Fabricating Aboriginal Voting: Galligan vs. Windschuttle

Brian Galligan writes:

In response to my review of his book The Break-Up of Australia: The Real Agenda Behind Aboriginal Recognition, Keith Windschuttle has published a response in the March 2017 issue of Quadrant. He has kindly invited me to respond. It might seem odd that a review would draw such a lengthy, and at times vitriolic response. However, the issues in dispute are vital for understanding Australia’s constitutional history and character, and the Commonwealth’s early treatment of Aboriginal people.

In particular, did the Australian Constitution and the first Commonwealth Parliament and government in its Commonwealth Franchise Act 1902 treat Aboriginal people as citizens with the same political rights as everyone else? Or were their political rights, particularly voting rights, denied? The answer requires some examination of: the relevant constitutional section—its drafting and intended meaning; the Franchise Act 1902; and whether Aboriginal people were excluded or not in practice. These were the three facets I took up in my review, leaving aside more outlandish claims about the “break-up of Australia” and more sensible analysis of the Australian Constitution showing it was not a racist document as some critics have claimed.[1] I was writing a review not an alternative monograph.

Much of Windschuttle’s rejoinder is a lengthy restatement of arguments and evidence from his book directed at what he calls my “purported analysis” that he brands in his introduction as “selective, freighted with pre-conception and laughably at odds with fact” and “slipshod scholarship”. Once an academic, Windschuttle should know that such invective typically prefaces weak argument. In his introduction to Part 1 of his response, Windschuttle makes much of the refusal of Peter Brown, editor of Inside Story, who published my review, to publish his lengthy response, leaving him, in his words, “holding my nose against the stench of yet another decomposing body in the graveyard of Australian academic integrity”. For the record, back in December 2016 I first sent my review to John O’Sullivan, editor of Quadrant with a comment that I’d be happy to have it sent on to Windschuttle. I received no acknowledgment or response, so published it with Inside Story. [2] I am told the editor’s non-response was an oversight, and so it might well have been.

It does mean that my response to Windschuttle’s long rejoinder and dismissive invective needs some detailed analysis and presentation of points made in the original review. Otherwise Quadrant readers would be left with a sustained attack on a short review published elsewhere. I am grateful to be extended this privilege of outlining what Windschuttle has taken such lengthy exception to, and for the opportunity to respond to his criticisms.

 Franchise Act 1902: Denying Aboriginal natives of Australia the vote

The Franchise Act 1902 was clear in denying the vote to “Aboriginal natives of Australia”, along with aboriginal natives of Asia, Africa and the Pacific Islands, except New Zealand. The exclusion was extended to Aboriginal natives of Australia by means of an amendment to section 4 of the Franchise Act. Despite impassioned and noble rhetoric from Senator O’Connor, government leader in the Senate who introduced the bill, the controversial amendment was eventually passed. The possible saving clause was Section 41 of the Constitution. The wording of Section 4 of the Commonwealth Franchise Act 1902 is as follows:

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 41 of the Constitution.

The Franchise Act is clear: Aboriginal natives of Australia were excluded, unless entitled under Section 41 of the Constitution, which is examined in the next section.

So who was an “Aboriginal native of Australia”? The meaning and extent of the term became an issue immediately after Federation and was defined narrowly by the first attorney-general, Alfred Deakin. The particular case related to section 127 of the Constitution that also uses the term “aboriginal native”. In his ministerial directive in August 1901, Deakin ruled that “half-castes” were not “aboriginal natives” and so were not affected by section 127 of the Constitution. [3] Deakin reasoned that this was a restrictive clause so should be interpreted narrowly. Section 127, repealed in the 1967 referendum, stipulated that “aboriginal natives” were not to be counted in determining early voting and financial arrangements for the new Commonwealth. Deakin’s restrictive definition of “aboriginal native” had two essential parts: being aboriginal meaning a descendant from the original people of the country, and a native meaning born in that country. This meant that an Asian born in Australia was not an aboriginal native of Asia, being a native of Australia. Deakin’s definition also ruled out people of mixed race: a person with one Australian Aboriginal parent was not an Aboriginal native but only part Aboriginal and so not strictly Aboriginal.

Deakin’s authoritative ruling was applied to the Electoral Act, as affirmed by Robert Garran, secretary of the Attorney-General’s Department, in 1905: “half-castes are not disqualified”. However, Garran advised, “all persons in whom the aboriginal blood preponderates are disqualified”.[4] This preponderant blood stipulation was an extension of Deakin’s stricter definition, but was accepted and applied throughout the Commonwealth bureaucracy. It was still being used in vetting people by the Commonwealth Electoral Office in 1961. On the other hand, those without preponderant Aboriginal blood, “half-castes” or less, were not classified as “aboriginal natives of Australia” and so were not banned from voting by the Franchise Act.

