In a majestic six part series, Dr George Venturini takes an in-depth look at the proposal to recognise Indigenous Australians in the Constitution, asking whether it will produce the positive effects on reconciliation hoped for.
In this second part, Dr Venturini looks at Australia’s early history of race violence and Indigenous massacres — and details how racism was intrinsic to Australia’s Constitution at Federation.
On Recognising Aboriginal and Torres Strait Islander Peoples in the Australian Constitution: a belated homage or yet another swindle (Part 2)
Building Australia with fear, violence and racism
The origins of the ‘White Australia’ policy can be traced to the 1850s. White miners’ resentment towards industrious Chinese diggers culminated in violence on the Buckland River in Victoria, and at Lambing Flat (now Young) in New South Wales. The governments of these two colonies introduced restrictions on Chinese immigration.
Events on the Australian goldfields in the 1850s led to hostility towards Chinese miners on the part of many ‘whites’. The hostility was to affect many aspects of relations between the two groups for the following century.
The Chinese generally worked in large organised groups, covering the entire grounds surface, so that if there was any gold there, the Chinese miners usually found it. They lived communally and frugally, and could subsist on a much lower return than ‘white’ people. The rural background of most of the Chinese diggers suited them very well to life as alluvial gold-miners: they were used to long hours of hard outdoor work as members of a disciplined team, accustomed to simple sleeping quarters and basic food, and were satisfied with a much smaller return of gold than the majority of the ‘whites’.
‘White’ resentment of the apparent success of the Chinese first surfaced as petty complaints: the ‘whites’ made stereotypical claims that the Chinese muddied the water holes, they worked on the Sabbath, they were thieves, they had insanitary habits, they accepted low wages and would drive down the value of labour. No evidence was ever proffered that any of these things were true. One could paraphrase: “Labour in a white skin cannot be free so long as labour in a [yellow] skin is branded.” Ignorant people were bound to be prejudiced. So, because the Chinese were distinctive in appearance, language and dress, they became classic targets for xenophobia, and surly resentment became systematic hatred.
Modern day haters of ‘the other’ are bound not to know what xenophobia means; they do however practice it with a certain formal politeness, restraint. “I am not a racist, but …”
Once again a question of money – a supreme governor in a society which has remained to this day wedded to mercantilism – gave rise to several violent protests against government policies across Victoria and New South Wales in the late 1850s and early 1860s.
The first anti-Chinese demonstration occurred in Bendigo, Victoria in July 1854. Some of these incidents took the form of outright attempts at excluding the Chinese from a goldfield, or a portion of it. Disputes between ‘white’ and Chinese miners flared into brawls at Daylesford and Castlemaine. A party of Chinese en route to the Victorian diggings from Robe discovered a new goldfield at Ararat, and were driven off their find by ‘white’ competitors.
Similar events occurred in New South Wales, which was just feeling the impact of significant Chinese immigration. In 1856, ‘white’ miners drove Chinese off the diggings at Rocky River in New England, the northern part of New South Wales. Serious clashes followed at Adelong in 1857 and Tambaroora in 1858.
The most notorious of these incidents was the so-called Lambing Flat Riot, actually a drawn-out series of incidents between November 1860 and September 1861 on the Burrangong goldfield in New South Wales. Several place names are sometimes used interchangeably when describing these events. Lambing Flat, the name which has attached itself most persistently to the events, was a sheep paddock where one of the more violent incidents took place.
The Burrangong riot was played out against the background of a contentious debate in the New South Wales Parliament over legislation to restrict Chinese immigration. Chinese numbers on the New South Wales goldfields had been relatively small, but were rising in the wake of restrictions imposed in Victoria. Restrictive legislation had also been proposed in New South Wales as early as 1858 in the wake of Victorian and South Australian laws.
Trouble had begun late in 1860 with the formation of a Miners Protective League [emphasis added], followed by mass meetings of ‘white’ miners evicting Chinese miners from sections of the Burrangong field.
In ten months of unrest at Burrangong, the most infamous riot occurred on the night of 30 June 1861 when a mass of perhaps 3,000 ‘white’ miners drove the Chinese off the Lambing Flat, and then moved on to the Back Creek diggings, destroying tents and looting possessions. About 1,000 Chinese abandoned the field and set up camp at a sheep station, twenty kilometres away. There were two triggers for the violence: in Sydney the Legislative Council had rejected the anti-Chinese bill, and a false rumour swept the goldfield that a new group of 1,500 Chinese were marching towards Burrangong. During the following days the police arrived, identified the promoters of the riot, and three were arrested two weeks later. What followed was an armed attack on the police camp by about 1,000 ‘white’ miners on the night of 14 July 1861. The police used fire power and mounted sabre charges, leaving one rioter dead and many wounded.
The police briefly abandoned the field, but then a detachment of 280 soldiers, sailors and police reinforcements arrived from Sydney and occupied the area for a year. The Chinese were reinstated on segregated diggings, the ringleaders of the riots were tried and two were gaoled. But the lesson was not lost on the Chinese.
The ‘occupiers’ attitude – both governments’ and ‘whites’ – resulted in a long list of ‘encounters’ with Indigenous Peoples that one should call ‘massacres in a process of extermination’.
Brutality was particularly savage in what became the colony of Queensland, with the consequence that the cost of such encounters there exceeded that of all other colonies. No complete list is possible because such events were generally veiled in secrecy and often called for the use of deceptive practices such the poisoning of wells, the ‘generous’ distribution of flour laced with arsenic and at ‘Christmas’ the offering of puddings laced with strychnine, the distribution of infected blankets, and the spreading of hitherto unfamiliar diseases. Those practices were, in the language of the time, considered more ‘safe’ – that is to say, less noticeable – than armed raids.
Many massacres were to go unknown and unpunished due to these practices, through what are variously called a ‘conspiracy’ or ‘pact’ or ‘code’ of silence, which fell over the killings of ‘natives’.
Still, at mid-1838, when parties of mounted and armed stockmen pursued ‘natives’ in the Gwydir River, a local magistrate branded the event as “a war of extirpation.” Such words enter the everyday use — as if ‘the natives’ were unwanted flora or execrable fauna; “vermin” was the frequently heard word.
There were more clashes in New South Wales and particularly in that part of the colony which became Victoria, against the Daung Wurrung and Dja Dja Wurrung, the Tarnbeere Gundidj and the Djargurd Wurrung tribes.
The ‘encounters’ with Wiradjuri along the Murrumbidgee River were a genuine war which lasted throughout the 1830s, 1840s and up to the 1850s.
Gippsland massacres, which resulted in the killing of up to 1,000 ‘natives’ have been recorded as occurring during 1840 to 1850, while hundreds died in raids along the Brisbane River, the Balonne and Condamine Rivers, the Dawson River, the Warrigal Creek, the Barwon and Narran Rivers and in the Mount Gambier region of South Australia. Some well-known perpetrators of these massacres became ‘folk heroes’ in the eyes of the ‘occupiers’: William Fraser of Queensland was one of them. He was reputed to have extinguished the Yeeman tribe.
The 1860s opened and continued with new massacres of men, women and children in Queensland and went on to conclude with ‘search and destroy’ expeditions in the Swan River colony, which later became Western Australia, near La Grange Bay and at the Dampier Archipelago. Hundreds of the Yaburara tribe were killed. The ‘event’ was celebrated with a monument still visible at Freemantle —the ‘Explorers’ Monument’.
There is more than one source to suggest the existence of a ‘conspiracy of silence’ about the massacres of Djara, Konejandi and Walmadjari peoples in Western Australia in 1887.
In the 1870s, there were further massacres of
“…blacks of the [northern Queensland] interior who would first receive their ‘baptism of fire’ … [becoming] acquainted with the death-dealing properties of the mysterious weapon of the white man…”
as a newspaper of the time chronicled.
In the same area, in 1874-75, according to a ‘white’ miner’s letter dated 16 April 1876, “the niggers got a dressing there”, leaving no doubt as to what the writer meant, which was complete with the invitation to “a visit from any number of phrenological students in search of a skull, or of anatomical professors in want of a ‘subject.’”
Among the many unrecorded episodes of police brutality, one well-known concerned the murder of 28 men and 13 girls of the Guugu-Yimidhirr tribe of far north Queensland in 1879; this was followed by the killing of 200 Kalkadoon people near Mount Isa in 1884; and of an unknown but large number of the Djabugay tribe in 1890. These were plain ‘state murders’.
This savagery was followed by the Barrow Creek massacre, in that part of South Australia which became the Northern Territory in 1911. Kaytetye people had suffered the abuse of their women and the closing of the only water source by ‘white’ men. A large police hunt killed some 90 Indigenous persons.
During 1880s-90s the ‘wars on blacks’ would continue in Arnhem Land, still in the Northern Territory, taking place at different locations. Men, women and children of the Yolngu clans of Gumatj, of Ganalpuynguh, of Djinba and Mandelpi were chased and shot dead by mounted police and men from the Eastern and African Cold Storage Supply Company, a company incorporated in South Australia and controlled by ‘honourable’ Melbourne businessmen as ‘proxies’ of English interests.
There were other forms of ‘protection’ — none of them disinterested.
Christian churches in Australia sought to convert ‘the natives’, and were often used by governments to carry out ‘welfare and assimilation policies’. Despite the many attempts at ‘detribalising’ them, the treatment by governments and landowners was so brutal as strongly to justify the position of people such as Professor Patrick Dodson, who became a minister of the Catholic religion, and is one of the co-Chairpersons of the Expert Report and prominent advocate of Indigenous Peoples’ right to land Noel Pearson, who was reared at a Lutheran mission in Cape York, and has written how Christian missions throughout Australia’s colonial history “provided a haven from the hell of life on the Australian frontier while at the same time facilitating colonisation.”
It would take more than a century before, from the 1960s, Australian writers would begin to re-assess the invaders’ assumptions.
In 1968, anthropologist Professor William E.H. Stanner described the lack of historical accounts of relations between the occupiers and the Indigenous Peoples as “the great Australian silence”. Historian Professor Henry Reynolds argued that there was a “historical neglect” of the Aborigines by historians until the late 1960s.
By the late nineteenth century, ‘dispersion’ – that is killing – and disease had devastated the Indigenous population. Social Darwinist ideas, loosely derived from Charles Darwin’s 1859 Origin of species, promoted the belief that Indigenous Peoples were headed towards extinction. Discourse around the ‘White Australia’ policy seldom mentioned them, and then only to dismiss them as an ‘evanescent race’ who would eventually disappear in contrast to the dynamic, virile, enduring, and therefore threatening, Asiatic races. The Japanese would occupy a peculiar position vis-à-vis the ‘White Australia’ policy.
A long period of control of Aboriginal and Torres Strait Islander Peoples would begin. Already in 1860, the State of South Australia had appointed a Chief Protector of the interests of Indigenous People. In the late nineteenth and early twentieth centuries, ‘protective’ legislation, known as the ‘Aborigines Acts’, would be enacted in all mainland States — in Victoria in 1869, in Queensland in 1897, in Western Australia in 1905, in New South Wales in 1909, in South Australia in 1911, and in the Northern Territory in 1912. The ‘Aborigines Acts’ could require people to live on reserves run by governments or in missions where their lives were closely regulated. By 1911, there were 115 reserves in New South Wales alone. Indigenous Peoples living outside reserves, in urban areas, on pastoral properties and in more remote areas, were spared the ‘reserve’ regime, but their lives were subject to ‘protectionist’ legislation. Otherwise they could apply to the Aborigines Protection Boards for an exemption from the legislation, known as a ‘dog tag’ (a touch of English cynophilia!)
The ‘Aborigines Acts’ imposed restrictions on personal interactions between Indigenous and non-Indigenous Peoples, and on Indigenous Peoples residing on and off reserves. The ‘Acts’ provided for controlling marriage, prohibiting alcohol consumption, empowering Protectors to place Aboriginal people on reserves, and imposing curfews in town. Through by-laws and regulations, as well as social convention, Indigenous Peoples were denied entry to swimming pools, picture theatres, hospitals, clubs and so on.
In some States and in the Northern Territory, the Chief Protector had legal guardianship over all Indigenous children, including those who had parents. The removal of Indigenous children from their families under the auspices of Protection Boards was common during this period. Employment of Indigenous Peoples was subject to a government permit or licence. Wages were routinely withheld from Indigenous workers; they were either paid directly to the Protector or food and clothing were provided in lieu of wages. The practice continues, particularly in the Northern Territory.
In the 1930s, legislators widened the definition of ‘Aborigines’ in order to formalise control over an increasing population of mixed descent. A bewildering array of legal definitions led to inconsistent legal treatment and arbitrary, unpredictable and capricious administrative treatment. An analysis of 700 separate pieces of legislation suggests the use of no less than sixty seven identifiable classifications, descriptions or definitions.
For example, in 1934 Queensland redefined ‘Aborigines’ as persons of full descent and ‘half-castes’, including ‘any person being the grandchild of grandparents one of whom is aboriginal’ and any person of Aboriginal extraction who, in the opinion of the Chief Protector, was ‘in need of … control’. In 1936, Western Australia came up with the notions of ‘quarter-caste’ or ‘quadroon’. And in 1963 a new ‘protective’ act excluded ‘quarter-castes’ from the definition of ‘natives’. Queensland introduced the concept of ‘quarter-caste’ and a new approach to classification which distinguished between ‘Aborigine’ – being a ‘full-blood’ – ‘Part-Aborigine’, ‘Assisted Aborigine’, ‘Islander’ and ‘Assisted Islander’. Such distinctions were retained until 1971, when a new act redefined ‘Aborigine’ by descent. Victoria had adopted such classification in 1957 and continued to 1972, when an ‘Aborigine’ came to be defined as an ‘inhabitant of Australia in pre-historic ages or a descendant from any such person’.
In 1937, the first Commonwealth-State Native Welfare Conference was held, attended by representatives of all States, except Tasmania, and the Northern Territory. The conference officially sanctioned the policy of ‘assimilation’: “[T]his conference believes that the destiny of the natives of aboriginal origin, but not of the full blood, lies in their ultimate absorption by the people of the Commonwealth, and it therefore recommends that all efforts be directed to that end.”
In 1961, the Native Welfare Conference again endorsed the policy of ‘assimilation’ as follows: “[A]ll Aborigines and part-Aborigines are expected eventually to attain the same manner of living as other Australians and to live as members of a single Australian community, enjoying the same rights and privileges, accepting the same responsibilities, observing the same customs and influenced by the same beliefs, hopes and loyalties as other Australians.”
Until about 1972, virtually all aspects of the lives of Indigenous Peoples were subject to control. Viewed by present day standards, fundamental human rights – such as freedom of movement, freedom of association, freedom of employment, control over property, and custody of children – were denied, and the law was characterised by systematic racial discrimination.
* * *
As early as the 1840s, there had been some attempts to promote the formation of an inter-colonial General Assembly to deal with matters of common inter-colonial interest, but the proposals did not meet with support from the colonists, whose interests were competing. The movement towards the formation of a single unity ultimately came from some of the more enlightened colonists. It was driven by concern about foreign affairs, immigration, defence, trade and commerce and industrial relations, and an obsession about the maintenance of the ‘white race’ against ‘coloured races’ within and the threat of immigration or invasion. Australia would be born with this feeling — as a frightened country.
There also developed in the 1890s a perception of ‘people’ or ‘race’ embedded in the idea of nationality. Australians of the nineteenth century, and beyond, would use the terms ‘people’ and ‘race’ interchangeably.
It was for Henry Parkes, recognised later as one of the ‘founding fathers of the Constitution’, to speak rather rhetorically of “The crimson thread of kinship [which] runs through us all.” That Constitution would grow out of moves towards a federation of the six self-governing colonies. Before 1901, ultimate power over these colonies – New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia – rested with the United Kingdom Parliament at Westminster.
During the 1890s, a series of conferences were held to discuss federation.
A Constitutional Conference in 1890 led to a Constitutional Convention in 1891. A Constitution Bill was adopted by that Convention but did not gain much acceptance. For a short time, the move towards federation lost its momentum.
The move was started again with a conference held in Corowa in 1893, organised by the Australian Federation League. That conference proposed that the legislature of each Australian colony pass an Act providing for the election of representatives to attend a statutory convention or congress to consider and adopt a Bill to establish a Federal Constitution for Australia. That plan was considered by a Conference of the colonial Premiers held in Hobart in 1895. The six premiers of the Australian colonies agreed to establish a new Constitutional Convention by popular vote. The Premiers decided that each colony would pass enabling Acts to choose ten delegates each to meet at a Convention to draft a Federal Constitution for consideration by each colonial parliament.
The new Convention met in Adelaide in March 1897 and then in Sydney in September 1897 and finally in Melbourne in January 1898. A proposed Constitution Bill was reconsidered and revised by a drafting committee. It was adopted by the Convention in March 1898. Referendums were subsequently held in each of the colonies and ultimately a majority of people in a majority of the colonies approved the proposed Constitution. Western Australia’s referendum was not held until July 1900, but it ended up supporting the Constitution.
A Constitution Bill incorporating the proposed Constitution was submitted to the United Kingdom Parliament. Subject to some changes relating to appeals to the Privy Council from the High Court, the Bill was passed by both the House of Commons and the House of Lords and on 9 July 1900 received the Royal Assent. The proclamation establishing the Commonwealth was signed by Queen Victoria on 17 September 1900 to take effect from 1 January 1901.
The Australian Constitution came into existence as a section of an Act of the United Kingdom Imperial Parliament. One of Australia’s famous jurists of the twentieth century, Sir Owen Dixon, Chief Justice of the High Court of Australia, would describe the Constitution as not being “a supreme law purporting to obtain its force from the direct expression of a people’s inherent authority to constitute a government” but as “a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King’s dominions.”
On that 1 January 1901 federation of the colonies was proclaimed at Centennial Park in Sydney by Australia’s first Governor-General, John Adrian Louis Hope, 1st Marquess of Linlithgow. Australia’s first Prime Minister was Edmund Barton, who held the position from January 1901 to September 1903.
The Constitution of the Commonwealth of Australia came into effect at federation, but this did not mean that Australia was now independent of Britain. When the United Kingdom approved colonial federation, it simply meant that the six self-governing states of Australia allocated some functions to a federal authority. Australia gained the status of a Dominion, which meant it remained a self-governing colony within the British Empire, with the Head of State being the British monarch. Until very recently, the British Government appointed Australia’s Governors-General and State Governors, who answered to the British Government.
All Dominions within the British Empire were declared
“equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations”
at the Imperial Conference of 1926. The Statute of Westminster 1931 ratified the discussions of the Imperial Conference. This meant that Australia and other Dominions such as Canada, New Zealand and South Africa could now conduct treaties and agreements with foreign powers, and manage their own military strategies. No longer, it seems, were the Australian Governors-General, Parliament and individual governors answerable to the United Kingdom. The British monarch could only act on the advice of the Australian Government.
