A Reply to Brian Galligan
This article was originally written as a reply to a critique of my work by Brian Galligan, published on 22 December 2016 on Inside Story, a current affairs website published by the Institute for Social Research at Swinburne University of Technology, Melbourne. I submitted my article on 31 January, expecting it to be treated on roughly equal terms with the original, that is, to be published as an article in its own right, and in full. In the past, when I have been faced with similar critiques of my other books, several academic journals have given me the right of reply. However, this time, the editor of Inside Story, Peter Browne, refused to follow this practice. Instead, he told me he would only publish my response in the “comments” option at the end of Galligan’s article, and I had to cut my article by more than 75 per cent. The invitation was clearly intended to be unacceptable, so I declined, holding my nose against the stench of yet another decomposing body in the graveyard of Australian academic integrity.
One of the aims of my recent book, The Break-up of Australia: The Real Agenda Behind Aboriginal Recognition, is to disprove the claims made by academic lawyers that at Federation in 1901 the Constitution discriminated against Aboriginal people by denying them the vote. Megan Davis of the law school at the University of New South Wales, for instance, claims the reference to “the people” in the Constitution’s preamble “is remarkable more for those it cast outside of the polity than for those it included”. She argues: “in determining whether to fuse the separate colonies into a unified federation, women, Indigenous people, Chinese and Kanak labourers were all denied the right to vote and thus excluded from the collective ‘people’ ”.
Davis’s faculty colleague and co-author of their book Everything You Need to Know About the Referendum to Recognise Indigenous Australian, George Williams, has said much the same thing:
The founders of the Australian nation saw no place for Aboriginal and Torres Strait Islander peoples. Instead, these peoples were cast as outsiders in their own land, a ‘dying race’ not expected to survive British settlement. The Australian Constitution that came into force in 1901 incorporated these sentiments … Australia’s constitutional structure was soon reflected in the nation’s laws. One of the first acts of the new parliament was to exclude Aboriginal peoples from the franchise.
Megan Davis was a member of the “expert panel” appointed by Julia Gillard in 2011 to investigate the prospects of a referendum on indigenous recognition and is currently a member of Malcolm Turnbull’s Referendum Council. Her views and those of George Williams strongly influenced the expert panel’s report, which cites an article by Williams claiming Aborigines were not permitted to vote for delegates to the constitutional conventions of the 1890s or in the colonial plebiscites of 1899 and 1900 that finally approved the Constitution. The sole exception to this, the panel says, was in South Australia where Aborigines got the vote in 1895.
My case in The Break-up of Australia is that both the panel’s report and the historical and legal authors it relies upon are untrustworthy. I provide a range of evidence including colonial laws, electoral rolls, electoral administration, voting day photographs, contemporary newspaper reports, and observations made by political leaders in colonial parliamentary debates in the 1890s and 1900s and in the Commonwealth Parliament in 1902 that show Aborigines not only had the vote before and after 1901 but also exercised it in New South Wales, Victoria, South Australia and Tasmania. Thanks to Section 41 of the Constitution, all these colonial electors were guaranteed the same right in the new Commonwealth. Only in Queensland and Western Australia were Aboriginal people disenfranchised, both before and after Federation. Rather than being “cast as outsiders in their own land”, most Aboriginal people were treated by colonial governments, by the Australian Constitution that created the Commonwealth, and by the Commonwealth government itself in its Commonwealth Franchise Act of 1902 as citizens with the same political rights as everyone else.
In a critique of my book for the online journal. Inside Story, 22 December 2016, Brian Galligan, a former Professor of Politics at the University of Melbourne, says my analyses of the Commonwealth Franchise Act of 1902 and of Section 41 of the Constitution are largely accurate. “The Franchise Act didn’t ban ‘aboriginal natives’ who had state voting rights”, he acknowledges, “indeed, these people were protected by section 41 of the Constitution”
However, Galligan argues that these were rights in principle only. In practice, they turned out to be something quite different, thereby undermining my case. “Windschuttle is quite wrong,” he says, “because many Aboriginal people were excluded from voting by much state and territory legislation, administration and practice.” He dismisses my case for being “selective and partial in key aspects”.
Moreover, Galligan claims my faith in Section 41 as a cast-iron guarantee of Aboriginal voting rights in the new Commonwealth is misplaced. I argue that Section 41 guaranteed all Aboriginal people who were on the colonial electoral rolls before Federation, and all those who became eligible on the same terms after 1901 — that is, all adult male Aborigines in New South Wales, Victoria, South Australia and Tasmania — retained the franchise in Federal elections after 1901. Galligan disputes this, claiming that Section 41 only applied to those enrolled before 1901 and was never used to give the vote to new enrolees after the Commonwealth Franchise Act became law in 1902. This is the same argument on which today’s legal academics stake their claim that one of the first acts of the new Commonwealth parliament was to exclude Aboriginal peoples from the franchise.
The Aboriginal vote before Federation
Although he talks about “much” state and territory legislation excluding Aboriginal people from voting, Galligan provides only one example of this before Federation in the four states where Aborigines had the same rights as white people. He says this was the New South Wales Parliamentary Electorates and Elections Act 1893 which purportedly disfranchised all those in receipt of charitable aid. This category, he claims, embraced “all those receiving government assistance and rations”, which included all or most of the Aboriginal people in the colony. Galligan is repeating a claim that he and co-author John Chesterman made in 1997 in their book Citizens Without Rights. The principal historical source Galligan relies upon is the report of a select committee of the House of Representatives on Aboriginal voting in 1961.
However, it is not difficult to show that Chesterman, Galligan and the 1961 House of Representatives report are all quite mistaken about both the 1893 colonial Act and about Aboriginal dependence on charity. I discuss this point at some length in my book because it was raised in debate in both the Commonwealth House of Representatives and the Senate when the Barton government introduced its Commonwealth Franchise Bill in 1902. Sir William Lyne, the government’s Minister for Home Affairs, said Aborigines in New South Wales already had the right to vote before Federation. This meant that, under Section 41 of the Constitution, the Commonwealth could not deny them that right:
We could not prevent the Aboriginals of New South Wales from voting, inasmuch as they can vote now. Many of them exercise the right in the Murray district. I believe many of them voted for the Chairman of Committees [John Moore Chanter, member for Riverina, New South Wales]
To an interjection claiming Aborigines could not vote “if they received relief from the Government”, Lyne responded:
But they do vote in New South Wales. I have seen them voting. I do not know whether some of the aboriginals may be disqualified, but, at any rate, those who now have the right cannot, under the Constitution, have that right taken away from them.
Almost immediately after Lyne spoke, the Labor leader in the federal parliament, Chris Watson, also disproved the interjector when he complained about vote rigging he thought occurred on some colonial government Aboriginal stations. Watson said: “I know that in one or two cases in New South Wales the blacks at the Government stations were manipulated by a candidate to his advantage in a very clever way indeed.”
What Watson meant here by “Government stations” were a series of small settlements of from 50 to 200 people where governments provided housing and schools for Aboriginal families. Some 20 Aboriginal stations were established in New South Wales by the Aborigines Protection Board from 1882 to 1901, several of them run by Christian missionaries. According to the Aborigines Protection Board, in the early twentieth century about 20 per cent of New South Wales Aborigines were receiving some kind of aid. But none of its settlements for Aboriginal people were regarded by the colonial government as charitable institutions and their inhabitants were not defined as in receipt of “charitable aid”.
This last point was made clear in the Senate debate over the 1902 Commonwealth Franchise Bill by Senator Richard O’Connor, who introduced it to the upper house on behalf of the Barton government. O’Connor knew what he was talking about. In 1893 he had been the New South Wales Minister for Justice and the colony’s Solicitor-General. He was the man who piloted the Parliamentary Electorates and Elections Act 1893 through the colonial parliament. In the Senate debate in 1902, after a claim by Senator Matheson of Western Australia that the Aborigines of New South Wales would be disenfranchised by the Commonwealth because they received “charitable aid”, O’Connor replied:
The honorable senator is utterly mistaken. Certainly in New South Wales and Victoria, and I believe in many places in South Australia, there were numbers of these men at work earning their living just as other persons earn their living, by labour. In several places also they were collected by Governments and benevolent institutions into what were called missions, not for the purpose of administering any eleemosynary aid to them, but for the formation of little settlements in which they could be educated, and in which they paid over and over again for any expense entailed in their education by providing produce which was sold by the institution in charge of the mission. There were scores of men in these institutions who, by reason of their intelligence and education, were quite as fit to exercise their right to vote as many white men. It is altogether a mistake to suppose that the aboriginal of Australia is to be classed in every state as being a person supplied by the Government with a blanket. No doubt a great number in all the states are aided by the Government, but many of them are earning their living as ordinary members of the community. The rights of those people are preserved for them under the Constitution. The right of every aboriginal native of New South Wales is to be put upon an electoral roll, and to be able to record a vote, and nothing can take that right away from him.
There is also plenty of evidence that most of the state’s Aboriginal population at this time were economically independent and made their living through a combination of seasonal agricultural and pastoral employment and hunting and fishing. The census published in the annual reports of the Aborigines Protection Board recorded this and regularly estimated what proportion of the population was in receipt of aid. Only in the economic depression of the early 1890s, the short recession of 1920-1, and the Great Depression of the early 1930s did the proportion of the New South Wales Aboriginal population dependent on welfare rise above 25 per cent. It peaked at 35 per cent in the Great Depression.
Moreover, both sides of politics in New South Wales vied with one another to attract the support of Aborigines and other itinerant workers, whose votes were crucial in the seventeen rural seats Labor won in the 1891 election. Labor Electoral Leagues engaged in a vigorous public contest for the votes of Aborigines and other itinerant workers. In response, business and pastoral interests formed the National Association in 1892 to combat the labour movement. At some locations, the National Association told Aborigines they should support their employers rather than union organisers; at others, they tried to challenge the names of itinerant workers, including Aboriginal stockmen, on electoral rolls.
Even though my book gives full references for all the above developments, Galligan’s critique of my work ignores them. Given that the New South Wales Parliamentary Electorates and Elections Act 1893 is the sole piece of hard evidence he offers to challenge my case that before 1901, the majority of colonies gave the vote to Aboriginal adult males on the same terms as white men, Galligan’s argument is clearly just as “utterly mistaken” as that of the senator who Richard O’Connor took to task.
