It is well known that the federal Constitution was drafted and adopted by the narrowest section of Australian society. Our “founding fathers” were white, male, Christian, middle-aged and drawn almost exclusively from Australia’s ruling classes … This was and is a preamble tainted with racism, sexism and xenophobia. That is, 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”. —Megan Davis, University of New South Wales, 2010
At Federation in 1901, Australia prided itself on being the most democratic country in the world. This was not an exaggeration. At the time, the majority of colonies who joined the Federation based their democratic political structure on “manhood suffrage”, that is, “one man, one vote”. It meant all residents who were adult males over twenty-one years of age who were born in Australia, or even in another British colony, had the right to vote. This right, not granted by Britain at home until 1914, was gained in the New South Wales Electoral Reform Act of 1858. By the 1890s, earlier property qualifications for being on the electoral roll had been abolished in New South Wales, Victoria, South Australia and Tasmania.
Despite claims by legal academics today that Aborigines were excluded from the franchise, this is not true. They had the vote in the colonies of New South Wales, Victoria, South Australia and Tasmania, without any qualification. Only in Queensland and Western Australia, where state governments imposed a £100 property qualification for voting, were they largely disenfranchised.
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Like many white itinerant workers in rural Australia at the time, Aborigines were enrolled to vote even if they were illiterate and had no fixed address. The local police copied their names onto the electoral roll from both their own records and the regular nineteenth-century censuses of the Aboriginal population. Thanks to Section 41 of the Constitution, the right of Aboriginal people to vote in colonial elections was retained after 1901 for the new Commonwealth. In 1902 the new Federation passed the Commonwealth Franchise Bill to extend the vote to all the women of the country, a right not won in the United States until 1920 and in Britain until 1928. From 1902 onwards, Aboriginal women in the four respective states had the same right to vote as men.
At the time, these facts were widely recognised not just in Australia but around the democratic world. Progressive authors came from overseas to visit and write about our more radical democracy. Their books included State Experiments in Australia and New Zealand (1902) by Pember Reeves, a New Zealand politician and journalist who became head of the London School of Economics. The visiting French politician and academic historian Albert Métin wrote Socialisme Sans Doctrine (1901), a book that enhanced Australia’s social democratic reputation throughout Europe. Up until the 1970s, courses in Australian history at Australian universities — certainly at the two Sydney institutions where I taught during that decade — instilled in their students an awareness of our early political adventurousness and the international interest in it.
Yet today, that knowledge has been erased from the national consciousness. Even Tony Abbott, a former Rhodes Scholar, was completely unaware of it. In 2014, in a speech supporting the case for constitutional reform, the then-Prime Minister said the main problem for indigenous people was not the hostility of the Commonwealth’s founders but their indifference:
It is not that our constitutional founders made a mistake — they simply failed to give Aboriginal people more than a passing thought. So in addressing this subject, our job is not to correct their work but to complete it.
Tony Abbott not only endorsed the need for a constitutional amendment to rectify the supposed political neglect of the Aborigines, but did not challenge the general thrust of the report by Julia Gillard’s “expert panel”, a body she established to generate a case for constitutional amendment. The panel repeated the completely erroneous proposition that the original Constitution omitted Aboriginal people from the new Australian nation by denying them the right to vote.
The passage at the start of this article by Megan Davis is the kind of politically jaundiced prose that is now standard fare in Australian academic discussion of these issues. It appeared in the University of New South Wales Law Journal, a publication whose masthead assures us it is “one of Australia’s leading peer reviewed legal journals”. The passage also provides a good indicator of the line you need to take today to make a career in the law schools of our universities and in politics beyond. The author is Professor of Constitutional Law at the University of New South Wales, and a Pro-Vice-Chancellor of the university. Davis wrote the passage in 2010 and the following year Julia Gillard appointed her to the expert panel on constitutional recognition.
Davis also has a career on the international political stage as a long-serving member of the United Nations Permanent Forum on Indigenous Issues, a body that meets in New York and which in 2015 appointed her its permanent chair. In this position, one of her decisions has been to invite Aboriginal activists to appear before her committee to testify about the numerous breaches Australia allegedly commits against indigenous human rights. One recent witness was the co-chair of the National Congress of Australia’s First Peoples, Jackie Huggins, who produced a long charge sheet of Australian government felonies. Among them were Commonwealth initiatives, including the Howard government’s “Intervention” exercise in 2007 to prevent domestic violence and child sexual abuse in remote communities, and the “Closing the Gap” program endorsed by all Prime Ministers since its introduction by Kevin Rudd. Both policies have allegedly committed human rights offences because they “explicitly remove and deny indigenous control and decision making”.