On 9 October 1942, the Australian Parliament formally adopted the Statute of Westminster 1931 under the Statute of Westminster Adoption Act 1942.
Only on 3 March 1986 did Australia reache the next stage towards independence, when the Australia Acts came into effect. The Australia Acts declared that Australia had the status of a sovereign, independent and federal nation. Yet, the nation still retains Elizabeth II as head of state, but her position as Australia’s head of state is completely separate from her position as the head of state of any other country, including the United Kingdom. What the Australia Acts effectively did was remove the ability of the British Government to make laws for Australia, and removed the last legal link with the United Kingdom by abolishing the right of appeal to the judicial committee of the Privy Council. It was not until 1988 that the last state, Queensland, removed this from its statutes.
Some might very well say, as at least a powerful Indigenous movement proclaims, advocating for a republic, that Australia is still on a path to independence, because the country is still technically ruled by the British monarchy, even though that monarchy does not have any right to interfere with Australian laws.
As far as the Indigenous Peoples were concerned, the view shared by the overwhelming majority of the Convention delegates was that the ‘Aboriginal race’ was on the way to extinction. Their calculations were comforted by the reduction of the ‘native’ population from some 750,000 to less than 100,000.
Two sections of the Constitution dealt with ‘the aboriginal race’ or ‘the aboriginal natives.’ Another, Section 25, dealt with them only by way of inference.
Section 25, on ‘Provisions as to races disqualified from voting’, in Chapter 1, Part 3 of the Constitution, which deals with The House of Representatives, read and presently reads:
“For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of the race resident in that State shall not be counted.”
A specific provision was contained in Section 51 on the ‘Legislative powers of the Parliament’ and provides that:
“The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (xxvi) The people of any race, [other than the aboriginal race in any State,] for whom it is deemed necessary to make special laws:”
The words in square brackets were removed by the Constitution Alteration (Aboriginals) Act [No. 55 of] 1967, n. 2.
And Section 127 – Aboriginal natives not to be counted, provided that:
“In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.”
This section was repealed by the Constitution Alteration (Aboriginals) Act [No. 55 of] 1967, n. 2.
The Convention debates of the 1890s make clear that section 51(xxvi) was intended to authorise the enactment by the Commonwealth of racially discriminatory laws. In the original draft Constitution Bill of 1891, the proposal was for a grant of exclusive legislative power to the Commonwealth Parliament with respect to:
“[t]he affairs of people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorise legislation with respect to the aboriginal native race in Australia and the Maori race in New Zealand.”
At that time, New Zealand was a potential member of an Australasian nation-state which might also have included Fiji and other Pacific islands.
The course of the debates suggests that the former Premier of Queensland and Australia’s first Chief Justice, Sir Samuel Griffith, a so-called ‘liberal’, proposed the clause and explained:
“What I have had more particularly in my own mind was the immigration of coolies from British India, or any eastern people subject to civilised powers.… I maintain that no state should be allowed, because the federal parliament did not choose to make a law on the subject, to allow the state to be flooded by such people as I have referred to.”
As Professor Geoffrey Sawer commented, everything Griffith was concerned about could have been achieved under the immigration, aliens and external affairs powers. However, the Convention debates make clear that the power was regarded as important by the drafters of the Constitution. In 1898, the head of the (economic) Protectionist Party, Edmund Barton, from New South Wales, who would become Australia’s first prime minister and a founding justice of the High Court of Australia, commented that the ‘race power’ was necessary, so that
“the moment the Commonwealth obtains any legislative power at all it should have the power to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth.”
Arguing against a Commonwealth head of power, the future premier of Western Australia, Sir John Forrest, a ‘moderate’ (economic) Protectionist, contended:
“We have made a law that no Asiatic or African alien can get a miner’s right or do any gold mining. Does the Convention wish to take away from us, or, at any rate, not to give us, the power to continue to legislate in that direction? …. We also provide that no Asiatic or African alien shall go on our goldfields. These are local matters which I think should not be taken from the control of the state Parliament.”
