁾ The Chief Protector of Aboriginals in Queensland, J. W. Bleakley was commissioned to conduct the enquiries. Bleakley was concerned to improve the material well-being of Aborigines and their prospects, but his Report on the Aboriginal and Half-Castes of Central and North Australia⁽⁸⁶⁾ was very much a document of its time. Bleakley accepted the paternalistic and protectionist policies of the day and advocated the continued separation of 'half-caste' children from their parents. There are many things that could be said about the Report but the point of interest here is the account to the Parliament of living and work conditions in the Territory.⁽⁸⁷⁾

Bleakley noted that the cattle industry in the Northern Territory was totally dependent on Aboriginal labour. Equally, Aborigines who had been deprived of their traditional mode of survival were forced to seek station employment. Employers were required to be licensed and to provide the most minimal conditions and facilities. In some areas where labour was in short supply employers paid a cash salary above the minimum and some employers provided reasonable conditions. However in many cases even the absolutely minimal conditions were not enforced and were not met. Aboriginal workers lived in camps on the cattle stations.

In relation to living conditions Bleakley reported that, '[a]lthough it is one of the conditions of employment that reasonable shelter be provided for all natives employed, at very few places inspected was there found any evidence of a real attempt to fulfil these conditions'.⁽⁸⁸⁾

In many places workers had to make shelter for themselves from waste material which 'usually, for lack of material ... were mere kennels and most unsanitary'.⁽⁸⁹⁾ No education was provided and Bleakley noted the opposition of some employers who believed that 'education spoils them, making them cunning and cheeky'.⁽⁹⁰⁾

A few employers, Bleakley observed:

Usually, however, this was not the case and 'as a result of the semi-starvation that often exists' young women in the camps were forced into prostitution.⁽⁹¹⁾

Bleakley made a large number of recommendations, most of which were in accord with the paternalistic framework and the racial stereotypes of the day. Among them, however, were a number of recommendations relating to the adoption of Regulations to enforce minimum wages, a fixed scale of wages for permanent workers and better living conditions. This caused great alarm in the Northern Territory cattle industry which opposed fixed wages, however minimal.

At the same time that the Bleakley Report was being finalised, another event in Central Australia put further pressure on the Government already under pressure in relation to Aboriginal Affairs.

Coniston Killings

In August 1928, in the vicinity of Coniston Station, 160 miles north-west of Alice Springs, a party led by police, was assembled to seek out Aborigines who had killed a white station hand.⁽⁹²⁾ There had been growing tension between Aborigines and Europeans in the vicinity. As pastoral expansion and drought put pressure on Aboriginal food and water supplies there had been threats against Europeans and some spearing of cattle and goats. In August-September the party killed at least 31 Aborigines. When the news made its way to the Department of Home Affairs, and the Australian and overseas press, the Government was inundated with representations from humanitarian, church and missionary, and Aboriginal protection societies seeking a broad independent inquiry.⁽⁹³⁾ Under pressure, the Government established a Board of Enquiry to be chaired by A. H. O'Kelly, a Police Magistrate from Queensland, with two other members-P. A. Giles, a Police Inspector from Oodnadatta in South Australia, and J. C. Cawood, the Police Commissioner for Central Australia.

The Board was to inquire into whether the shooting of the Aborigines was justified and:

In less than three weeks, having interviewed thirty witnesses (all but one of whom were Europeans), the Board submitted its Report. The Board was, it said, 'prepared to believe the evidence of all witnesses', and concluded that the shootings had been justified. Further, it found that:

On the reasons for the Aborigines' actions the Board concluded:

Hartwig has made a detailed analysis of the findings in relation to the Proceedings of the Enquiry, and other accounts and facts that were not collected by the Board. He argues that many of the conclusions of the Board are inconsistent and are contradicted by the evidence. The various justifications for the killings-self-defence, to prevent escape, and the 'unfortunately-drastic-action-had-to-be-taken' explanation-were garbled and contradictory.⁽⁹⁶⁾ No evidence was taken from the relatives of those who were shot or other Aborigines. Accounts from the other side, and other evidence pointed to quite different conclusions. A number of the Board's findings in relation to the reasons for Aboriginal attacks were simply ridiculous. There was no 'Walmalla tribe', the only woman missionary in Central Australia was stationed in a quite different area and there was no evidence of 'unattached missionaries' operating in the area or of the presence of escaped prisoners from Darwin.