The Aboriginal electors of Woodenbong, Cumeroogunga, Lithgow and Burragorang
In his account of the Aboriginal right to vote in Commonwealth elections after 1901, Galligan fares no better. He again relies heavily on the report by a House of Representatives Select Committee on Voting Rights for Aborigines in 1961. This was written a long time after Federation but Galligan is confident its findings about the poor Aboriginal voting record in some electorates constitute sufficient evidence to show that Aboriginal people had been denied the franchise throughout Australia since 1901. Unfortunately for Galligan, the 1961 report does not support such a conclusion.
The select committee’s concern was primarily with the situation in Queensland, Western Australia, the Northern Territory and the Torres Strait Islands where many Aboriginal people who were entitled to vote in Commonwealth elections remained unaware of that right. Many had been disenfranchised at state elections by the Queensland and Western Australian governments since 1901, but they did not know that all those who were of not of full Aboriginal descent could still vote in federal elections. The committee’s report said there were thousands of people in Queensland and Western Australia who “have the right to be enrolled and to vote at Commonwealth elections but are unaware of the fact”.
However, in the other states, the committee struggled to find evidence of widespread disenfranchisement. The sole example that Galligan provides of Woodenbong (not “Woodenborg”), a tiny settlement deep in the Border Ranges of northern New South Wales where only five out of fifty were enrolled to vote, was the only example the committee provided in that state too. The full text of what the committee said about Aboriginal voting in New South Wales describes a problem due more to Aboriginal lack of awareness of rights rather than active disenfranchisement by the state:
In the state of New South Wales where the Aboriginal people have for many years been fully entitled to become enrolled and vote at state elections and, ipso facto, Commonwealth elections, your committee came upon many instances where the entitlement was not being exercised. For instance, at Woodenbong Aboriginal station, only five of 50 had enrolled and once again your committee was informed that the people were unaware of their entitlement.
To properly discuss the voting record of the numerous small Aboriginal settlements throughout New South Wales, Galligan needed a much better source. Ideally, he should have consulted colonial and Commonwealth electoral rolls to see if they contained the names of some of the better-known Aboriginal extended families. That is what I did in Tasmania, where I found the names of well-known Bass Strait islander families well represented on electoral rolls. They were registered voters not only on the islands but also in electoral divisions and towns across the north of the Tasmanian mainland from 1889 to 1913.
Other local history researchers have found the same in New South Wales, especially in the post-Federation period. For instance, anthropologist Jim Smith found at Cumeroogunga Aboriginal Station on the Murray River, a total of 98 Aboriginal people (50 men and 48 women) were listed on the Commonwealth electoral rolls in 1903 for the Division of Riverina (Moama polling place), while 39 men and 42 women were enrolled there in 1906. From then until 1949, the station’s Aboriginal voters ranged between 60 and 80 people.
The position of Aboriginal women is the most revealing in this example. Women in New South Wales did not have the vote in pre-Federation times, so those whose names appear on the electoral rolls after Federation could not be there because of any pre-Federation enrolment. Aboriginal women only became eligible to vote when the state government granted that right in 1902 and the Commonwealth followed suit. If the Commonwealth Franchise Act of 1902 really operated as today’s academic fraternity claim and cast them out of the polity, there should be no Aboriginal women on the Commonwealth electoral rolls until at least 1962.
Yet the Cumeroogunga example of women on Commonwealth rolls was emulated right across the state. Electoral rolls for the first eighty years after Federation can now be searched online at ancestry.com. You can search by individual names, family surnames, sex, location and/or year. If you search for women enrollees with common Aboriginal surnames you find numerous examples that disprove Galligan’s case. For instance, a search of the common Aboriginal surname Goolagong finds 40 women with that name on Commonwealth electoral rolls from 1913 to 1943, most commonly in Cowra and Condobolin. A similar search for the surname Boney shows 28 women with that name on the rolls between 1913 and 1943, most commonly in Bendemeer and Brewarrina.
For this article, I checked the New South Wales electoral rolls to see if they confirmed claims by Professor Larissa Behrendt of the University of Technology Sydney that Aborigines first received a limited right to vote only in 1949 and did not get the full franchise until 1962. However, I found the name of her own Aboriginal grandmother, Lavena Behrendt, recorded on the electoral roll in 1936 for the Commonwealth division of Macquarie, state division of Hartley, subdivision of Lithgow. Lavena was born in 1903 so her right to vote in the 1930s could not have been bestowed by any pre-1901 colonial enrolment. It came courtesy of the Commonwealth Franchise Act 1902.
Jim Smith has made the most thorough study of this kind in his history of the Gundungurra people of the Blue Mountains. He published it in his recent book, The Aboriginal People of the Burragorang Valley, and in an article in the Journal of the Royal Australian Historical Society in December 2012. The Burragorang Valley housed a small but long-surviving Aboriginal farming community, about the same size as Woodenbong, from the mid-nineteenth century until the valley was flooded in the late 1950s by the Warragamba Dam. Smith uses electoral rolls and regional genealogical records to track the members of the community’s principal families. He challenges all those historians, including Chesterman and Galligan, who have “assumed … that aboriginal people were too illiterate to enroll, were not interested in voting, alienated from non-Aboriginal democratic processes or were prevented from enrolling by legislation or racist officials”.
Smith found that in the Burragorang Valley, some 61 Aboriginal people enrolled to vote for colonial, state and Commonwealth elections between 1869 and 1953. The number peaked in 1903 when 24 Aboriginal people, including women, were enrolled.
Smith disproves the claim that only Aborigines enrolled in their colonial electorates before Federation could vote in Commonwealth elections after 1901. Smith finds five new Aboriginal enrollees, who had not been on state rolls before Federation, were recorded on Burragorang’s first Commonwealth roll in 1903. The enfranchisement of women in both state and Commonwealth elections in 1902 also boosted their numbers. Seven new Aboriginal women were put on the state electoral roll in 1902-3 and another five Aboriginal women on the Commonwealth roll after 1903. This pattern continued for the rest of the life of the settlement.
Smith’s study also disproves Galligan’s assertion that Aborigines were disqualified from voting because they all received charitable aid. The number of adult Aborigines given rations in the Burragorang Valley was always very small, averaging only four between 1883 and 1888, eight between 1889 and 1892, and four between 1905 and 1913.
And rather than being alienated from the non-Aboriginal democratic processes, Smith finds the Burragorang families were active participants in community affairs across the whole century of their residence. He writes:
They signed petitions for the establishment of schools and post offices, applied for grants, conditional purchases and leases of land. They joined local sporting teams, attended church services and community social events, sometimes providing the music. The desire of Aboriginal people to vote was part of a suite of aspirations for equality with the non-Aboriginal community. They wanted to be able to raise their own children, send them to local schools, and have equal access to housing, health facilities and other social services.
In short, the Burragorang Valley Aborigines were not “citizens without rights”, as Galligan and Chesterman characterize them. They were practicing electors in Australia’s democratic political system and active participants in their local civil society.
Airbrushing the Aboriginal electorate of Victoria
Despite Galligan’s reliance on the 1961 House of Representatives select committee’s report, his article evades evidence in the same report that poses serious problems for his claims. The following case of selective omission of inconvenient evidence could not have occurred because Galligan did not see it. The evidence appears in the committee’s report immediately after the discussion he cites about voting in Woodenbong, which was in Paragraph 38 on page 4 of the report.
The very next paragraph on the same page punches an even larger hole in Galligan’s case than its predecessor. Paragraph 39 of the select committee’s report describes the post-Federation situation in Victoria. It says:
In the State of Victoria, the Aboriginal people have been entitled to enrolment since the formation of the Commonwealth and your committee was informed that a very high percentage have enrolled and are exercising the franchise.
In other words, Galligan wants to count the little hamlet of Woodenbong, with its five out of 50 voters in 1961, as evidence for his case, but he airbrushes from the record the same report’s summary of the entire 60-year electoral history of the state of Victoria where Aboriginal electors had the opposite experience. And he has the presumption to call my case “selective and partial”.
The disqualification of ‘wards’ in the Northern Territory
Galligan observes that I argue Aboriginal people had the right to vote in the Northern Territory since colonial times when the territory was governed by South Australia. In 1895, South Australia passed legislation specifically stating that Aboriginal people could vote for parliament. From 1863 to 1911, the Northern Territory was governed by South Australia so this right to vote, which included Aboriginal women, was extended to all adult Aborigines there as well.
Once again, drawing his evidence from 1961 rather than anything closer to Federation, Galligan quotes the select committee of the House of Representatives claiming that, during its field visits to the Northern Territory that year, it found virtually all Aboriginal people were excluded from voting.
This was done, Galligan explains, by electoral regulations that disqualified “wards” from voting. “Of some 17,000 Aborigines in the Northern Territory,” the committee reported, “only eighty-nine have not been declared wards or have been removed from the Register of Wards.” In other words, Galligan says, no less than 99.48 per cent of Aboriginal people in the Northern Territory were excluded.
This might have been true in 1961 but Galligan avoids saying how long the policy of wardship was in operation. In fact, it only came into existence in 1953 through the Northern Territory Welfare Ordinance of that year, and it only lasted for the next eleven years. it was replaced by the Social Welfare Ordinance 1964 which abandoned the Register of Wards and gave Aboriginal people the same political rights and welfare entitlements as other members of the community.
Moreover, the 1895 legislation permitting Aboriginal voting in South Australia had persisted in the Northern Territory for more than 50 years after Federation. After it took over the Northern Territory in 1911, the Commonwealth’s first Aboriginal Ordinance of 1911 provided that all existing South Australian laws remained in force until altered by a Commonwealth law. Prior to the takeover, the South Australian government enacted the Northern Territory Aboriginals Act 1910 but it did nothing to change the 1895 right to vote; it did not mention the subject. Similarly, there was no mention of any restriction of the existing Aboriginal right to vote in the Commonwealth’s first Aboriginal Ordinance of 1911, nor in those that followed in 1918, 1923, 1924, 1925, 1927, 1928, 1930, 1933, 1936, 1937, 1939 or the 1940s. Hence the first time that Northern Territory Aborigines were denied the vote was in 1953. Until then, the absence of any repeal of voting rights meant that the original South Australian Act remained Territory law.
In pointing this out, I do not want to argue that before 1953 the Aborigines of the Northern Territory were all aware they had the right to vote, or that large numbers of them actually wanted to vote. Until the Second World War, the majority of Territory Aborigines lived in remote regions, with only periodic contact with white society. In the investigations it made for its report, the 1961 select committee visited several remote communities in the Territory where it found little awareness of elector’s rights. Moreover, the Commonwealth government at the time did not set up polling booths in all the Territory’s remote communities on election day or provide postal voting facilities, as happens now. The select committee recommended reforms to solve these drawbacks. However, the electoral scenario described by the committee’s report was a very different one to that offered by Galligan and today’s academic lawyers who portray a racist Commonwealth intentionally denying the vote to Territory Aborigines for the first six decades after Federation.
The intentions of the Constitution’s authors
In The Break-up of Australia I show that the original three authors of the Constitution, Inglis Clark, Charles Kingston and Samuel Griffith, were all on the progressive side of politics and embedded provisions, especially in Section 25, designed to penalise those states, Queensland and Western Australia, that did not allow full voting rights to all their Aboriginal people by making a proportional reduction in the number of members they could send to the Commonwealth parliament. Brian Galligan does not touch upon my discussion of Section 25 nor of my other arguments about Sections 51(xxvi) or Section 127. Instead, he focuses on my views about Section 41 and the politicians who defended it in parliament in 1902 in the debates over the Commonwealth Franchise Bill.
Section 41 says:
No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Common-wealth from voting at elections for either House of the Parliament of the Commonwealth.
Today, the Commonwealth Franchise Act 1902 is commonly but mistakenly quoted by academics as denying the vote to the “aboriginal natives of Australia”. Galligan is one of the chief offenders on this score. He acknowledges that the intention of the Barton government’s leader in the Senate, Richard O’Connor, was to make the original Commonwealth Franchise Bill “the broadest possible one” with “no class of the community left out” thereby giving the new Commonwealth the “most representative parliament, according to the truest principles of democracy, which exists in the world.” However, Galligan claims O’Connor was eventually forced to abandon this goal. Subsequent amendments to the Bill in the House of Representatives meant O’Connor became silent about his original ambitions, Galligan says, “when the Senate passed the amended Franchise Act, which excluded Aboriginal people, in late May”.
Now, it is quite misleading to baldly state that the amended Franchise Act “excluded Aboriginal people”. Thanks to Section 41 of the Constitution, all the Aboriginal people of New South Wales, Victoria, South Australia and Tasmania who already had the right to vote for their colonial governments retained that right in Commonwealth government elections at Federation. Only in Queensland and Western Australia, where there was a £100 property qualification that few Aboriginal people could meet, was there significant Aboriginal disenfranchisement. In the House of Representatives debate on the Franchise Bill in April 1902, even those opposed to extending the vote to Aboriginal people recognised the constitutional implications of Section 41 that existing electoral laws guaranteed the vote to Aborigines in four of the six states. They agreed there was nothing they could do about it. This was a point conceded in debate by opponents of the Bill, including Labor leader Chris Watson and Labor supporters Henry Bournes Higgins and Isaac Isaacs. In the debate in the upper House another opponent, the Western Australian Senator Alexander Matheson, also quoted Section 41, acknowledging its force.
Instead of denying the vote to Aboriginal people, the full text of the Commonwealth Franchise Act’s disqualification clause modifies its scope in a significant way. It says:
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 an Electoral Roll unless so entitled under section forty-one of the Constitution. [emphasis added]
Hence the Act clearly recognises the power of Section 41 and does not attempt to subvert or evade it. So any Aboriginal adult enrolled to vote in either a colonial or state parliament was exempt from the Franchise Act’s disqualification provision. However, while some critics today do acknowledge the existence of Section 41, they say it only applied to those Aborigines who enrolled in their colonies before 1901, and that all those Aborigines who came of age after that date were disenfranchised until 1962. Galligan repeats this assertion:
Section 41 applied only to people on state rolls at the time of the first Franchise Act 1902. This was the accepted view of section 41 all along, as evidence by its original drafting in the 1890s Federal Conventions and subsequent official interpretation.
However, it is not hard to show that his view is clearly at odds with that of the authors of the Constitution and with its interpretation by the Parliament in 1902.
In the debate over the Commonwealth Franchise Bill, the two most detailed explications of its meaning were given by Senator Sir John Downer and Senator Richard O’Connor. Downer spelled out the obligations the new parliament had inherited from the Constitution:
We have a Constitution, and we are going to work under it. That Constitution provides that—
No adult person who has, or acquires, a right to vote at elections for the more numerous House of the parliament of a State shall, while that right continues—
‘Who has, or acquires, a right.’ There is present and future.
—be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.
The intention there is put in the clearest possible words. The laws, as they exist now in the States, defining the right to vote shall continue, though in each State they may be divergent, and laws in future passed by each State deciding who shall vote shall also prevail, notwithstanding any law we may pass to the contrary. So that any laws we pass now upon this matter will be subject to the existing or future law of any State.
Galligan notes this passage from my book but tries to paint Downer as a man at odds with majority opinion. His was “an exception to the general view” that Section 41 only applied to people on state electoral rolls before 1901 which, Galligan claims, “was the accepted view of Section 41 all along”. However, rather than being a constitutional outsider, Downer was closely involved in the process. Galligan seems unaware that Downer was a member, along with Edmund Barton and Richard O’Connor, of the three-man Drafting Committee for the Australian Constitution Bill, which was responsible for rewriting the original draft in the light of amendments made during the convention sessions in 1897 and 1898. For a time, he was one of the authors of the Constitution.
Now, Downer’s view did differ from that of his two colleagues on the committee. But this difference was not about the eligibility of individual electors before or after 1901, but about whether laws of the Commonwealth could be subject to any future laws of a state. Neither Richard O’Connor nor Edmund Barton wanted Commonwealth electoral laws, once enacted, to be subject to any future changes made by state governments. For them, existing state laws bestowed eligibility on people to vote in Commonwealth elections, but once the Commonwealth had passed its own laws, future state laws had to be compatible with the Commonwealth to bestow the same right.
When first introduced to the parliament, the Commonwealth Franchise Bill gave the right to vote to all native-born and naturalised adults, irrespective of sex, race or ethnicity. In April 1902, Richard O’Connor engaged in a long debate on the floor of the Senate with Alexander Matheson from Western Australia. Matheson had proposed an amendment to deny the vote to all “Aboriginal natives of Australia … or persons of the half blood” except those “so entitled under Section 41 of the Constitution”. In appealing for the amendment to be rejected, O’Connor made it just as clear as Downer that the Commonwealth Franchise Bill applied to those Aborigines who were enrolled in their colonies before Federation, and to all those Aborigines who came of age in the same colonies and enrolled after that date. O’Connor said:
Every Aboriginal in New South Wales, in Tasmania if there are any, in Victoria and in South Australia has the right to vote just as any other inhabitant has, and we cannot take that right away from him. Senator Matheson admits that by his amendment. In the same way, every aboriginal in Western Australia and in Queensland who possesses £100 worth of property has the right to vote, and for his sake we should be obliged to maintain that property qualification. But what does Senator Matheson propose to do now? He proposes to go back on all that legislation, and to say that although in Western Australia and Queensland he had a right to vote if he had property, his son shall not have that right … I say that if this amendment is carried it will bring out this condition of things that, in all the States to which I have alluded, we shall have a class of aboriginals who will be entitled to be put on the roll, and entitled to vote under the existing laws, and those very men will have to tell their sons who are becoming more civilized, and perhaps as civilized, and as worthy of the franchise as the white men among who they are living —“Although your people owned this territory for centuries before the white man came here, although you are his equal in intelligence, it has been prescribed by the Commonwealth that you shall not have the right to vote at all.” I say it would be a monstrous and a savage application of this principle of a white Australia.
At the time, O’Connor’s views prevailed and Matheson’s amendment was rejected by the Senate twelve votes to eight.
In making his case, O’Connor stated more precisely than Downer the status of state electoral laws in relation to those of the Commonwealth. Rather than Commonwealth law “being subject to the existing or future law of any state”, as Downer had said, O’Connor made it clear that the broader constitutional provision that once Commonwealth laws were passed they took precedence over any state laws on the same subject, would also apply in electoral laws. This was a principle already secured under Section 109 of the Constitution. To a question about the use of the words “has or acquires” in Section 41, O’Connor replied:
That means that until we legislate, the States have the power to pass any legislation upon the subject they like. They may have passed legislation, or they may pass legislation between the passing of the Constitution and the passing of this Bill, the electoral conditions throughout all the States, and any right acquired under such legislation is preserved under the Constitution.
Senator Charleston.— If New South Wales had carried an Adult Suffrage Bill, the rights acquired under it would be preserved.
Senator O’Connor.— Exactly, but once we pass a law dealing with elections and electoral rights, it can be altered by no State legislation afterwards. It must be clear to honourable senators that it would be ridiculous if the Constitution were to give us the power to make a uniform franchise, and that then the States should have the power to alter that franchise in any way whatever.
In other words, O’Connor’s position was that individuals who complied with the pre-1901 electoral laws of their state were eligible to vote after 1901, even if those individuals only reached adulthood after Federation. However, once Commonwealth laws were enacted, if a state passed future laws that were incompatible with them then the Commonwealth’s laws prevailed in defining eligibility for Federal elections.
The third member of the Drafting Committee for the Australian Constitution Bill, Edmund Barton, did not speak on Aboriginal voting rights in the 1902 debates. However, as Prime Minister, Barton endorsed the position of Sir William Lyne, his Minister for Home affairs, who had the task of introducing the Commonwealth Franchise Bill to the House of Representatives. Lyne said the Barton government’s intention, and that of the original Bill, was to give all Aboriginal adults, both men and women, the same rights to the franchise as everyone else. At one point in the debate, Lyne responded to a question from one of his Protectionist colleagues, Richard Crouch:
Mr Crouch (Corio).— I desire to point out that unless it is intended to alter clause 4, the effect of this clause will be to give every aboriginal in Australia a vote if he chooses to claim one.
Sir William Lyne.— That is intended.
In the event, when the Commonwealth Franchise Bill subsequently went to the House of Representatives the Labor Party and two of its Protectionist Party supporters, Henry Bournes Higgins and Isaac Isaacs, objected to overriding the existing laws of Queensland and Western Australia. They supported a less discriminatory amendment than that of Senator Matheson, omitting any reference to “persons of the half blood”. Their amendment permitted full adult suffrage in New South Wales, Victoria, South Australia and Tasmania but preserved the pre-Federation status quo in the other two states, Queensland and Western Australia, with their £100 property qualification for Aboriginal electors. Although it diluted the original intentions of the Barton government to “give every aboriginal in Australia a vote if he chooses to claim one”, the government in the lower house accepted this amendment. It did this at the time so as not to postpone a more important provision in the same Bill to introduce a universal franchise for adult women. The amended Bill subsequently passed both houses and became Commonwealth law. It meant that the right to vote for Aboriginal natives in Queensland and Western Australia was still restricted by an expensive property qualification, but in New South Wales, Victoria, South Australia and Tasmania, all adult Aboriginal men and women were now fully enfranchised.
Legal opinion on Section 41 after Federation
In The Break-up of Australia, my interpretation of these events was confirmed by the Annotated Constitution of the Australian Commonwealth, a work that, since its publication in 1901 by two other politicians closely engaged in the making of the Constitution, John Quick and Robert Garran, has probably been the single most influential text on constitutional interpretation in this country. When Galligan claims that “subsequent official interpretations” support his views, he avoids mentioning Quick and Garran. In their discussion of Section 41, they confirmed that, in those states where the Aboriginal right to vote had never been repealed — New South Wales, Victoria, South Australia and Tasmania — Aboriginal people who placed themselves on the state electoral rolls at any time before or after 1901 were always eligible to vote in federal elections. Quick and Garran’s commentary does canvass various other possible interpretations but in the end supports this conclusion. The authors argue that if an individual reaches adulthood and thereby becomes eligible to vote in his or her home state after 1901, that person has the right to vote for the Commonwealth too.
As I noted earlier, Galligan’s principal source of information about the administration of Aboriginal rights to vote is the 1961 House of Representatives select committee. As I recorded in the discussion above about Woodenbong, that report actually supports my own case when it says: “the state of New South Wales where the Aboriginal people have for many years been fully entitled to become enrolled and vote at state elections and, ipso facto, Commonwealth elections”. Moreover, the select committee’s report publishes the legal opinion it relied upon. It was written by Geoffrey Sawer, the constitutional lawyer and ANU academic. Many of Sawer’s interpretations of constitutional law and Aborigines are still cited today as authoritative. Sawer gave the 1961 committee a paragraph of commentary on Section 41 and the vexed question of whether those who enrolled to vote on state electoral rolls after 1901 had the same right as those who enrolled before then. Sawer endorses the “prospective” interpretation that they did. He also notes Section 41 cannot be used to prohibit the voting rights of anyone. The full text of the relevant paragraph in Sawer’s opinion is as follows:
S. 41. This was briefly referred to in Muramats v. Commonwealth Electoral Officer (W.A.) 32 C.L.R. 500, and see Nicholas, The Australian Constitution, 2d. ed. p. 75. The only point referred to by Nicholas and inferentially by Higgins J. as cited was whether s. 41 is prospective in operation, or applies only to those who were qualified at the date when the first Commonwealth Franchise Act came into operation. The prospective view seems clearly the correct one, though s. 39 (5) (a) and (aa) of the Commonwealth Electoral Act for caution covers both possibilities. But whatever the answer to this question, it is completely clear that s. 41 has the sole effect of guaranteeing the franchise to the persons described; it contains no prohibition on the grant of the franchise to any particular individual, and cannot be used as the basis for any negative inference of that sort.
The only significant and relevant legal opinion on Section 41 cited by Galligan is the decision of the High Court in 1983 in R v. Pearson. However, this was not a case about the rights of Aboriginal people to vote. It was about the rights of four young Labor Party members in New South Wales who had been enrolled to vote in that state but failed to put themselves on the Federal rolls when Malcolm Fraser called a surprise early election in February 1983. They lost their case when the High Court decided that Section 41 only protected rights that existed before the Commonwealth Franchise Act came into existence in June 1902. No new rights protectable by Section 41 could be acquired after that time.
Galligan claims this “was the accepted view of Section 41 all along”. This is stretching the truth. The High Court decision repeated a point well known to the Constitution’s authors, which, as I have shown above, was discussed at length in the Senate by Richard O’Connor in relation to the Commonwealth Franchise Bill in 1902, that is, once the Commonwealth passes a law on a subject already covered by state law, the Commonwealth law takes precedent. But Galligan is wrong to argue that the judgment in Pearson faithfully portrays the intentions of the founding fathers. They did not think that any right of new Aboriginal enrolment ceased once the Franchise Act became law in June 1902. As the members of the Constitutional Conventions’ Drafting Committee and the movers of the 1902 Commonwealth Franchise Bill showed clearly, they wanted the sons and successive generations of Aborigines in the new Commonwealth to have the same voting rights their fathers had in the old colonies. This was the opinion of both the Constitution’s authors and its leading interpreters in 1901 and 1961.
The date of the High Court decision in R v. Pearson also poses a problem for Galligan’s case. It was handed down in 1983 and is significant because, while we should normally accept a High Court judgment as a definitive answer to the meaning of a constitutional provision, it cannot rewrite history and determine how that provision was interpreted over the previous 80 years, which is the real subject of the debate here. Over that period, the historical evidence on which Galligan relies does not support his claims. The existence of new Aboriginal names (especially those of newly enfranchised women) on the Commonwealth electoral rolls in New South Wales, South Australia and Tasmania from 1903 onwards, shows how the Commonwealth Franchise Act was interpreted in early administrative practice. This practice derived from, and was consistent with, the opinions of Richard O’Connor, the Barton government, Quick and Garran and Geoffrey Sawer.
Hence, the case I argued in The Break-up of Australia remains unaffected by Galligan’s critique. The repulsive portrait painted by academic lawyers Megan Davis and George Williams of racist Australian governments wilfully disenfranchising all Aboriginal people, denying them rights as citizens, and casting them out of the polity, is historically untrue, a fabrication.
 Megan Davis and Zrinka Lemezina, ‘Indigenous Australians and the Preamble: Towards a More Inclusive Constitution or Entrenching Marginalisation’, UNSW Law Journal, Vol. 33(2), 2010, p 247
 George Williams, ‘Recognition would be the right thing to do’, Weekend Australian, 2–3 April 2016, Review section, p 18
 Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution, report of the expert panel, p 19, citing George Williams, ‘The Races Power and the 1967 Referendum’, Australian Indigenous Law Review Special Edition, 11, 2007, p 8
 John Chesterman and Brian Galligan, Citizens Without Rights: Aborigines and Australian Citizenship, Cambridge University Press, Melbourne 1997
 Commonwealth Parliamentary Debates, House of Representatives, 24 April 1902, p 11975
 Commonwealth Parliamentary Debates, House of Representatives, 24 April 1902, pp 11975–6
 Aborigines Protection Board, Report 1910, in Votes and Proceedings of the NSW Legislative Assembly, 1910, Appendices B and D, pp 16-21
 Commonwealth Parliamentary Debates, Senate, 10 April 1902, pp 11584-5
 Analysis of annual Aborigines Protection Board reports from 1882 to 1938 in Keith Windschuttle, The Fabrication of Aboriginal History, Volume Three, The Stolen Generations 1881-2008, Macleay Press, Sydney, 2009, pp 205-7
 ‘The National Association’, Sydney Morning Herald, 6 January 1892, p 9; Bede Nairn, Civilising Capitalism: The Labour Movement in New South Wales 1870-1900, ANU Press, Canberra, 1973, p 147
 House of Representatives, Report from the Select Committee on Voting Rights for Aborigines, (H.G. Pearce, Chairman), Government Printer, Canberra, 19 October 1961
 Report from the Select Committee on Voting Rights for Aborigines, pp 3-4
 Report from the Select Committee on Voting Rights for Aborigines, p 4
 Keith Windschuttle, The Break-up of Australia: The Real Agenda Behind Aboriginal Recognition, Quadrant Books, Sydney, 2016, pp 180-1
 Data supplied by Philippa Scarlett and recorded by Jim (James Leslie) Smith in Gundungurra Country, unpublished thesis, 2008, p 444, in National Library of Australia, Trove listing
 Larissa Behrendt and Alison Vivian, Indigenous Self-Determination and the Charter of Human Rights and Responsibilities, Victorian Equal Opportunity and Human Rights Commission, Melbourne 2010, p 14
 Michael Connor, ‘The Family Story of the Behrendts’, Quadrant, November 2016, p 17
 Jim Smith, “Aboriginal voters in the Burragorang Valley, NSW, 1869-1953”, Journal of the Royal Historical Society, Vol 98, Part 2, December 2012, p 170
 Smith, “Aboriginal voters in the Burragorang Valley”, pp 170, 173
 Smith, “Aboriginal voters in the Burragorang Valley”, pp 178-9, 184
 Smith, “Aboriginal voters in the Burragorang Valley”, p 177
 Smith, “Aboriginal voters in the Burragorang Valley”, pp 170-1
 Report from the Select Committee on Voting Rights for Aborigines, p 4
 The original ordinances themselves are now available at several online sources, and a summary of the content of all twentieth century Northern Territory Aboriginal ordinances is in Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Commonwealth of Australia, Canberra, 1997, Appendix 7, Northern Territory
 Commonwealth Parliamentary Debates, House of Representatives, 24 April 1902, pp 11975, 11976, 11977, 11979; Senate, 10 April 1902, p 11580
 Commonwealth Parliamentary Debates, Senate, 29 May 1902, p 13006
 Commonwealth Parliamentary Debates, Senate, 10 April 1902, pp 11585-7
 Commonwealth Parliamentary Debates, Senate, 10 April 1902, pp 11585-6
 Commonwealth Parliamentary Debates, House of Representatives, 24 April 1902, p 11975
 I discuss at length the full text of the successful amendment and the reasons for its acceptance in Break-up of Australia pp 197-208
 John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth, (1901), revised edition, LexisNexis Butterworths, Sydney, 2015, pp 557–9
 Report from the Select Committee on Voting Rights for Aborigines, p 38