Aboriginal Voting Myth

SIR: Wolfgang Kasper is wrong when he states that Aborigines “had been denied the vote at federal elections before 1967” (January-February 2015). It is regrettable that a man of his erudition should add his support to perpetuating that myth.

The first Commonwealth Parliament passed the Franchise Act 1902 which provided: “No aboriginal native of Australia, Asia, Africa or the islands of the Pacific, except New Zealand, shall be entitled to have his name placed on the electoral roll, unless so entitled under Section 41 of the Constitution.”

S. 41 stated: “No adult person who has or acquires a right to vote at elections for the more numerous Houses of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of Parliament of the Commonwealth.”

Before Federation there had been significant acquisition of Aboriginal voting rights in the colonies. However, the Commonwealth government ignored, as a matter of policy, the proper effect of those provisions until 1949, when the Commonwealth Electoral Act 1949 enfranchised federally “an aboriginal native of Australia … [who] is entitled under the law of the State in which he resides to be enrolled as an elector of that State and, upon enrolment, to vote at elections for the more numerous Houses of Parliament of that State”. That Act also gave the federal vote to Aboriginal serving or former members of the defence forces.

During the next decade, Victoria, New South Wales and South Australia passed legislation entitling Aborigines to vote at state elections. Aborigines were given the vote in West Australian state elections in 1962 and in Queensland state elections in 1965.

Further, in 1962 the Commonwealth passed legislation giving all Aboriginal adults the vote for Commonwealth elections with the proviso that an Aboriginal person had the option whether or not to have his or her name on the electoral roll.

Thus, Aboriginal people had the federal vote well before the 1967 referendum.

As to citizenship, the subject of another common myth, the Nationality and Citizenship Act 1948 made everyone born in Australia an Australian citizen: before that we were all, including Aborigines, British subjects.

The purpose of the 1967 referendum concerned two provisions of the Constitution, namely S. 51 xxvi and S. 127. S. 51 xxvi stated: “The Parliament shall, subject to the 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.” S. 127 stated: “In reckoning the numbers of people of the Commonwealth or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.”

S. 127 was simply concerned with calculating the population of the states for the purpose of allocating seats in the House of Representatives and per capita grants and preventing Queensland and Western Australia from gaining extra seats or funds due to their large Aboriginal populations. It was, of course, discriminatory.

The 1967 referendum was a vote on the Constitution Alteration (Aboriginals) Act 1967 which became law on August 10, 1967, following the referendum. The actual question in the referendum was: “Do you approve the proposed law for the alteration of the Constitution entitled—‘An Act to alter the Constitution so as to omit certain words relating to the People of the Aboriginal Race in any State and so that Aboriginals are to be counted in reckoning the Population’?” The successful referendum resulted in the deletion of the words “other than the aboriginal race in any State” in S. 51 xxvi and the deletion of the whole of S. 127 from the Constitution.

No doubt the myth that Aborigines gained the federal vote because of the 1967 referendum will continue, helped along by assertions like that by Wolfgang Kasper.

Mervyn Kimm
Mallacoota, Vic

SIR: It is hard to dispute Wolfgang Kasper’s central contention that constitutionally entrenched discrimination in favour of one ethnic group leads to social disharmony and is self-defeating. But he is in error to characterise the likely referendum on indigenous recognition as seeking to entrench positive discrimination.

On the contrary, the most likely referendum proposals will seek to remove two race-based clauses. One is an historical dead letter clause sanctioning denial of voting rights based on race (S. 25) and the second empowers the Commonwealth to make laws that discriminate on the basis of race (S. 51 xxvi). Given Mr Kasper’s view that race is a problematic concept at best, a view fully shared by the 2011 Expert Panel, he should logically support these changes.

Mr Kasper is also in error when he repeats the common misconception that the 1967 referendum granted voting rights to indigenous Australians. It did not. That was achieved federally by the 1962 Electoral Act. Moreover, Aboriginal men were enfranchised in state elections in South Australia, Victoria and New South Wales in the 1850s, although it took until the 1960s for this to occur in Western Australia and Queensland. The 1967 referendum repealed S. 127 under which Aborigines were not counted in the national census. Somewhat bizarrely, it also amended S. 51 xxvi to extend the Commonwealth power to pass laws based on race to indigenous peoples who were previously excluded from this power.

In proposing the repeal of S. 51 xxvi, the Expert Panel proposed retaining the existing Commonwealth power to pass laws with respect to Aboriginal and Torres Strait Islander peoples so as to preserve the power under which cultural heritage protection, land title and incorporation laws had been passed and to preserve the validity of those laws, a recommendation also supported by the Joint Select Parliamentary Committee in its recent interim report. But the panel proposed to circumscribe this power by inserting in the Constitution a general rule against discrimination on the basis of race, colour, religion or national origin. This proposal has garnered little support from conservatives and is unlikely to be endorsed, as Noel Pearson has recently conceded.

In short, there is little evidence to date that the emerging referendum wording will evince a “surreptitious intention … that positive discrimination and redistribution policies are to be given permanent constitutional foundation” as Mr Kasper asserts.

Lastly, his fears that some form of recognition will be proposed for insertion into the preamble to the Constitution is also misplaced for the simple reason that there is currently no preamble to the Australian Constitution. (This has been overlooked by numerous commentators, including several prime ministers, in recent statements on the topic.) Indeed, both the Expert Panel and the Joint Committee rejected this idea on the basis that crafting a totally new preamble, incorporating necessarily much more than indigenous recognition, was neither desirable nor capable of winning widespread support.

Graham Bradley
(member of 2011 Expert Panel)
via e-mail

Fossil Fuels, Here to Stay

SIR: I refer to Stephen Kates’s review of David Archibald’s book Twilight of Abundance: Why Life in the 21st Century will be Nasty, Brutish and Short (September 2014). It is fanciful to suggest that one of the reasons why it will be “nasty, brutish and short” is because of, as Kates puts it, “the potential for the planet to run out of cheap sources of energy in the next half-century or so”.

I acknowledge that the price of oil won’t stay as low as it is at the moment and other forms of energy may become cheaper as time goes by, but it is fanciful to believe that we will run out of oil—or other fossil fuels—in the next half-century. It was fanciful when Kates wrote his review and when Archibald wrote his book.

An article in the May 2013 edition of the Atlantic Monthly, the title of which was “What If We Never Run Out of Oil?”, points out that, far from reaching the limits of oil reserves, we are continuing to discover more thanks to the fracking revolution which, by the way, is also discovering huge amounts of gas. Kates acknowledges this when he says, “Is this true? We seem to be finding new energy sources at every turn and new techniques for extracting known deposits from existing sources. Yet our resources may prove to be finite after all.” Yet Kates seems to suspend reason—perhaps because this “happens to be Archibald’s area of expertise”—when he goes on to quote Archibald, who claims that peak production of oil was achieved in 2005.

Is this true? According to the Index Mundi website, basing its information on the US Energy Information Administration, world crude oil production in 2005 was 72,176,090 barrels of oil per day. According to the International Energy Agency website, world crude oil production in September 2014 was 93,800,000 barrels per day.

There may be any number of reasons why production of oil may drop, even substantially, in the next half-century, but not because the world is running out of oil and other fossil fuels.

Christopher Rule
Gilmore, ACT

Failed Interventions

SIR: Professor Michael Evans (January-February 2015) has given us a fascinating and discouraging insight into the world of counter­insurgency. I only wish he could have developed his theme further.

The failure of counterinsurgency programs from Vietnam to Afghanistan owes more to Western arrogance than to the failures of implementation of the various campaigns. In part, Evans blames a lack of strategy. Worse, there have been failures to define an objective in any of the campaigns, with the result that the objective and therefore the strategy become very plastic, subject to political whims or military fashions. For me, the failure arises from a presumption that we in the West know better and can do better because we are wealthier and smarter. The problem is that those we believe we are helping don’t agree. Moreover, many Westerners don’t agree either, so Western leaders cannot achieve the persistent domestic political support that effective counterinsurgency demands.

In respect of insurgency in the Muslim world, the West’s failure owes much to its refusal to factor the question of religion into the debate. Whether the West is seen by the insurgents as Christian or, more likely, irreligious, we in the West are infidels and thus by definition the enemy. We cannot win that battle despite the blood and treasure wasted in trying to prove that we can.

Those committed to intervention argue that the threat of Islamist insurgencies from Nigeria to Pakistan is, for the West, an existential threat. It may well be for the polities of those countries; for the United States, Australia, the UK and others in the West, any threat that does exist is essentially a minor challenge to domestic law enforcement.

Michael O’Connor
Home Hill, Qld

SC or QC, or Nothing?

SIR: We are still reading of controversy surrounding QCs and SCs. Some say it should be one or the other. Some say they should no longer be appointed at all. I fall into the latter category. In whichever style or title, the notion has long outlived its usefulness.

In an age where legal costs are an increasingly serious issue, we keep appointing people to a rank that leads only to increased litigation costs. As to access to justice, and as to the costs of justice itself, they are grosse impedimenta. Generally they charge a lot of money for what they do. Per day, they charge considerably more than several working persons could ever hope to charge in a week. Worse, though, the rank has been diluted greatly over recent years and it is doubtful if all of those appointed QC or SC these days would have made it even as late as twenty years ago.

Chief Justice Warren of Victoria would not be of this view, of course. She is the sole appointing authority in Victoria—she determines who is in and who is out—in contrast to New South Wales and Queensland. She has said she undertakes in that role “a wide and demanding consultative process”. But in 2014 it was the state Attorney General Robert Clark, and not the Chief Justice, who turned SCs into QCs in Victoria (without much of a consultative process in evidence) if they wanted it—and most did, strangely. That consultative process she undertakes must surely take up much valuable time, at public cost, which could be better spent on other things.

Be that as it may, in her words of welcome, in a court of not three but five judges, the Chief Justice in December 2014 obligingly emphasised to the new Silks their privileged rank—as they each took a quaint Dickensian bow. She reminded them of the important role of pro bono work—and who will deny that? But at the same time she urged them to recall they are now Senior Counsel—leaders of the Bar—who generally should not be appearing in court without a Junior.

Therein lies the rub, and it must not have been obvious to the Chief Justice that she was being inconsistent. The need for pro bono work has arisen because people cannot afford lawyers any more, one reason being some stupid traditions of the legal profession which have priced lawyers out of the reach of ordinary people. Prime example: Senior Counsel should not appear in court if unaccompanied by a Junior. This is completely indefensible and it is one of the reasons ultimately why a need for pro bono work has arisen.

This can’t have been obvious to the Chief Justice, but it shows the matter was not thought through.

The time for having any arrangements in place to appoint Senior Counsel has long gone by. The legal profession needs to move into the twenty-first century or be bypassed by accountants and others who in various areas can do just as good a job. There is no need for accountants to do pro bono work, and there is no need to employ both a Senior and Junior accountant for any purpose. Nor is there any rule that a Senior Surgeon should not operate without a Junior Surgeon.

It was the irascible Hayden Starke, and not Lionel Murphy, who was on the right track nearly 100 years ago when he showed leadership by never becoming QC.

Damien Cremean
via e-mail

Lawrence and Fascism

SIR: Robert Darroch, President of the D.H. Lawrence Society of Australia, claims (January-February 2015) that in the novel Kangaroo Lawrence had discovered and was exposing Australian fascism. In fact the “fascist secret army” consisted of patriotic men, often ex-servicemen, quite understandably alarmed by communism. When, in its best-known action, New Guard member Francis de Groot upstaged Premier Jack Lang at the opening of Sydney Harbour Bridge, it was said that he was furious Lang had upstaged his friend, the Jewish Governor-General Sir Isaac Isaacs.

If Lawrence was exposing fascism, he himself was associated with something a good deal worse. He was in important ways a proto-Nazi, and at the worst, gas-chamber, end of Nazism at that. Lawrence, who like the Nazis believed in mystical “blood” and “soil” (blut und boden) like them believed in the mass extermination of the unfit:

If I had my way, I would build a lethal chamber as big as the Crystal Palace, with a military band playing softly, and a Cinematograph working brightly; then I’d go out in the back streets and main streets and bring them in, all the sick, the halt, and the maimed; I would lead them gently, and they would smile me a weary thanks; and the band would softly bubble out the “Hallelujah Chorus”.

There are many anti-Semitic references in Lawrence’s writing, and it was probably mere oversight that Jews were not included in that passage. Lawrence wrote in 1913:

My great religion is a belief in the blood, the flesh, as being wiser than the intellect. We can go wrong in our minds. But what our blood feels and believes and says, is always true. The intellect is only a bit and bridle. What do I care about knowledge. All I want is to answer to my blood, direct, without fribbling interventions of mind, or moral, or what not.

Hitler would have approved, as he would doubtless have approved Lawrence’s opinion of the bourgeoisie who would eventually fight fascism, flying Spitfires and sailing to Dunkirk. When a London publisher turned down Sons and Lovers on the ground that its “want of reticence” would render it unacceptable to the public, Lawrence responded with a wholesale denunciation of the English people:

Curse the blasted, jelly-boned swines, the slimy, the belly-wriggling invertebrates, the miserable sodding rotters, the flaming sods, the snivelling, dribbling, dithering palsied pulse-less lot that make up England today … God blast them, wishwash. Exterminate them, slime.

Hal G.P. Colebatch
Nedlands, WA

Contrarians

SIR: Nicholas Hasluck (January-February 2015) asserts that “contrarians … are mostly well-known … for the predictability of their opinions—whether they conform to the fashion of the day”. I beg to differ.

The American philosopher Marilynne Robinson defines contrarian thinking as follows: “The prevailing view of things can be assumed to be wrong, and … its opposite, being its image or shadow, can also be assumed to be wrong … There are other ways of thinking, for which better arguments can be made.” In other words, it’s not about disagreeing with a prevailing mindset. A contrarian is willing to think about complex topics, often from the inside out, seeking to answer a different set of questions that most are unwilling to consider. That implies a real independence of outlook, and a complete lack of predictability.

Ludwig von Mises made an important distinction: “The masses, the hosts of common men, do not conceive any ideas, sound or unsound. They only choose between the ideologies developed by the intellectual leaders of mankind. But their choice is final and determines the course of events. If they prefer bad doctrines nothing can prevent disaster.” He was undoubtedly a contrarian.

Peter McCloy
Wollombi, NSW

A Coincident Balloon

SIR: I have in common with my namesake columnist several other attributes, such as nonagenarian status, a love of the language, Second World War service, a regular magazine contribution and even publication in Quadrant, but credulity of coincidence was stretched to the limit with his description in the November issue of a near collision with a hot-air balloon. A similar monster nearly clipped my house on its way to a nearby park; but an unscheduled and involuntary descent to earth came not from a balloon, as in his case, but from a parachute which miraculously avoided the numerous trees on our property to land safe and sound. The parachutist simply gathered his canopy and strode away in silence.

I can but quote my namesake’s comments: “Well, what’s so remarkable about all that? No one was killed, were they? Nobody injured? No significant damage? And don’t I say that one of the main reasons I regard my whole life as a blessed one is that it’s seldom been dull for long?” That is another thing we hold in common.

L. Peter Ryan
Clayfield, Qld