Caught in the act

By Kathy Stavrou

I began researching the racist legislation of NSW after accidentally catching on to what NSW governments were doing from 1836 (Vagrancy Act); with successive Parliaments of every political leaning using Legislation to identify and permanently extinguish the human/subject/citizenship rights of the Aboriginal peoples of New South Wales, especially their land possession rights. First I stumbled upon the cleverly concealed and thereby suppressed words of the newly enthroned Queen Victoria in 1839, in an Ordinance which plainly spelled out the British subject status and rights of the Aboriginal Tribes and their Elders.

Well it just went from there.

As a law student I had discovered Hansards and Select Committee Reports and evidence, and realised what an incredible file of vile attitudes and behaviours towards the NSW Aboriginal nations was concealed in plain view therein. Like Poe’s Purloined Letter, hidden in plain site. And in all those years of government decrees, promulgations and Laws, from the earliest NSW Government Gazette and Historical Records of Australia to SMH Parliamentary Reports to Hansard Votes and Proceedings to Select Committee Reports and Legislation, I scoured to find and photocopy and convert into Word, every single reference to Aboriginal people by NSW Governments since 1788.

In all those years 1836 – 2006, from the feeble beginnings of representative government in NSW, only a tiny handful of MPs and MLAs have ever dared to speak up for Aboriginal people, and when they did it was probably at 3.00 am to an empty House and against their own Party’s policies, with dire and vicious attacks on their words, in Debate, Questions etc to follow. Remarkable standouts were MA Davidson MLA, in Parliament 1918-1948, and Col Markam MP in the 1990s.

Grim Tales from History

“A Negative Bill of Rights for New South Wales Aborigines, the Aborigines Protection Acts 1909-1943.”

What are “rights”?

Definition: rights [Websters Dictionary (1952)] “What is lawful, a just and fair claim to anything whatever; power, privilege, property that belongs to a person by law, nurture, or tradition; also that to which one has a just claim as in the rights of the laborer; an inherent right to non-interference; the right to acquire property.”

The Petition of Right, 1628, was an important document setting out the rights and liberties of the subject as opposed to the prerogatives of the crown S 111 “And whereas also by the statute called ‘The Great Charter of the Liberties of England,’ it is declared and enacted, that no freeman may be taken or imprisoned or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.”

Upon the arrival of British law in New South Wales in 1788, the Aborigines became British subjects and were supposed to have British subject rights.

From 1834, all slaves in the British colonies were “absolutely and forever manumitted.”

But a series of racist Acts in New South Wales, from the 1836 Vagrancy Act onwards, progressively extinguished these rights, with the aim of keeping the Aborigines politically powerless and landless.

The eight Aborigines Protection and Aborigines Acts 1909-1969 were used to systematically identify and suppress every possible Aboriginal subject, civil and legal right, with the purpose of permanently disallowing Aboriginal land ownership.

The Act of 1909 was “An Act to provide for the protection and care of aborigines; to repeal the Supply of Liquors to Aborigines Prevention Act; to amend the Vagrancy Act 1902, and the Police Offences (Amendment) Act, 1908.”

The following rights were extinguished by this Act:

The right of an Aboriginal free man and British subject to protect himself and his family, especially by recourse to the Law and its guarantee of his rights; a general right of free people to have a degree of self-determination and protection within the law; the right NOT to be defined in the law by race (no other British subject/Australian citizen was discriminated against in this way); to drink alcohol in regulated premises (meaning that they will be exploited and will be more likely to drink methylated spirits and adulterated alcohol); right of free men to live where they chose; right to own personal property; the right of free men to have custody and maintenance of their own children and to choose their education; to take care of their own interests and welfare and to use the legal system to protect themselves against “injustice, imposition and fraud”; to own property and to freely come and go; right to privacy on own land (“A man’s home is his castle”); to own property including land, buildings and livestock; the right to consume alcohol, particularly the right to consume it on regulated premises; the right to wander and camp, the right to freely associate with others (old Vagrancy Act,1836; “Whosoever, not being an aborigine, or the child of an aborigine, lodges or wanders in company with any aborigine, and, does not, on being required by a justice, give to his satisfaction a good account that he has a lawful fixed place of residence in New South Wales and lawful means of support, and that he so lodged or wandered for some temporary and lawful occasion only, and did not continue so to do beyond such occasion, shall be guilty of an offence against this Act.)”

Also extinguished: the right to choose own apprenticeship and spend own earnings as they chose; to control own children; to choose own apprenticeship, living place, or school; to live where they wanted to, and to live within towns; to own their blankets; to freely travel from State to State; to privacy in own home where laws have not been broken; to freely visit and remain with relatives and friends; to control the spending of own wages; to choose own medical treatment; to control own children without unreasonable intervention from others, and to own and control own property.

Aborigines Protection Amending Act, 1915.
An Act to amend the Aborigines Protection Act, 1909; and for other purposes.
This Act extinguished the right, for Aborigines, to rear and control their own children

Aborigines Protection (Amendment) Act, 1918.
An Act to amend the Aborigines Protection Act, 1909, and the Aborigines Protection Amending Act, 1915.

The following rights were extinguished by this Act: the right not to be defined or discriminated against on the grounds of race, and the right to choose place of abode.

Aborigines Protection (Amendment) Act, (1936).
An Act to make further provisions as to the protection and care of aborigines; to amend the Aborigines Protection Act, 1909, and certain other Acts, in certain respects; and for purposes connected therewith.

The following rights were extinguished by this Act: the right to travel freely about and to visit other States untramelled (n.b., State borders cut through Aboriginal Tribal Territories); to drink alcohol and associate freely with others in regulated premises; to choose where to live,and freedom of movement; to appeal against an unjust decision of an official; to freedom of domain and association; to rear and control own children; to sell own labour and spend own earnings; to choose own medical treatment; to be Aboriginal without implication that it is a crime (word “complaint”); to give evidence on own behalf and object to unfair official decisions

Aborigines Protection (Amendment) Act, 1940.
An Act to provide for the dissolution of the Board for the Protection of Aborigines and for the constitution of an Aborigines Welfare Board; to amend the Aborigines Protection Act 1909-1936, in certain respects; and for purposes connected therewith.
4. (1) There shall be a board to be called the “Aborigines Welfare Board” which shall consist of ten members.

The following rights were extinguished by this Act: the right not to be “assisted in obtaining employment”; to retain own culture and not to be “assimilated”; not to be interfered with and summarily inspected, to choose own training; not to have your life arbitrarily controlled by the Police; to control, and live with own children; to live with your own family; to choose your own apprenticeship and employer; to choose your own religion; to be paid for your work (slavery had been abolished in all British territories in 1834); to be maintained and have your education and training decided by yourself/ family; to terminate your own unsatisfactory employment and apprenticeship; to communicate with your family, or others whom you choose to have assist you ie lawyers, Aboriginal Members of the Board, political activists (see Vagrancy Act 1836).

Aborigines Protection (Amendment) Act, 1943.
An Act to provide for the reconstitution of the Aborigines Welfare Board; to constitute the Aborigines Welfare Board a body corporate, and to extend its powers, authorities, duties and functions; for these and other purposes to amend the Aborigines Protection Act, 1909-1940; and for purposes connected therewith.

The following rights were extinguished by this Act: Aborigines were appointed to the board, but subject to regime in which they had to have permission to visit Reserves, and could not encourage criticism of board); the right to own property; the right to be Aboriginal with dignity; to be free from arbitrary restriction/ have to have a certificate (“DOG TAG”) (as in South Africa, Nazi Germany), and the right to live with own family.

A lot of the Speeches about Aborigines in Hansard, and most though not all (yet) of the NSW Legislation referring specifically to Aborigines can be found on my clunky old-crying out for updating, chronologically ordered list on www.kathystavrou.net: “Caught in the Act, New South Wales Government Acts of Bastardry Against Aboriginal People 1788-2005” by Kathy Stavrou, many scanned as shareable Word documents. It is a work in progress.