It is important to note that the category of Aboriginal people in modern usage does not equate with Aboriginal natives barred in the Franchise Act 1902. A person is classified as Aboriginal today if they claim some Aboriginal lineage, identify as Aboriginal and are recognised as such. Curiously, Windschuttle pays no attention to this key difference between Aboriginal natives who were barred and Aboriginal people in today’s terms who were not. He documents early voting in Tasmania by Aboriginal people whose names are prominent today, but omits to note that officially there were no Aboriginal natives in Tasmania at the time, and hence none were caught by the Franchise Act exclusion. The people he traces were of mixed ancestry and not Aboriginal natives as defined by the Franchise Act.

In his response, Windschuttle makes much of his tracing of other prominent Aboriginal names using ancestry.com: Goolagongs, Boneys and Professor Larissa Behrendt. He reports forty women with the surname Goolagong and twenty-eight Boneys being on electoral rolls in New South Wales between 1913 and 1943, and Larissa Behrendt’s grandmother Lavena being on the electoral roll in 1936. This is supposed to clinch the point that Aboriginal people were not excluded by the Commonwealth Franchise Act 1902 since women got the right to vote in New South Wales in 1902. This might appear reassuring but is largely beside the point. As with the Tasmanian case, we would need to know whether any of these people were Aboriginal natives according to the disabling legislative category. Windschuttle’s methodology of testing the restriction on Aboriginal voting by using a broader modern category of Aboriginal people is fundamentally flawed. Nor is it conclusive to find that there were women with the common surname of Goolagong and Boney on New South Wales electoral rolls in the decades after federation. For an accurate picture we would need to know how many Aboriginal people were not on the electoral rolls. Ancestry.com is of no assistance with this.

Section 41 of the Constitution

Other than blurring the categories of “Aboriginal natives” who were excluded by the Franchise Act and “Aboriginal people” of mixed ancestry who were not, Windschuttle’s case relies on Section 41 of the Constitution being a cast-iron guarantee that virtually neuters the Franchise Act’s exclusion. Section 41 is as follows:

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.

Section 41 was one of the more contentious sections of the Constitution, designed to protect the right of women who had acquired the right to vote in their state, as women had in South Australia in 1894.[5] The South Australian delegate William Holder tried to have a universal franchise clause inserted in the Constitution, but failed for several reasons: that it would be best left to the new Commonwealth government to enact; and that state sensitivities might be aroused by putting such a blanket entitlement in the Constitution. When Holder’s motion for a universal franchise was defeated, he proposed the more modest alternative of ensuring that those possessing the right to vote would not be deprived of that right. This was carried and became Section 41.

Most of the discussion of this section concerned protecting women who already had the vote.  Some voiced concerns about leaving it to states that might make unacceptable changes such as giving the vote to sixteen-year-olds or 10,000 Chinese in the Northern Territory, as one delegate suggested. Surprisingly, Aborigines were barely mentioned. The section was envisaged by most of the constitutional framers as interim until the new federal parliament passed a uniform franchise. Convention leader Edmund Barton opposed the section because he thought states might manipulate the federal franchise in unacceptable ways, so he brought it back to a subsequent session for reconsideration. There, Holder made clear his intention: “I want the states to have their rights with regard to the franchise unimpaired up to the day when the federal franchise is indicated.”[6] Despite Barton’s misgivings, others claimed that state manipulation would be unlikely once the federal franchise was enacted, and the section was left as previously drafted. As with other contentious matters, ambiguities were left for future parliaments to decide, on the assumption that good sense would prevail.

Windschuttle’s evidence for Section 41 being a guarantee for Aboriginal voting into the future is his main purpose in his response. In so doing he relies on the selective massaging of a minority view put forward intermittently by various delegates. He quotes at length Sir John Downer’s claim that the states would continue to define the right to vote in the future and that such laws would prevail over any law passed by the Commonwealth because of Section 41. To my earlier charge that “Downer’s was an exception to the general view”, Windschuttle responds by requoting Downer and suggesting I seem unaware that he was a member of the three-man drafting committee and one of the authors of the Constitution. This is hardly a reasoned response.

The other two members of the drafting committee, Edmund Barton and Richard O’Connor, were more influential: Barton as leader of the whole convention and first prime minister; O’Connor as one of the most articulate of the Founders and government leader in the Senate of the first parliament; and both subsequently as original justices of the High Court. Windschuttle acknowledges that their view differed from that of Downer. The difference was about whether Commonwealth laws would be subject to future state laws, he claims. This is a furphy and beside the point because no one assumed that Commonwealth laws would be subject to future state laws in areas of its jurisdiction, and Commonwealth electoral laws were clearly a matter for the Commonwealth.

The point at issue is whether Section 41 protected only those enrolled in the colonies cum states prior to the passing of the Commonwealth franchise, or whether as Windschuttle claims it protected future generations. The issue was not contested in the High Court until 1983. The case concerned the right to vote at a forthcoming Commonwealth election of people on state rolls who had missed the deadline for the Commonwealth rolls. The High Court ruled that Section 41 applied only to people on state rolls at the time of the first Commonwealth Franchise Act 1902.[7] The joint opinion of Chief Justice Gibbs and Justices Mason and Wilson pointed out that Section 41 did not confer a right or entitlement to vote but rather prevented the Commonwealth from taking away a right to vote. That limitation applied until the Commonwealth passed its own franchise legislation. If states could amend electoral laws after the Commonwealth franchise was passed, that would mean the states could alter the Commonwealth franchise. It was impossible to suppose that this was intended. Therefore, the judges concluded that Section 41 “preserves only those rights which were in existence before the passing of the Commonwealth Franchise Act 1902”. Their decision affirmed the dominant view of the Founders, including that of O’Connor discussed below, and is entirely consistent with the institutional architecture of the Constitution. It flatly contradicts Windschuttle’s view, so he charges the High Court with rewriting eighty years of history. Gibbs and Wilson were two of the most conservative members of recent High Courts, given to careful literalism and legalism in their decision making—hardly ones to rewrite eighty years of history.

O’Connor’s defining role

As mentioned, Richard O’Connor was one of the most eminent and articulate of the Founders, a member of the three-man drafting committee, and government leader in the Senate who had charge of the Commonwealth franchise bill. His views both in the constitutional conventions in framing Section 41 and in the first Senate in introducing and shepherding through the Franchise Act are authoritative. Windschuttle spends a good deal of time both in his book and in his response quoting and interpreting O’Connor. Unfortunately he distorts O’Connor’s position. To show this requires some detailed analysis of O’Connor’s speeches.

O’Connor made a noble defence of the original Franchise Bill, which had no restriction on Aboriginal Australians, against senators from Queensland and Western Australia who pushed for their exclusion.[8] Senator Matheson from Western Australia claimed, “Surely it is absolutely repugnant to the greater number of the people of the Commonwealth that an aboriginal man, or aboriginal lubra or gin—a horrible, degraded, dirty creature—should have the same rights, simply by virtue of being twenty-one years of age, that we have, after some debate today, decided to give to our wives and daughters.” Senator Stewart from Queensland railed against “these opium-eating blacks, these ignorant aboriginals, these people who do not care two straws about the government of the country so long as they can get their daily tucker and their allowance of opium”.

Against this barrage, O’Connor stressed that Aboriginal people had the right to vote in all the states, albeit with a high property qualification in Queensland and Western Australia. He said it would be “a monstrous and a savage application of this principle of a white Australia” to exclude Aboriginal people who had the vote, albeit with a high property qualification, in those states. If the excluding amendment were passed, future Aboriginal people would have to tell their sons “who are becoming more civilised, and perhaps as civilized, and as worthy of the franchise as the white men among whom 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.’”

Connor went on to confirm that states had the power to pass legislation regarding voting until the Commonwealth legislated. This was constitutionally protected by Section 41. O’Connor continued:

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.[9]

In other words, O’Connor was restating the majority view that the states controlled electoral enrolment under Section 41 until the Commonwealth legislated its uniform franchise, and after that the Commonwealth legislation was paramount. Windschuttle adds a curious addition: that individuals “were eligible to vote after 1901, even if those individuals only reached adulthood after Federation”. The plain meaning of O’Connor’s above response was that state laws specified enrolment eligibility until the passing of the Commonwealth’s own legislation, so obviously anyone who qualified as an adult before or after Federation up until the Commonwealth Franchise Act 1902 came into force was covered. O’Connor said it would be ridiculous if the states could alter the franchise after the Commonwealth passed its uniform franchise.

O’Connor managed to have the exclusionary amendment defeated in the Senate, but it was reinstated in the House of Representatives and supported by leading liberal and Labor members, including H.B. Higgins, Isaac Isaacs and Chris Watson. Higgins put the motion to reinstate Aboriginal native exclusion because he favoured leaving electoral entitlement to the states; Isaacs supported it on the grounds that Aborigines might not be worthy to vote in Commonwealth elections because of their lack of intelligence, interest and political capacity that would be best left to the states to sort out; and Watson because of his fear that “thousands upon thousands” of Aborigines might predominate in electorates in northern Australia, and be beholden to controlling squatters. O’Connor’s views on including Aboriginal people were not shared by some of his liberal colleagues in the House of Representatives.

With the Aboriginal native exclusion now reinstated, the amendment passed the House. When it came back to the Senate, O’Connor reluctantly accepted the amendment as the price of getting the amended bill passed that would enfranchise women. Having recounted the reinstatement of the Aboriginal exclusion in his book, Windschuttle gives the final say to O’Connor, quoting his earlier speech in defending the Bill against such an amendment. In that speech O’Connor claimed that the franchise given was “the broadest possible one. There is no class of the community left out.” The result would be the “most representative parliament, according to the truest principles of democracy, which exists in the world”. But this passage is from O’Connor’s speech defending the original Franchise Bill, which didn’t exclude “aboriginal natives of Australia”, in early April 1902. O’Connor said no such thing when the Senate passed the amended Franchise Act, which excluded Aboriginal people, in late May.

Easing the exclusion of future generations

That Section 41 of the Constitution was considered to apply only to Aboriginal natives who had the right to vote in state elections prior to the passing of the Franchise Act 1902 is confirmed by subsequent amendments made to the Commonwealth franchise. The Commonwealth Electoral Act 1949 extended the Commonwealth vote to Aborigines entitled to vote at the state level. This would have been superfluous if that right were already guaranteed by Section 41. Such legislative entitlement remained the case up until 1962, with the Commonwealth Electoral Act 1961 providing that:

An aboriginal native of Australia is not entitled to enrolment … unless he—(a) is entitled under the law of the State in which he resides to be enrolled as an elector of that State … or (b) is or has been a member of the Defence Force.

Federal parliament finally repealed the discriminatory provision of the Commonwealth Electoral Act in 1962. Aboriginal voting was made optional, however, and remained so until 1983 when it was made compulsory and brought into line with the general franchise.

Practical exclusion of Aboriginal people

Leading his response, Windschuttle claims that “Aboriginal people were treated by colonial governments, by the Australian Constitution that created the Commonwealth, and the Commonwealth itself in its Commonwealth Franchise Act of 1902 as citizens with the same political rights as everyone else”. We have seen he is wrong about the Franchise Act and the Constitution’s Section 41 that only preserved the right to vote of those on state rolls prior to 1902. But how did it work in practice during the early decades of federation? One possibility might have been for practice to bypass legislative exclusion, or to put the positive spin on the Franchise Act and the Constitution’s Section 41 that Windschuttle champions. There is no evidence of this in the multitude of challenges brought by affected individuals in claiming their rights that were routinely dealt with by the Commonwealth public service and occasionally by courts.

The most comprehensive source of what was happening in practice around Australia is the Report of the Select Committee on Voting Rights of Aborigines.[10] This bipartisan committee toured Australia and took evidence from expert witnesses. Its 1961 Report paved the way for amending the electoral act to take out the exclusion of Aboriginal natives from voting. The Committee found widespread exclusion of Aboriginal people from voting. In Queensland, Western Australia and the Northern Territory where most of those who were categorised as Aboriginal people lived, tens of thousands were excluded because they were “Aboriginal natives” or otherwise banned from state enrolment because they were “half castes” or had “preponderant” Aboriginal blood. Thousands more who did not fall into these categories were unaware of their right and were not enrolled. In the Northern Territory, administered by Commonwealth since 1911, the Committee reported that virtually all were excluded. This was done by electoral regulations that disqualified “wards” from voting. “Of some 17,000 Aborigines in the Northern Territory, only eighty-nine have not been declared wards or have been removed from the Register of Wards.” Aboriginal military veterans were another example. Having been granted Commonwealth voting rights in 1940 for the duration of the Second World War and for a period of six months afterwards, and enfranchised permanently in 1949, many ex-service members in Queensland and Western Australia assumed they were precluded from Commonwealth voting because of state restrictions. In the case of the Torres Strait Islands Regiment in north Queensland, only fifty-seven of the 659 were enrolled in the Commonwealth electorate of Leichhardt.

South Australia was one of the more liberal states, but even there Aboriginal people were sometimes wrongly removed from the Commonwealth electoral roll by bureaucrats. In a well-documented case, Pat Stretton and Christine Finnimore have shown that seventeen South Australian Aborigines at Point McLeay were so removed in the decades after federation.[11] The Select Committee found pockets of non-enrolment in New South Wales and cited one community of Woodenbong as having only five out of fifty entitled people actually on the electoral roll. Windschuttle dismisses this as “a problem due more to Aboriginal lack of awareness of rights rather than an active disenfranchisement by the state”.

As a counter example he cites the Cumeroogunga Aboriginal Station where local historians have found ninety-eight Aboriginal people on the Commonwealth electoral rolls in 1903 and eighty-one in 1906. Had he delved a little deeper he might have found a letter from the district returning officer in the Riverina to the Commonwealth Electoral office in 1904 with a list of Aboriginal electors at the Cumeroogunga Mission who were in receipt of continuous state aid from the New South Wales government. The state attorney-general ruled that they were not entitled to vote. The returning officer advised: “accordingly they were objected to and struck off the State Electoral Rolls by the State’s Revision Court recently held—they are therefore not entitled to remain on the Federal Rolls”.[12] This probably accounts for the reduction in numbers from 1903 to 1906. It shows a state enforcing the rule that those in receipt of state aid were not entitled to vote and were struck off state electoral rolls. It also suggests that the Commonwealth Electoral Office was party to removing such people from its electoral rolls regardless of the more stringent “Aboriginal native” legal restriction.

Other cases show how officials overrode the letter of the law in applying what they thought was its spirit of exclusion. Broome was the context for a notable case concerning Maunga Katie[13], a woman whose mother was a “full blood” Australian Aborigine and whose “reputed” father was from the Philippines. Concerned with the “large number of half-castes in Broome”, the Broome Electoral Office sought advice on her application for enrolment. The next-level divisional officer suggested that, based on the Attorney-General Department’s well established rulings, Maunga Katie was a person of mixed parentage or half-caste born in Australia so not an aboriginal native of Asia or Australia. Consequently she should not be disqualified from enrolment. This advice was not accepted in Broome, with the local electoral official warning that such a determination would have “a far reaching effect”: “There is a large  number of half-castes resident in Broome and District, from whom claims may be anticipated if this claim is accepted.” The official added that “It would be an optimist who would claim to state, with any degree of certainty, the male parentage of any of the progeny of the Broome gins.”

The matter passed up to the Commonwealth Chief Electoral Officer who referred it to the Solicitor-General, pointing out that although the person was “apparently not disqualified from enrolment”, it was the practice of Broome officials to deny enrolment to people with Aboriginal mothers. The Acting Solicitor-General, Knowles, agreed that, although the matter was “doubtful”, it was desirable “to exclude from enrolment persons who are the half-caste offspring of aboriginal natives of Australia”. Knowles cited approvingly the Western Australian Electoral Act that excluded half-castes.[14] Here we have a prime example of how practice excluded people who were legally entitled to enrolment based on confected reasons coloured by racial prejudice and state legislation, and this sanctioned at the highest level.

Figuring the numbers

So just how many Aboriginal people voted in the early Commonwealth and how many were excluded? We don’t have precise figures. In particular, we don’t know how many “half-castes” and people with less than “preponderating blood” who were not banned from voting actually exercised that right. The 1961 Select Committee found that thousands of such people who were integrated into the community were unaware of their right and did not vote. But we do know that many of those classified as Aborigines were restricted from the Commonwealth franchise by state and territory laws and regulations and administrative practice.

According to one reputable estimate, there were 66,950 people officially classified as Aborigines in 1901: 26,670 in Queensland, 5,261 in Western Australia, 23,363 in the Northern Territory, 8065 in New South Wales, 3070 in South Australia, only 521 in Victoria and none in Tasmania.[15] In 1948 the official number was only slightly more at 73,817 and in 1966, a half-decade after the Select Committee’s field work, 79,620. These official numbers come from state Aboriginal Protection Boards and Commissioners of Aboriginal Affairs, and depend on state classifications that varied among states and over time. The most notable change is a large increase in Western Australian numbers to 24,912 in 1947 and a decrease back to 18,439 in 1966. The Tasmanian numbers went from zero to 214 and then fifty-five. Nor do the state-based categories square with the strict “Aboriginal native” category of the Commonwealth or the broader notion of Aboriginal people. In other words the figures are indicative rather than definitive. Nevertheless we can estimate that there were approximately 76,000 people officially classified as Aborigines under special state and territory regulation in the early 1960s.

The 1961 select committee estimated that 30,000 adult Aborigines were denied the federal vote in Australia: 26,000 “full-blood” Aborigines and Torres Strait Islanders, and 4000 people of “preponderantly aboriginal descent” in Queensland and Western Australia. This figure of 30,000 did not include those Aborigines who were unaware of their formal right to vote because they were not of “preponderating aboriginal blood”: the committee found there were “thousands of such people in Queensland and Western Australia, who are already integrated into the community”.[16]

Amending Commonwealth voting legislation by removing the Aboriginal native exclusion was a major step in extending basic political rights to Aboriginal people. Moreover, it provided leadership to the states that in turn amended their own exclusionary laws. Had the Commonwealth not excluded Aboriginal natives of Australia in the original 1902 Franchise Act, and not been complicit in removing Aboriginal people whom the states precluded, this might well have happened more than a half-century before.

Extending the exclusion of Aboriginal natives

The passing of the amended Franchise Act 1902 that excluded Aboriginal natives from voting was a pivotal episode in Australia’s treatment of its indigenous people. That legislation lumped Aboriginal natives of Australia together with other aboriginal natives of Asia, Africa and the Pacific Islands. New Zealand Maoris were exempted to allow for New Zealand’s possibly joining an Australasian federation that would require allowing Maori rights that were already well established. The Franchise Act set the paradigm for exclusion of Aboriginal people that was mirrored in restricting social welfare rights and entitlements.

Australia was an early twentieth-century pioneer and world leader in providing social welfare to people in need. Invalid and old-age pensions were legislated in 1908, and a maternity allowance in 1912. Both the Invalid and Old-Age Pensions Act 1908 and the Maternity Allowance Act 1912 excluded “aboriginal natives of Australia” from receiving such benefits. The pretext was that such people would be receiving alternative state aid under the various state and territory Aboriginal protectorate regimes, but these were hardly comparable. A diligent bureaucracy under ministerial authority enforced the exclusion with callous unconcern. For example, in 1938 the Eastern Suburbs District Council of the Returned Servicemen’s Association of New South Wales made representation through its local member, E.J. Harrison, that the Maternity Allowance Act be amended to give Aboriginal mothers married to AIF veterans the maternity allowance. The request was handled at the highest level of the bureaucracy with the Commissioner of Maternity Allowances advising the minister that such amendment would be undesirable because of its knock-on effect:

If the laws were so amended it would be difficult to withstand requests for a similar concession to all other aboriginal mothers who are at present debarred under the Act. Moreover, the granting of the request would, it is thought, soon be followed by demands for similar concessions to aborigines under the Invalid and Old-age Pensions Act.[17]

The government minister accepted that advice and the exclusion of Aboriginal mothers, invalids and aged people continued.

The 1940s saw an expansion of the welfare state during Labor’s “golden years” of government under prime ministers Curtin and Chifley. By this time international pressure was forcing Australian governments not to exclude “aboriginal natives” of Asian countries such as India. However, new Commonwealth legislation continued to exclude Aboriginal natives of Australia. The Child Endowment Act 1941 barred payment of endowment to Aboriginal natives of Australia who were dependent on Commonwealth or state support. The Unemployment and Sickness Benefits Act 1944 denied benefits to Aboriginal natives of Australia. By 1947 the Social Services Consolidation Act had dropped the exclusion of Aboriginal natives from anywhere else but retained the restriction of Aboriginal natives of Australia.

This continuing exclusion of Aboriginal natives of Australia from social and welfare rights and entitlements is surely shocking. To say the least it cannot be squared with Windschuttle’s grand claim that Aboriginal people were treated as citizens with the same political rights as everyone else. Other areas such as freedom of movement show a comparable harsh regime of discrimination and government control. The Northern Territory, under Commonwealth administration from 1911, has one of the worst records, with the Chief Protector enabled under the Aboriginals Ordinance 1918 “at any time to undertake the care, custody, or control of any aboriginal or half-caste, if, in his opinion it is necessary and desirable in the interests of the aboriginal or half-caste for him to do so”.[18] The Protector could move any Aboriginal person from one district to another, keep anyone on a reserve, remove camps from the vicinity of towns, control the care, custody and education of children of Aborigines and half-castes, and send to and detain any such child in an Aboriginal institution or industrial school. One consequence was the wholesale removal of children from Aboriginal mothers and their placement in institutions—the saga of the “Stolen Generation”.

*******

Windschuttle concludes his response with the claim that the case he has argued remains unaffected by my critique. He began with the claim that my review was “selective, freighted with pre-conception and laughably at odds with fact” and “slipshod scholarship”. The reader can decide where the truth lies.

_______________________________

Keith Windschuttle responds:

As Brian Galligan knows, my principal targets in this debate are those legal academics like Megan Davis and George Williams, and the authors of the report by Julia Gillard’s “expert panel” on the constitutional recognition of Aboriginal people, who make the false and offensive claim that the Australian Constitution was a racist document. Davis claims the Constitution denied all Aboriginal people the vote and so they were “cast out of the polity”. Her co-author Williams claims the authors of the Constitution saw “no place” for Aboriginal and Torres Strait Islander peoples in the new nation. “One of the first acts of the new parliament,” he says, “was to exclude Aboriginal peoples from the franchise.”

As I noted in my original reply to Galligan, he agrees with me that the Australian Constitution was not a racist document. But rather than direct any of his critique at Davis, Williams and Co, he seeks to demolish my case by arguing that, while I am partly right about constitutional principle, I am completely wrong about electoral practice. This is, he says, because Aboriginal voting rights were cast aside by post-Federation election laws and election administration by Commonwealth bureaucrats. Hence, I am wrong to censure those who claim Aboriginal people were “cast out of the polity”.

In both The Break-up of Australia and in my original reply to Galligan, I offered a variety of evidence that the principles enshrined in Section 41 of the Constitution and in the Commonwealth Franchise Act of 1902, were matched by electoral practice. I produced observations by parliamentarians in colonial debates in the 1890s and Commonwealth debates in the 1900s, including leaders of the Barton government and the Labor Party in both the House of Representatives and the Senate, who acknowledged Aboriginal people had the vote in both the former colonies and the new Commonwealth. I discussed campaigns by both left and right-wing political movements outside Parliament to win over Aboriginal electors in the 1890s and 1900s. And, in what I regarded as the best empirical evidence for my case, I discussed local historical studies of specific Aboriginal communities in New South Wales, South Australia and Tasmania that provided tallies of how many members of these communities were listed on electoral rolls both before 1901 and for up to sixty years after.

Galligan replies that I have failed to make a distinction between “full-blood” and “half-caste” Aborigines. He says those of “full-blood” were officially defined by the Barton government’s Attorney-General, Alfred Deakin, as “Aboriginal natives of Australia” who were denied the right to vote by Commonwealth electoral bureaucrats until 1961. But “half-caste” people were not regarded as Aboriginal natives of Australia and hence were permitted to vote. This is why their names can be found on electoral rolls in the first half of the twentieth century.

The evidence Galligan offers for his case is feeble. He quotes a letter written in 1901 by Alfred Deakin, the first Attorney-General, who was discussing not electoral rights but who should be counted in determining the number of representatives each state could send to the Commonwealth Parliament. Galligan says Deakin excluded “full-blood” people from the count but included “half-castes”. At the time, Deakin’s approach was understandable because in 1901 the states of Queensland and Western Australia each estimated they had between 10,000 and 20,000 Aborigines of full descent living in unexplored country in their north, beyond any contact with white society. Politicians in the south suspected these estimates were grossly exaggerated, and proper counts in the 1920s and 1930s confirmed their suspicions. But Deakin’s 1901 distinction between “full-blood” and “half-caste” was never written into electoral law. The Barton government did not commit itself to any such division in the Commonwealth Franchise Act of 1902—those terms are never used. The Act followed Section 41 of the Constitution and accepted whatever definitions the various states had used for voting eligibility up to that time, and none of them distinguished between “full-blood” and “half-caste” either.

Galligan goes on to claim that after 1905 the Commonwealth Attorney-General’s department replaced the “full-blood/half-caste” distinction with “an extension” of Deakin’s definition. According to an edict of the department’s secretary, Robert Garran, “all persons in whom the aboriginal blood preponderates are disqualified”. Galligan says this definition of eligibility was accepted and subsequently applied throughout the Commonwealth bureaucracy until 1961.

This claim by Galligan completely overlooks an inconvenient truth. Under Section 51(xxvi) of the Constitution, the Commonwealth was specifically excluded from any power to decide policy for Aboriginal people. It only got that power after the amendment of 1967. Until then, matters of Aboriginal affairs remained in the hands of the states, and most state Aboriginal Protection Boards guarded their own territories jealously, especially in the crucial definition of who qualified as an Aborigine. This was an important matter for the boards and their state governments because their own funding allocations for Aboriginal housing, education and welfare depended on it.

In the example I gave in my first reply to Galligan of Cumeroogunga Aboriginal Station in New South Wales, most of the adult inhabitants were on the electoral roll and entitled to vote from Federation onwards. We can be confident they were all officially recognised as Aborigines according to the definition used by the state Aborigines Protection Board at the time. They were not defined as “half-castes”. If they were not thought to be true Aborigines they would not have been permitted by the station manager to live there. Moreover, local station managers, not Commonwealth bureaucrats, were responsible for distributing electoral enrolment forms and for filling them out for those who were illiterate. As I reported in my earlier piece, at Cumeroogunga a total of ninety-eight Aboriginal people (fifty men and forty-eight women) were listed on the Commonwealth electoral rolls in 1903 for the Division of Riverina (Moama polling place), while thirty-nine men and forty-two women were enrolled there in 1906. From then until 1949, the station’s Aboriginal voters ranged between sixty and eighty people. This example alone is sufficient to disprove the claim by academics that all Aborigines were denied the vote at Federation. Moreover, if they had the vote at Cumeroogunga, they probably had it at most other Aboriginal stations in New South Wales too. Only research can tell.

So let me give another example that I have investigated in the past month. The Erambie Aboriginal Station, also known as the Erambie Mission, was established in 1924 on the western side of the township of Cowra, where it became what its historian, Peter Read, calls the “spiritual homeland” of a major grouping of the Wiradjuri people. In his book Down There with Me on the Cowra Mission (1984), Read writes: “The nucleus of each [Wiradjuri] community consisted of a small number of families long associated with the district, which at Cowra were 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 thirty-four members of these and other Erambie Aboriginal families on the electoral rolls, twenty-three of them men and eleven women. As I said in my earlier reply to Galligan, the names of the women are there because the Commonwealth Franchise Act of 1902 gave the vote to all Australian women, including Aborigines, which disproves another of his interpretations of that Act. Here are the names and addresses I found:

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. Addresses 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: Alfred Bamblett, Cameron Bamblett, James Bamblett, Kathleen Bamblett, Rebecca Hazel Bamblett. Addresses given: West Cowra, “Aboriginal Station”.