In other words, in piling up their evidence at this UN forum, Davis and Huggins are trying to give Australia a quite different international reputation from the one we had in 1901 at Federation. Thanks to their efforts we now find ourselves standing in the line-up as one of the world’s serial offenders against human rights.
In the debate over constitutional recognition, Davis and Huggins are far from alone. They are speaking within a consensus of the Aboriginal establishment and its white supporters. The central argument they use to justify change today is that the existing Constitution is a racist document, the product of an “age of discrimination” in Australian history. These authors say few Australians today realise how bad their Constitution is, but once it is made clear, they think most people will support the project to amend it.
The right to vote of Aborigines
But they do vote in New South Wales. I have seen them voting. —Sir William Lyne, House of Representatives, April 1902
Megan Davis claims the reference in the constitutional preamble to “the people” disguises the true nature of the composition of the Australian polity. The preamble of the Commonwealth of Australia Constitution Act (July 9, 1900), begins with words that define “the people” simply by their geography:
Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established …
Davis claims that at Federation this notion of “the people” omitted from the Australian polity indigenous people, women, and Chinese and Kanak labourers by denying them all the right to vote. This claim reveals her complete ignorance of Australia electoral history. Gillard’s expert panel repeated the same fiction, citing an article by Davis’s colleague, George Williams, another professor in the law school of the University of New South Wales, who claimed Aborigines could not vote for the constitutional conventions in the 1890s.
At the time, the New South Wales census showed that about 3000 adult male Aborigines, mostly of full descent, were largely assimilated and had regular or seasonal employment in the farming and pastoral industries. No one counted exactly how many Aborigines in New South Wales exercised their right to vote because, with no ethnic test for eligibility, there was no reason for officials to record it. However, there was no shortage of public observations that they did. In fact, several observations of Aborigines voting were recorded in debates in the new federal parliament in 1902 over the Commonwealth Franchise Bill. Sir William Lyne, the Minister for Home Affairs in the Barton government, said Aborigines could already vote in New South Wales long before Federation. This meant 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].
In New South Wales, from the early 1890s onwards, so many Aborigines were enrolled to vote that the struggle for their electoral loyalty became a public contest. At the election of 1891, the newly formed Labor Electoral Leagues won their first seats in the New South Wales Parliament, gaining a total of thirty-five Labor members, with seventeen of them representing rural seats. This meant Labor held the balance of power in the Legislative Assembly. In central and western New South Wales, the votes of itinerant pastoral workers were essential for Labor members to win seats. In response, farmers and pastoralists formed the National Association in 1892 to combat the labour movement. At some locations, they 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.
In South Australia, electoral laws passed in 1895 specifically stated that Aboriginal people could vote. Since that colony also gave all adult women the right to vote in 1895, that meant both men and women of Aboriginal descent were enfranchised from then on. In 1896 and for years afterwards, between 100 and 200 Aborigines at the Point McLeay Settlement in South Australia were known to be regular voters at both state and federal elections. Photographs of Aboriginal electors at the Point McLeay polling booth in 1908, and of their names on the South Australian electoral roll in 1905, were for a long time been published on the Australian Electoral Commission’s website. (The original AEC page has been taken down and replaced with a once-over-quickly timeline. The original page can be read at the Wayback Machine Web Archive.)
Local history researchers have found the same in New South Wales, especially in the post-Federation period. For instance, in his thesis “Gundungurra Country” (2008), anthropologist Jim Smith records that 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.
Also in New South Wales, Erambie Aboriginal Station, also known as the Erambie Mission, established in Cowra in 1924, became what its historian, Peter Read, called a major grouping of the Wiradjuri people, especially of the Murray, Glass and Coe families. I have checked the electoral rolls to see if any of these families were able to vote in the 1930s in the electoral district of Calare, subdistrict Cowra. I found 34 members of these and other Erambie Aboriginal families on the electoral rolls, 23 of them men and 11 women. The names of the women are there because the Commonwealth Franchise Act of 1902 gave the vote to all Australian women, including those of Aboriginal descent. Here are their names and addresses:
Murray Family 1930s: Electors: Harry Murray, Herbert John Murray, Jane Murray, Claude Murray, James Murray, Percy Murray, Alan Murray, Alfred Murray, Ethel Murray, Mary Ethel Murray. Adresses given: “Erambie Mission”, “Mission”, “Aboriginal Station”, West Cowra.
Glass Family 1930s: Electors: Sidney Glass, Joseph Glass, Reginald Glass, Amelia Glass. Addresses given: West Cowra, “Mission Reserve Wellington”, “Town Common Wellington”, “Town Common Orange”.
Coe Family 1930s: Electors: Cecil Coe, Leslie Coe, Mary Jane Coe, Paul Coe (senior), Thomas Coe, Edith Coe. Addresses given: West Cowra, Cowra, “Erambie Mission”.
Ingram Family 1930s: Electors: Louisa Agnes Ingram, Lenry Ingram, Lockey Ingram. Addresses given: “Erambie Mission”, West Cowra
Williams Family 1930s: Electors: Alfred John Williams, Elizabeth Williams, George Williams, Arthur Williams, Muriel Williams, Peter Williams. Addresses given: West Cowra, “Mission”, “The Mission”, “Erambie”, “Aborigines Station”
Bamblett Family 1930s: Electors: Alfred Bamblett, Cameron Bamblett, James Bamblett, Kathleen Bamblett, Rebecca Hazel Bamblett. Addresses given: West Cowra, “Aboriginal Station”
In Tasmania, both the colonial electoral rolls before Federation and later Commonwealth electoral rolls contain many of the family names of people who have long formed the core of the state’s Aboriginal community. As well as having Tasmanian mainland addresses in the nineteenth century at Launceston, Deloraine, Westbury and Penguin, by 1899 the electoral rolls included the Bass Strait islands and revealed that twenty-two male members of the Barratt, Beedon, Brown, Burgess, Davey, Everett, Harley, Maclaine, Mansell, Maynard, Smith and Thomas families were enrolled to vote in colonial elections. By the time of the second election for the Commonwealth parliament in 1903, Cape Barren Island women of Aboriginal descent from the same families were also voting alongside the men.
As noted above, only in the colonies of Queensland after 1885, and Western Australia after 1893, were Aborigines denied the vote by means of a property qualification. Rather than endorse this, the writers of the federal Constitution introduced a measure in Section 25 that sought to penalise both these states and bring them into line with the others where Aborigines did have the franchise. Let me re-state the constitutional position, which is sufficient to refute the claims by Professors Davis and Williams that Aborigines were cast out of the polity. At Federation in 1901, the Constitution granted all people who had previously been enrolled to vote in the colonies the right to vote for the Commonwealth parliament. Section 41 of the Constitution said:
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 Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.
This meant that all Aborigines who before Federation were enrolled to vote in New South Wales, Victoria, South Australia and Tasmania, were given a constitutional guarantee that they could vote for the federal parliament after 1901. Section 41, which remains to this day intact and unamended, shows that the sweeping claims about constitutional political discrimination made by Davis, Williams and other academic lawyers are completely untrustworthy.
As for women and Chinese and Kanak labourers being denied the vote in the new Federation, Davis does not have a clue what she is talking about. Before the first full national election was held for the new parliament, the Commonwealth Franchise Bill 1902 was passed in order to give the vote to the women of Australia, including all Aboriginal women in New South Wales, Victoria, South Australia and Tasmania. Chinese people resident in Australia could already vote and had long done so in all colonial parliaments. All Australian-domiciled Chinese and any Chinese born in any British colony who were “natural-born subjects of Her Majesty” were eligible to vote in the Australian colonies before 1901 and in the Australian Commonwealth after 1901. When he introduced the Commonwealth Franchise Bill in April 1902, Richard O’Connor, Leader of the Government in the Senate said:
I have looked carefully through all the Chinese Restriction Acts, and there is no provision in any of them depriving a Chinaman who is a natural-born subject of His Majesty in any other part of the world from voting if he is here. There are a number of Acts which impose restrictions on Chinese coming here, but being here, there is no provision which deprives them of their right to vote … That being so, the present condition of things is that these natural-born and naturalised British subjects who are here now have the right, and we cannot take it away from them.
On Davis’s list of purported outcasts, only the Kanak labourers were disenfranchised, but there was a good reason for this. They were temporary foreign workers engaged on fixed-term contracts of usually three to five years, after which they were legally obliged to return home to their Pacific Islands, with their employers pre-paying the fare for the return journey. Australia still employs foreign “guest workers” under similar arrangements. They are not Australian citizens and don’t get to vote in Australian elections today either. Only the intractable mentality now cultivated within the law schools of our universities could regard such people as victims of racism.
The “race provision” in Section 25
The first problem is section 25. It acknowledges the states can disqualify people from voting due to their race. This reflects the fact that at Federation in 1901, and for decades afterwards, states denied the vote to Aborigines. Unfortunately, the constitution still recognises this as being acceptable. The section is repugnant and should be deleted. —George Williams, Sydney Morning Herald, 2010
Section 25 demonstrates how we were excluded from democratic participation: we were prevented from voting and therefore from exercising our democratic rights. —Noel Pearson, A Rightful Place, 2014
The report of Julia Gillard’s expert panel recommends the repeal of Section 25 of the Constitution because it “is a racially discriminatory provision that contemplates the disqualification of all persons ‘of any race’ from voting in State elections”. However, no one should be bluffed into accepting this. Section 25 says in full:
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 people of the State or of the Commonwealth, persons of the race resident in that state shall not be counted.
Section 25 of the Constitution was designed to respond to the election policies of Queensland and Western Australia by reducing the number of their federal members in the House of Representatives, which was determined by the size of a state’s population. Where a state denied Aborigines the vote, then Aboriginal people could not be included in the statistics of its population. This mattered in Queensland, where in 1901 the government counted 6670 assimilated Aborigines but estimated there were another 20,000 living within state borders beyond white settlement; and in Western Australia where there were 19,000 known Aboriginal and part-Aboriginal inhabitants, plus an estimated 10,000 living in still unexplored territory beyond the limits of settlement.
When finally explored between the two world wars, these regions turned out to have very small Aboriginal populations, only a fraction of those estimated. But if they had been permitted to use these estimates in 1901, the states of Queensland and Western Australia would have each boosted its number of parliamentary representatives by one.
The expert panel’s report does acknowledge this last point but still claims the Constitution actually approved of the racially discriminatory voting laws in Queensland and Western Australia. “Section 25 countenances the exclusion of persons of particular races from State elections,” the report says. The word countenances used here is quite deceptive. The Constitution guaranteed that in the four states where Aboriginal people had the vote, they thereby had the right to vote for the Commonwealth. At the same time it penalised the two states that denied Aborigines the franchise. Section 25 did not abolish those arrangements but neither did it “countenance” or otherwise approve of them.
The original inspiration for Section 25 was the Fourteenth Amendment of the Constitution of the United States of America when it refashioned political rights in the aftermath to the Civil War of 1861–65. In July 1868, the Americans adopted this as one of their Reconstruction Amendments. Its aim was to gain the franchise for former black slaves in the South who were now American citizens. It penalised those states in the American South whose franchise still retained racial disqualification. In recording this connection, John Quick and Robert Garran’s Annotated Constitution of the Australian Constitution (1901) observed that the American Fourteenth Amendment:
was designed to penalize by a reduction of their federal representation, those states which refused to enfranchise the negroes. The effect of the section in this [Australian] Constitution [Section 25] is that where, in any State, all the persons of any race—such, for instance, as Polynesians, Japanese, &c—are disqualified from voting at elections for the popular Chamber in the State, the persons of that race resident in that State cannot be counted in the statistics used for ascertaining the quota.
Overall, this meant that in Australia all adult males, including those of Aboriginal descent, in New South Wales, Victoria, South Australia and Tasmania, who had previously been enrolled to vote in the colonies, had the right to vote for the Commonwealth parliament. And for the two states that denied the vote to Aborigines before 1901, Queensland and Western Australia, Section 25 reduced their potential number of federal representatives. On these grounds, the assertion that Section 25 makes the Constitution a racist document is patently false.
Section 51(xxvi) and racial discrimination
The myths spread about Section 51(xxvi) are even more outlandish. George Williams claims: “Section 51(xxvi) was deliberately inserted into the Constitution to allow the Commonwealth to discriminate against sections of the community on account of their race.” Yet this is the Section that was amended after the famous referendum of 1967, when 90 per cent of the Australian people voted Yes, thereby allowing the Commonwealth power to make laws for Aboriginal people.
Before 1967, that power was reserved only for the states. This was because the first Commonwealth governments were mainly concerned with national issues and foreign affairs, while matters of social and domestic policy were retained by the states.
When the 1967 referendum was put to the Australian people, all the media publicity and even handout material at polling booths reproduced a joint statement by Prime Minister Harold Holt, Opposition Leader Gough Whitlam and Country Party leader John McEwen that the Commonwealth would only gain the power to make laws “in the best interests” of Aboriginal people. However, today’s critics now claim this clause allows racial discrimination. It could supposedly be used against the interests of Aboriginal people. The example they most commonly give is the Howard government’s intervention in 2007 which allegedly breached Aboriginal rights to self-determination by restricting the sale of alcohol, by introducing welfare cards and by sending in the police to arrest the elders of several remote communities in northern Australia who were having sex with children – some discrimination!
Moreover, critics of Section 51(xxvi) deceive the public by claiming the High Court in the Kartinyeri case in 1998 actually decided that this clause could be used to disadvantage Aboriginal people. This claim has been made not only by legal academics and Aboriginal activists, but also by Gillard’s expert panel. However, the High Court did not decide any such thing. In its 1998 decision, the court was evenly divided on that particular issue: two judges for (Gummow and Hayne) and two judges against (Kirby and Gaudron). This is not just my opinion. The senior counsel for the Ngarrindjeri women who brought the case in 1998, James Spigelman, later Chief Justice of New South Wales, wrote in a Quadrant article in April 2012:
The [expert panel’s] Report asserts, as if it were not open to argument, that the race power in s51(xxvi) can be used to discriminate against the people of a race. It refers to the High Court judgment in Kartinyeri as authority for that proposition. The point may or may not be correct, but that judgment is by no means clear in this respect.
And yet Aboriginal politicians Linda Burney and Ken Wyatt have claimed on the hustings and in newspaper opinion pieces, without anyone rebuking them, that the High Court’s lack of a majority on this issue was actually a clear-cut decision that the Constitution “even has sections that allow for discrimination based on race”.
Section 41 and the Commonwealth Franchise Act of 1902
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.
—on introducing the Commonwealth Franchise Bill, House of Representatives, April 1902
Despite the guarantee provided by Section 41 that anyone entitled to vote in colonial elections retained the same right to vote for the Commonwealth parliament, its implications remain widely misrepresented today. George Williams never misses a chance to try to score points against the authors of the Constitution on this question. In 2016, reviewing a book of essays on the proposed constitutional referendum, he wrote:
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.
This passage by Williams is risible. Rather than seeing “no place” for Aboriginal people, the authors of the Constitution included Section 41, which made it constitutionally impossible for the federal parliament to exclude Australia’s Aboriginal peoples from the franchise. It guaranteed that all those Aborigines who could vote in the colonial elections in New South Wales, Victoria, South Australia and Tasmania retained the same right to vote for the new Commonwealth Parliament. The only Aborigines excluded were those in Queensland and Western Australia where there was a £100 property qualification for voting, which continued in each of those two states after Federation. As someone who brags in his profile on his university’s website that he is “one of Australia’s leading constitutional lawyers and public commentators”, Williams must surely be well aware of this himself. Yet he has chosen to keep the information from readers of his commentaries in the mainstream media.
There should not be any doubts about the meaning of Section 41 or its implications for indigenous rights to vote. The Commonwealth Franchise Act of 1902 could not alter or evade Section 41’s constitutional guarantee, as many speakers in the parliamentary debates at the time publicly stated, including the Barton government’s leader in the Senate, Richard O’Connor, when he introduced the relevant Bill. Section 41 has never been amended and so remains in force to this day. Its wording, as shown in the emphases below, refers not only to those who had the vote before 1901 but also to those who acquired it at any time after. 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 Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.
Hence, Section 41 must mean that, in those states where the Aboriginal right to vote had never been repealed—New South Wales, Victoria, South Australia and Tasmania—Aboriginal people listed on state electoral rolls at any time before or after 1901 were always eligible to vote in federal elections.
Keith Windschuttle is the Editor of Quadrant. This is an edited extract from his book The Break-up of Australia: The Real Agenda behind Aboriginal Recognition (Quadrant Books).