This month 128 years ago the ship Afghan arrived in Australian waters with 268 Chinese passengers and prompted a legal fracas, an episode recently cited by NSW Chief Justice Tom Bathurst as proof that Australia is “grounded in xenophobia.” To put it politely, Bathurst doesn’t have a clue
The inauguration of Donald Trump as 45th President of the United States brought forth a spate of Australian commentary deploring his views as “nationalist”. Former Labor foreign minister and New South Wales Premier, Bob Carr, said the election of “a loudmouth nationalist” to the White House meant Australia should reappraise its international alliances and adopt a new foreign policy stance: “More Asia. Less US.” The Greens declared themselves appalled at Trump’s election and “the politics of racism, misogyny and nationalism that Donald Trump represents”. Left-wing Perth academic Johan Lidberg summed up in New Matilda, saying Trump’s inauguration was symptomatic of a malaise sweeping the planet, not only in the US and post-Brexit UK but also in France, Sweden, Norway, Denmark, Holland, Austria, Poland, Hungary and, of course, Australia via Pauline Hanson’s One Nation. “The common denominators,” Lidberg wrote, “are nationalism and xenophobia. Has the mix of strong nationalism and fear of the other ever brought the world anything but conflict? The answer is no.”
The use of “nationalist” as a pejorative term is nothing new. I have written in these pages often enough that left-wing academics have long misused the notion that Australian history has harboured a deeply entrenched racist nationalism since the country was founded. During the so-called Cronulla Riots between Muslim and Anglo youths in 2005, the University of Melbourne feminist historian Marilyn Lake mocked the New South Wales Police Commissioner for saying those involved were un-Australian. “What is un-Australian about calling for racial exclusion in the name of the nation?” she asked. “Is not racial exclusion a deep part of our heritage, as traditional an Australian value as mateship?”
Nonetheless, I was still surprised to see the New South Wales Chief Justice, Tom Bathurst, coming out in support of similar sentiments. Bathurst spoke on February 2 in the middle of the Trump furore and only a few days after two prominent voices, former Howard government minister Ian Macfarlane and former Labor Party president Warren Mundine, both made appeals in the press for Australia Day to be shifted from January 26, the anniversary of the First Fleet’s landing, to a date supposedly less offensive to the Aboriginal political class. Opening the new law term, Bathurst drew on another contentious issue in Australian history to demonstrate where he stood.
Bathurst cited the “Afghan affair” of 1888 to demonstrate how “one of the most serious threats to the rule of law in Australia was grounded in xenophobia”. In a thinly veiled comparison with Donald Trump, Bathurst said the New South Wales Premier in 1888, Henry Parkes, used “inflammatory language that we are perhaps not unfamiliar with today”, in a racist bid to prevent Chinese passengers disembarking from a ship, the Afghan, in Sydney Harbour and to permanently bar all other Chinese from entry. As Bathurst tells the story, Parkes defied a Supreme Court decision that the detention of the Afghan’s passengers was illegal and instructed his police force not to allow them ashore.
The Parkes government, Bathurst says, “maintained this defiance of the rule of law for a considerable period of time, leading Chief Justice Darley to admonish the government’s actions as unprecedented and in flagrant disregard of the law”. Eventually, the government conceded and allowed the detainees to land. According to Bathurst, the incident was a victory for the wiser heads of the legal profession against the baser instincts of populism. It “demonstrates the role of the judiciary and the profession in promoting equality, fairness and the rule of law, in spite of popular sentiment”.
This essay appeared in a recent edition of Quadrant.
Click here to subscribe
Bathurst’s account of these events clearly reflects his desire to make a political point, not just in favour of the rule of law as it was applied 129 years ago, but also against politicians in our own time who might appeal to “popular sentiment”, that is, who invoke populist prejudices against people of a different race.
However, Bathurst’s account of the Afghan affair leaves a lot to be desired. Had he done a little more research into the newspaper reports and parliamentary debates of the day (all now available online on Trove), to assess the reasons why the incident became a cause célèbre at the time, he might have found that Henry Parkes was not quite the populist villain he imagines.
The Afghan arrived in Australian waters in April 1888 with 268 Chinese passengers, half destined for New Zealand, the rest for Melbourne and Sydney. It first tried to land in Melbourne, where sixty passengers presented sets of naturalisation papers to verify their status as domiciled Victorians returning from overseas visits. Customs authorities found forty-eight of the papers were forgeries. Faced with a heavy fine if he landed illegal immigrants, the Afghan’s captain upped anchor and headed for Sydney.
At the time, illegal immigration had become a major colonial scandal. Customs officers had recently unearthed a traffic in naturalisation papers, including one case of 600 sets of forged papers which gave Chinese illegal entry. This practice, it is worth noting, was not uniquely Australian but was a common phenomenon on the west coast of the United States too.
At the same time, deputations to both the New South Wales and Victorian parliaments sought relief work for the growing number of unemployed in both colonies, and a reduction in immigration numbers. When news of the Afghan’s pending arrival reached Sydney, the labour movement, led by trade union newspaper editor John Norton, called a public protest meeting on May 3. A crowd of 5000 then marched to Parliament House in Macquarie Street demanding the Chinese not be allowed to land.
Henry Parkes exploited the situation for his own political advantage, at least initially. When the ship reached Sydney on May 6, Parkes forbade any passengers to land, except some holding bona fide New South Wales naturalisation papers.
Within a week, three more ships, the Tsinan, the Guthrie and the Menmuir, steamed into Sydney Harbour carrying between them 531 Chinese passengers. Parkes also forbade them to land and, on May 16, introduced a new bill to the Legislative Assembly, increasing the Chinese entry tax from ten to one hundred pounds, reducing the number of Chinese immigrants permitted entry, and denying them future naturalisation. Given advice that some of these proposals were unlawful and would not be approved by the Colonial Office in London, Parkes rhetorically declared he would defy the Crown and sever the British connection.
In the meantime, pro-Chinese lobbyists went to the New South Wales Supreme Court, where they argued that several of the passengers on the ships were Australian-resident Chinese who held valid exemption certificates and other papers. The Supreme Court agreed with the applicants. It held Parkes’s action was unlawful, those passengers still on the ships were illegally detained, and those with exemption certificates should be allowed to land.
Rather than defy the law for “a considerable period of time”, Parkes quickly acceded to the court’s authority. On May 19, three days after pushing his bill through Parliament, he changed his mind so that forty-two passengers from the Afghan and eight from the Tsinan who held the proper documents could land. Other would-be immigrants who were prepared to pay the entrance tax disembarked soon after. Once he had overcome his initial rush of blood to the head, Parkes took a conciliatory position. He set up a three-man board, with Sydney’s influential Chinese merchant Quong Tart one of its members, to provide compensation to those Chinese passengers who had exhausted their funds or otherwise suffered through the events.
In other words, rather than a major crisis in which racism threatened the rule of law in New South Wales, the Afghan affair revealed legitimate grievances on both sides. Lawful immigrants and Australian-domiciled Chinese held aboard ship were inconvenienced for a short time—less than two weeks—but eventually compensated for their trouble. And rather than an uprising of populist white racism, the underlying cause of the Chinese hardship was their own countrymen’s widespread practice of illegal immigration.
In this, the Afghan affair of 1888 was almost a precise antecedent of the Tampa incident of August 2001 when the Howard government, faced with the rise of a formidable trade in people-smuggling, took dramatic action to shut down the business. John Howard was accused by many intellectuals, academics and lawyers of exploiting the racist fears of Australian rednecks to ensure his “dark victory” in the election of November that year.
In reality, Howard’s only crime was to be sensitive to his electorate and to recognise that, in an egalitarian immigrant society like Australia, the people electors despise most are queue-jumpers. This is a distaste most keenly felt by recent immigrants who have abided by the proper rules for entry. Popular opinion is also patriotic and strongly endorses the principle that governments have a duty to preserve national borders. Neither of these sentiments threatens the proper rule of law—in fact, they would not exist without it.
It is disappointing to see a Chief Justice succumbing to what is essentially a fictional left-wing historical trope more at home in the sleazy halls of our universities’ humanities departments than in our Supreme Courts.