Forrest also observed that
“[i]t is of no use for us to shut our eyes to the fact that there is a great feeling all over Australia against the introduction of coloured persons. It goes without saying that we do not like to talk about it but still it is so.”
Forrest was absolutely correct.
A South Australian delegate, James Howe, who was conservative on most matters, but had ‘a genuine concern for the plight of the poor’, commented:
“I think the cry throughout Australia will be that our first duty is to ourselves, and that we should as far as possible make Australia home for Australians and the British race alone.”
George Reid, leader of the Free Trade and Liberal Association, a future premier of New South Wales and fourth prime minister of Australia, agreed with Forrest that it was
“certainly a very serious question whether the internal management of these coloured persons, once they have arrived in a state, should be taken away from the state.”
He was prepared, however, to give that power to the Commonwealth because
“it might be desirable that there should be uniform laws in regard to those persons, who are more or less unfortunate persons when they arrive here.”
As Professor Sawer commented, the Convention debates in relation to section 51(xxvi)
“reveal only too clearly a widespread attitude of white superiority to all coloured peoples, and ready acceptance of the view that the welfare of such people in Australia was of little importance.”
It was clear from the very beginning that the obsessive preoccupation of the delegates was what to do with samples of the ‘coloured races’ already in Australia – mainly, but not exclusively, the Chinese and the Kanakas who had been kidnapped and brought to Queensland to provide the fortune of some of the delegates – but above all of keeping out ‘coloured races’.
Those of ‘coloured race’ residing in Australia would be disposed of with whatever means, mainly deportation. ‘The others’ would be kept out by the early passing of a restrictive immigration act. Introduced by Prime Minister Edmund Barton on 7 August 1901, the Immigration Restriction Act 1901 received the Royal Assent on 23 December 1901. By strictly limiting entry into Australia, it came to form the basis of the ‘White Australia’ policy. It also provided for illegal immigrants – the residing ‘coloured races’ – to be deported. The Act granted immigration officers – to be sure prejudiced and grossly mis-educated – a wide degree of discretion to prevent individuals from entering Australia. The Act prohibited various classes of people from immigrating, but most importantly it introduced the dictation test, which required a person seeking entry to Australia to write out a passage of fifty words dictated to them in any European language, not necessarily English, at the discretion of an immigration officer. The test allowed that kind of immigration officers to evaluate applicants on the basis of language skills.
The tenor of the Convention debates, with the exception of the contributions from Dr John Quick from Victoria, who was considered a member of the Protectionist Party, Charles Kingston, who was a ‘high protectionist’, and Josiah Symon, who was a member of the Free Trade Party, the latter two both from South Australia, spoke openly about their desire for laws applying discriminatory controls to ‘coloured races’. Particularly Quick and Kingston wanted to keep the ‘coloured races’ out. However, both urged that, once admitted, they should be treated fairly and given all the privileges of Australian citizenship. Kingston, in particular, expressed the view that if ‘coloured people’ were to be admitted to Australia, they should be admitted as citizens and enjoy all the rights and privileges of Australian citizenship:
“[I]f you do not like these people you should keep them out, but if you do admit them you should treat them fairly – admit them as citizens entitled to all the rights and privileges of Australian citizenship. …. We have got those coloured people who are here now; we have admitted them, and I do trust that we shall treat them fairly. And I have always set my face against special legislation subjecting them [to] particular disabilities … I think it is a mistake to emphasize these distinctions …”
The view of Josiah Symon was just as ‘radical’ for its time:
“It is monstrous to put a brand on these people once you admit them. It is degrading to us and to our citizenship to do such a thing. If we say they are fit to be admitted amongst us, we ought not to degrade them by putting on them the brand of inferiority.”