Many of these matters were taken up with the Government by humanitarian and mission organisations who argued that the hastily written Report looked like a 'white-wash' undertaken by a Board which was far from impartial. There were no truly independent members representing outside organisations, and the Aborigines had no legal representation. In the time that it took to write the Report the Board could not possibly have examined the matter carefully. It was unreasonable to believe that in the circumstances the killing of at least 31 Aborigines (with none wounded) had been justified.⁽⁹⁷⁾

Although many newspapers accepted the Board's Report without criticism there were persistent complaints from Aboriginal protection and church organisations. Continuing reports of the condition of Aborigines in the Territory made it difficult for the Government to ignore the public demands for action. However, it appears that whatever damage the Coniston incident could do to the Government's standing, it was more worried about the recommendations of the Bleakley Report on wages and working conditions in the cattle industry. Along with the cattle industry the Government opposed the implementation of Bleakley's recommendations on minimum wages and conditions but now faced growing public pressure over Aboriginal conditions and mistreatment of Aborigines in the Territory.

The Government chose to conflate the issues raised in the two reports and to defuse the issue by holding a conference of a wide range of interested parties. The Findings of the Board of Enquiry were tabled in the Parliament on 7 February 1929, and the Bleakley Report the next day, and the Minister for Home Affairs, the Hon. C. L. A. Abbott, announced that a meeting of all interested parties would be held in April. The participants included departmental officials, representatives of the cattle industry, mission and church societies from around Australia, Aboriginal rights protection societies, women's organisations, and anthropological societies.⁽⁹⁸⁾

What is remarkable about these events is that in the Parliament there was absolutely no discussion of either Report after they had been tabled. The Findings and Evidence of the Board of Inquiry were ordered to 'lie on the Table', and although a copy was made available to the Association for the Protection of Native Races, it was never printed.⁽⁹⁹⁾

For the remainder of the Government's term there was no debate in the Parliament on either the Bleakley Report or the Findings of the Board of Inquiry. The Government had felt under sufficient public pressure to consult with a wide range of community organisations but in the Parliament nothing was said.

The public reaction was such that subsequent Governments were careful to try and ensure that such incidents did not happen again. When, in August 1933, it was reported that a 'show of force' was planned against Aborigines at Caledon Bay and Woodah Island area in eastern Arnhem Land the public reaction forced the Government to hold back and immediately to deny that any punitive expedition was contemplated.

The incident in the Caledon Bay and Woodah Island area arose out of the killing of police Constable McColl who at the time had been a member of a police party investigating the killing of five Japanese trepanger fishermen by Aborigines. Again, despite the public attention and press coverage, there was almost no discussion of it in the Parliament. With the exception of a question by E. J. Ward (ALP, East Sydney, NSW) in the House of Representatives-who asked:

-the discussion related to the need to protect white settlers.⁽¹⁰⁰⁾

Debate in the Parliament on the matter then centred on accusations by H. G. Nelson (ALP, NT) against meddlesome missionaries and the Association for the Protection of Native Races. Nelson called for stronger action by a better equipped and stronger force of police against 'atrocities by aborigines'.⁽¹⁰¹⁾ The Minister for the Interior (Hon. J. A. Perkins) defended the government's restraint:

Although the 'show of force' had been called off, the events which followed were very revealing about the administration of law and justice in the Northern Territory. The suspects were persuaded-by missionaries who acted as go-betweens-to give themselves up and go to Darwin on the understanding that they would receive a fair trial.⁽¹⁰³⁾ Those accused of killing the Japanese were found guilty at a trial in the Northern Territory Supreme Court conducted by Judge Wells and sentenced to 20 years imprisonment. The same month, Tuckiar, the Aboriginal man accused of killing Constable McColl-a European-was tried by the same Judge. In an extremely flawed trial, where Tuckiar was incompetently defended, he was found guilty and sentenced to death. There were many reasons for community outrage-most obviously there was the harsher sentencing when the victim was a European. There were also reports of extremely prejudicial statements by the Judge. It was reported that in the previous case Judge Wills had said of the Aboriginal prisoners, '[p]ossibly the best and kindest thing to do to them is to hang them'.⁽¹⁰⁴⁾

Tuckiar's conviction was quashed in the High Court.⁽¹⁰⁵⁾ The Court held that there were flaws in the conduct of the trial; that the Judge had misdirected the jury, that evidence had been admitted improperly and that the advocate for Tuckiar had not properly discharged his duty to his client.

The Court also made damning observations about the whole system of justice as it related to Aborigines in the Northern Territory. Mr Justice Starke said:

Mr Justice Starke also observed that '[Tuckiar] neither understands nor speaks English', and elsewhere that the:

These and subsequent events raised questions about the whole operation of the justice system for which the Commonwealth Government was responsible. Similar questions, about how the law might be applied in such circumstances, and about how the system might be changed to make greater allowance for cultural difference, had been raised at protest meetings and in submissions to the Government. ⁽¹⁰⁸⁾Surprisingly, however, in the Parliament these matters were not pursued.

The Coniston massacre may have signalled the end of the old ways in relation to punitive expeditions⁽¹⁰⁹⁾ but there was one other glaring matter which came out of the two Reports which had been tabled in the Parliament in February 1929: the condition of Aboriginal workers in the Northern Territory cattle industry. The Bleakley Report had exposed terrible conditions and great abuses in the cattle industry.

Aboriginal wages and conditions of employment in the cattle industry, however, were matters on which there was determined opposition to reform. The author C. D. Rowley observed that:

The Scullin Labor Government, which was elected on 12 October 1929, held only seven of the 36 places in the Senate. Even the most minimal reforms proposed for the Territory by the Scullin Government were opposed in the Senate.

In March 1931 Senator Sir Hal Colebatch (Nationalist, WA) successfully moved to disallow Ordinances because regulations made under them set minimum standards of housing of workers on pastoral properties in the Northern Territory which he said would:

Senator Colebatch argued that regulations were:

Supporting the motion for disallowance Senator Sir George Pearce (Nationalist, WA) argued that:

Government Senators argued that the Ordinance and regulation did no more than require 'decent accommodation' but, with only seven Senators, were not able to prevent the disallowance.⁽¹¹³⁾

Opposition Senators' determination at this time to prevent any further regulation of Aboriginal employment affected their attitude to other questions. At face value the Northern Territory (Administration) Bill 1930, had nothing to do with Aboriginal matters, but in the debate in the Senate the question of Aboriginal wages and conditions in the cattle industry was never far below the surface. The Bill provided for some limited self-government in the Territory through an elected Advisory Council with the power to make non-financial Ordinances, subject to the approval of the Commonwealth Cabinet, and the power of disallowance by either House of the Parliament.⁽¹¹⁴⁾ The measure was opposed by Nationalist Senators who argued that it involved an unnecessary cost, but also that it was likely to result in the election of Australian Workers Union officials by the 'loafers' and 'wild lawless men' of Darwin.⁽¹¹⁵⁾ As elected members of the Advisory Council, it was argued, union organisers would be able to travel the Territory at the taxpayers' expense, and the ordinance-making power would be used to increase Aboriginal wages to serve the ultimate goal of the Union.⁽¹¹⁶⁾

Throughout the debate on the Northern Territory (Administration) Bill Opposition Senators attacked a Regulation which had been made under the Aboriginals Ordinance to increase the wages of Aboriginal drovers.⁽¹¹⁷⁾ One exchange between Government and Opposition Senators is instructive about attitudes to Aboriginal labour:

Pressures for Change

Throughout the 1920s and 1930s there was continuing pressure from organisations outside the Parliament for reform in Aboriginal Affairs. There were, in the late 1920s, in Australia at least thirty different organisations concerned with Aboriginal welfare.⁽¹¹⁹⁾ The activities of these humanitarian and church organisations were given impetus by the development of anthropological studies in Australia. Revelations in the Bleakley Report about living conditions in the North, and other accounts from the outback-the Coniston killings and the trial of Tuckiar, and a massacre of Aborigines in the Kimberleys in 1926-added to the pressure for change. Also, Australia was coming under increasing international pressure in relation to the treatment of Indigenous peoples.⁽¹²⁰⁾

Also at this time, in response to increasingly restrictive legislation in the States, and worsening conditions on Aboriginal reserves, a number of Aboriginal political organisations formed.⁽¹²¹⁾ These included the Australian Aboriginal Progressive Association and the Aborigines Progressive Association in New South Wales, the Native Union in Western Australia and the Australian Aborigines' League in Victoria. Amongst the more prominent Aboriginal leaders and campaigners were Joe Anderson, William Cooper, William Ferguson, Pearl Gibbs, Fred Maynard and John Patten. The operation of these organisations was severely handicapped by the use of the restrictive laws by officials to intimidate Aboriginal supporters and isolate Aboriginal activists. Although, with minor exceptions, the membership of these organisations was exclusively Aboriginal they did obtain support from white groups and individuals-in some cases from unions and left-wing groups and also in the case of the Aborigines Progressive Association, from right-wing nationalists.⁽¹²²⁾

The specific concerns of these organisations included the forced removal of Aboriginal children from their families, the dispossession of Reserve land, the authoritarian management and poor conditions on Reserves, the exclusion of Aboriginal children from the normal education system and the denial of social welfare benefits to Aborigines.

While there was not unanimity amongst all Aboriginal groups or their leaders about policies for the long-term advancement of Aborigines, the overwhelming concern was the removal of the legal discrimination based on 'race'. Some Aboriginal leaders advocated special measures such as Aboriginal representation in the Commonwealth Parliament, and supported the creation of inviolable reserves to protect 'primitive' Aborigines from white intrusions and to varying degrees the objectives of the organisations emphasised the importance of maintaining Aboriginal traditions and culture. However, the main thrust of the political activity was the achievement of legal equality with whites for all Aborigines and the repeal of the system of laws which denied rights and entitlements on the basis of 'race'.⁽¹²³⁾

In a large number of letters, publications and speeches Aboriginal leaders campaigned against the widely held view which saw 'development' or 'degree of civilisation' or capacity of an individual in terms of the degree of European ancestry, and against the legislation based on that belief. The organisations adopted a number of tactics to publicise their cause and to attract public support. William Cooper organised a petition to the King in the mid-1930s.⁽¹²⁴⁾ In 1937 Aboriginal activists were successful in publicising particularly oppressive actions of the NSW Protection Board and the extremely harsh conditions which some Aborigines had been subjected to in NSW. In November that year a NSW Parliamentary Select Committee on the Aborigines' Protection Board was established. Despite evidence of great abuses under the Board's administration, the work of the Committee faded out, and it made no report.⁽¹²⁵⁾

On Australia Day 1938 the Aborigines Progressive Association organised a conference of Aborigines in Sydney as part of a Day of Mourning as a protest against the celebrations being conducted for the sesqui-centenary of British settlement in New South Wales. Speakers at the Conference called for 'full citizenship rights' and full entitlement to social security benefits for Aborigines who lived a 'civilised' lifestyle, the repeal of oppressive 'protectionist' laws, an improvement of conditions on Reserves, an end to the removal of Aboriginal children from their families and full access to education for Aboriginal children. The Conference passed a resolution: