The Intent of the Constitution’s Authors

Part II of my response to Brian Galligan’s error-prone review of my book The Break-up of Australia

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.[1]

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.[2]

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.

Part I: Fabricating Disenfranchised Aborigines

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.[3]

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.[4]

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.[5]

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.[6] 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.[7]

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 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.[8]

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”, but 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.