Part Four of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.

A constitution for the 19^th century

In the intention of the occupying colonists their work was to provide a modern constitution – for the nineteenth century!

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 concept 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. Referenda 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 Australia reached the next stage towards independence: on that day 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 remove 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 – at least ostensibly – 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.” [Emphasis added].

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.” [Emphasis added] (G. Sawer, The Constitution, V. G. Venturini ed., Australia, A survey, Otto Harrassowitz, Wiesbaden 1970, 155).

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.” [Emphasis added.

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.” [Emphasis added] 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.” [Emphasis added]. 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.” [Emphasis added].

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 which 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.” [Emphasis added].

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 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 with 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. 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.”

Continued Friday with: A constitution for the 19th century (Part 2)

(Previous instalment: From terra nullius to Mabo)