The incomparable American satirist Ambrose Bierce (1842-1913?) has a poignant definition for this kind of speaker:
“One who, professing virtues that he does not respect, secures the advantage of seeming to be what he despises.”
No serious need to deal with ‘the natives’ — by all, then, reasonable expectation they were supposed to disappear towards extinction, naturally.
In relation to other ‘races’, the records of the Conventions shows that some provisions suggested for inclusion in the Constitution were rejected so that the States could continue to enact legislation that discriminated on racial grounds. For example, the original Commonwealth Bill of 1891 provided that:
“A State shall not make or enforce any law abridging any privilege or immunity of citizens of other States of the Commonwealth, nor shall a State deny to any person, within its jurisdiction, the equal protection of the laws.”
This notion of ‘equal protection of the laws’ was intended to be imported from the Fourteenth Amendment to the Constitution of the United States. Such influence, of an inspirational and legal kind, was fashionable at the time — but not sufficiently so that the suggestion would gain favour with the delegates. The clause was voted down: 24 to 17.
Henry Higgins, a so-called ‘liberal’ delegate from Victoria and, later, a justice of the High Court, confirmed at the Melbourne Convention in 1898 that “we want a discrimination based on colour.”
In their 1901 Annotated Constitution, Quick and Garran said of the ‘race power’:
“[I]t enables the Parliament to deal with people of any alien race after they have entered the Commonwealth; to localise them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came.”
Professor Sawer, referring to the words ‘alien race’ in Quick and Garran’s work, suggested that they probably did not mean ‘alien’ in any precise sense of nationality law,
“but merely people of a ‘race’ considered different from the Anglo-Saxon-Scottish-Welsh-Cornish-Irish-Norman (etc. etc.) mixture, derived from the United Kingdom, which formed the main Australian stock.”
In 1910, Professor Harrison Moore wrote that section 51(xxvi) was intended to enable the Commonwealth to pass the sort of laws which before 1900 had been passed by many States concerning “the Indian, Afghan, and Syrian hawkers; the Chinese miners, laundrymen, market gardeners, and furniture manufacturers; the Japanese settlers and Kanaka plantation labourers of Queensland, and the various ‘coloured races’ employed in the pearl fisheries of Queensland and Western Australia.”
Such laws were designed “to localize them within defined areas, to restrict their migration, to confine them to certain occupations, or to give them special protection and secure their return after a certain period to the country whence they came.”
Only a country which plays loose with the meaning of words could have both a Constitution like the Australian one and, simultaneously, take pride in its ‘liberal’ and ‘democratic’ traditions.
It goes without question that the intended reach of section 51(xxvi) was not the regulation of the affairs of the ‘aboriginal natives’.
Professor Sawer correctly remarked that, notwithstanding that the constitutional conventions “contained many men who were in general sensitive, humane, and conscious of those less fortunate sections of the community”, no delegate appears to have suggested “even in passing that there might be some national obligation to Australia’s earliest inhabitants.”
There is no indication, from the records of the period, that those who were to form Australia’s first national government would give any chance to the possible significance of section 51(xxvi) for Aboriginal and Torres Strait Islander Peoples.
There was no discussion of their exclusion from the scope of the ‘race power’, and no acknowledgment of any place for them in the nation set up by the Constitution.
Only South Australia, in the 1890s, had made provisions for the placing of Indigenous People on the electoral rolls, so that they could be able to vote for delegates to the Constitutional Conventions. So, in the other colonies, Indigenous and Torres Strait Islander Peoples were not able to vote for delegates to the Conventions.
This exclusion from the framers of the nation’s Constitution continued a pattern of marginalisation and systematic discrimination, the consequences of which endure today. As Professor Megan Davis has correctly commented:
“There is a sense that, beginning with their exclusion from the constitutional drafting process in the late 19th century, Aboriginal and Torres Strait Islander people have on the whole been marginalised by both the terms and effect of the Constitution.”
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