In my article in Quadrant’s March edition, I addressed most of the other points in Galligan’s reply here, and he has not provided any good reason to change my views now. Moreover, his attempt to introduce into this discussion the matter of welfare payments to Aborigines is just as unimpressive. While it is true that Aborigines were initially unentitled to Commonwealth payments for child endowment, unemployment and sickness benefits in the 1940s, this was not due to what Galligan calls the shocking racism of the day. It was because, until the 1967 amendment, the Constitution did not allow the Commonwealth to make policy for Aborigines, and also because state governments had long had welfare programs of their own for Aboriginal people. I would have thought a professor of politics at an Australian university would know this. As I noted in my 2009 book on the Stolen Generations, The Fabrication of Aboriginal History, Volume 3, in New South Wales where government budgets were more generous than elsewhere, Aboriginal families on several government stations from the 1920s to the 1940s had better housing, better water supply, better sewerage and better social amenities, such as local schools, recreation halls, electricity and telephone connections, than average white working-class families in the outer suburbs of Sydney. In 1930, a New South Wales Government Tourist Bureau brochure listed the Aboriginal settlement at La Perouse in Sydney as one of its recommended visiting spots for overseas tourists.

It is also disappointing to see that Galligan is still unwilling to admit that Richard O’Connor, Sir John Downer and Edmund Barton had definitive roles in the electoral politics of their day. Galligan tries to dismiss my citations from them as “selective massaging of a minority view”. But these men constituted the three-man Drafting Committee for the Australian Constitution Bill responsible for rewriting the original draft of the Constitution in the light of amendments made during the convention sessions in 1897 and 1898. They were also the critical definers of the objectives of the Barton government’s Commonwealth Franchise Bill of 1902. As leaders of both houses of Parliament said when introducing the Bill, the government’s intention was to give every Aboriginal adult in Australia a vote. But due to the recalcitrance of the Labor Party and its supporters, the government had to settle for a compromise which, while fully enfranchising Aboriginal men and women in New South Wales, Victoria, South Australia and Tasmania, left the Aborigines of Queensland and Western Australia with a £100 property qualification. Only someone with a seriously jaundiced political agenda would describe this slightly-less-than-perfect outcome as a racist determination to cast Aborigines out of the polity.

Moreover, the document Galligan calls “the most comprehensive source of what was happening in practice around Australia”, the report of the 1961 Select Committee of the House of Representatives, actually agrees with my interpretation, not his. It described New South Wales as a state “where the Aboriginal people have for many years been fully entitled to become enrolled and vote at state elections and, ipso facto, Commonwealth elections” (emphasis added). And in a paragraph from the same report, which Galligan thought best not to divulge to his readers, the 1961 committee added:

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.

This outcome was, to a large extent, what the founding fathers intended and, despite Galligan’s dissembling, it is how electoral officials in most states interpreted their responsibilities for at least the first six decades after Federation. The High Court took a different view of Section 41 in 1983 but in a case that was not about the election rights of Aborigines and, as I said in my March article, a High Court decision can not (please note the “not”, Mr Galligan) rewrite history to change what people thought and did over the previous eight decades.

As for Galligan’s final flourish where he claims the consequence of the Northern Territory’s Aboriginal Ordinance of 1918 was “the wholesale removal of children from Aboriginal mothers and their placement in institutions—the saga of the Stolen Generations”, this has as little credibility as his other claims here. Since the Human Rights Commission’s 1997 report, Bringing Them Home, there has been a long line-up of human rights lawyers, legal aid services, legal academics, left-wing activists and media pundits urging Aboriginal people to go to the courts to seek compensation for being wrongfully removed from their parents by the state. Yet in all this time only one applicant has been successful before a court, and that was in South Australia. In the Northern Territory, the test case Cubillo and Gunner v Commonwealth failed in the Federal Court, with Justice O’Loughlin finding the so-called “removal policy” was “beneficial and protectionist”. In the other major Northern Territory case, Kruger v Commonwealth, in which lawyers for Aborigines claimed the Aboriginal Ordinance of 1918 sanctioned genocide, the full bench of the High Court was not impressed. The case failed, with five of the six judges specifically dismissing the claim of genocide, and with Justice Dawson observing: “The powers conferred by the 1918 Ordinance were required to be exercised in the best interests of the Aboriginals concerned and of the Aboriginal population generally.”

In short, Galligan’s claims about the Stolen Generations are just as badly informed as his views about the history of Aboriginal voting rights.