The Blackening of Australia’s Past

In December, 1865, by virtue of the Thirteenth Amendment to its Constitution, the “peculiar institution” of slavery was abolished in the United States of America – a nation founded in 1776 on the premise that “all men are created equal”. The Jim Crow era institutionalising racial segregation began about ten years later and was further bolstered by the Supreme Court’s 1896 decision in Plessy v. Fergurson which enshrined “separate but equal” as the guiding principle of US race laws.

Meanwhile, in ‘racist’ Australia, Aboriginal persons, who had been accorded the status of British subjects from as early as 1788, were granted the right to vote in South Australia from 1856, in Victoria from 1857, New South Wales from 1858, and Tasmania from 1895.  In South Australia all women, including Aboriginal women, also attained the franchise.

What prompted this train of thought was the reply I recently received from the Australian Electoral Commission to representations I had made concerning inaccuracies on their website about indigenous voting rights. Below is the text of my letter:

Dear Commissioner,
In August 2017, I wrote to you pointing out some errors or misrepresentations on the AEC website regarding Aboriginal voting rights.  You replied that the article in question was under review and the points I made would be taken under consideration.

I note that the article in question has still not been re-posted to the site but there is an existing item, entitled, Electoral Milestones for Indigenous Australians, that contains the following two assertions: 

1901 Commonwealth Constitution became operative – Section 41 was interpreted to deny the vote to all Indigenous people, except those on state rolls.

This is misleading.  Who interpreted the Constitution in this way?  The High Court is the only authority empowered to give legally binding interpretations of the Constitution and, to my knowledge, it has never issued such an interpretation.  In which case, the statement is meaningless.  And as I will explain below, there is, in any case, no basis for such an interpretation.   In fact, the significance of the Constitution becoming operative in 1902, as it pertains to Aboriginal rights, could more fairly be described as enshrining, at the Federal level, those voting rights that Aborigines already had at State level – including the right of Aboriginal women in South Australia to vote.

1902   The first Commonwealth Parliament passed the Commonwealth Franchise Act of 1902, granting the vote to both men and women. It did however; specifically exclude ‘any aboriginal native of Australia, Asia, Africa or the Islands of the Pacific, except New Zealand’ from Commonwealth franchise unless already enrolled in a state.

Have you looked at Section 39 of the Commonwealth Franchise Act of 1902?  Below is the text of the relevant Section:

(5) 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 or retained on any roll or to vote at any Senate election or House of Representatives election unless so entitled under Section forty-one of the Constitution.

There is no ‘specific exclusion’ of people not already on the roll.  This claim is patently false.  Had such an exclusion that you claim been included, the Act would have been in breach of the Constitution.

For your information, here is the text of Section 41 of the Constitution:

“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 is clear and unambiguous. The words ‘or acquires’ are probative.  It is true that Section 39 as legislated was designed to deny the vote (at Federal elections) to Aborigines in Queensland and Western Australia but this did not, in any way, affect the rights of those in NSW, Victoria, South Australia or Tasmania who already had the vote in 1901 or acquired it, in those states, subsequent to that date, by attaining the age of 21.  And ‘acquires a right’ clearly envisages the possibility of Queensland and Western Australia, at some point, extending the right to vote to Aborigines.

My purpose in writing to you is not to deny that Aborigines were discriminated against and often foully mistreated but to make the point that these offences occurred in spite of the Constitution rather than because of it.  The often heard claim that Aborigines were excluded from the Constitution is just not true and it is remiss of a government agency to disseminate information that gives credence to such a myth.  Our Constitution is an admirable document and deserves to be defended, not vilified.

I respectfully request that these two entries be corrected.

To my surprise, I had something of a win.  The AEC response advised:

“Following receipt of your letter the Milestone entries for 1901 and 1902 have been reviewed and will be amended.” 

The amended entries now read (emphasis added):

1901   Commonwealth Constitution came into effect, giving the newly-created Commonwealth Parliament the authority to pass federal voting laws. Section 41 prohibited the Commonwealth Parliament from denying federal voting rights to any individual who, at the time of the Commonwealth Parliament’s first law on federal voting (passed the following year), was entitled to vote in a state election. 

1902  The Commonwealth Parliament passed its first law on federal voting (the Commonwealth Franchise Act 1902), granting men and women in all states the right to vote in federal elections. The Act did, however, specifically deny federal voting rights to every ‘aboriginal native’ of Australia, Asia, Africa, or the Islands of the Pacific (except New Zealand) who, at the time of the Act, did not already have the right to vote in state elections.

It was only a partial victory, however, as the underlined words above attest.

These words suggest that only those Aborigines alive and eligible to vote at the date of the Act were entitled to vote.  This would appear to ignore the provision of Section 41 of the Constitution which prevented any law of the Commonwealth denying the vote to any person “who has or acquires” the right to vote in a state election.  This version of history is based on the contention that Section 41 was only intended to cover the period from January 1, 1901, until the passage of the Commonwealth Electoral Act.   This view was countenanced by some authorities at the time but during this period, and immediately afterwards, it was never tested in the High Court.

The AEC justifies its position thus:

The AEC will be making these amendments to more closely reflect the High Court of Australia’s interpretation of Section 41 of the Constitution in the decision of R vs Pearson; ex parte Sipka (1983). 

Why, the more astute among you may well ask, was the High Court asked to rule on Aboriginal voting rights in 1983, twenty one years after the right of all Aboriginals to vote in Commonwealth elections was codified in the Commonwealth Electoral Act of 1962?

Well it wasn’t.  R vs Pearson had nothing whatsoever to do with Aboriginal voting rights.  It arose because a number of voters enrolled to vote in their state election were denied a vote in the snap poll called in 1983 by Malcolm Fraser because they had not enrolled to vote in the federal election by the time the rolls closed (the day the writs were issued).  They claimed that Section 41 protected their right to a vote at the 1983 Federal election. The High Court ruled otherwise, based on its interpretation that Section 41 was a transitional provision which would expire at the time a universal Commonwealth franchise was established by Act of Parliament – as it transpired, the Electoral Act of 1902. (Interestingly, Lionel Murphy dissented in this opinion.)

So R v Pearson et al had nothing whatsoever to do with Aboriginal voting rights, even though, retrospectively, the decision supports the contention of activists that all Aborigines were denied the vote by the 1902 Act.   This interpretation had no de jure standing in 1902, but did it have de facto standing?  I will return to this point later, but first let me indulge myself in an examination of R v Pearson, recognising, of course, that my thoughts are purely academic.  The decision has been made and there is no, now, imperative for it to be challenged.

In my view, the High Court could have disallowed the claim of Pearson et al by ruling that, notwithstanding the provisions of Section 41, the Commonwealth had the right (as indeed do the states) to make regulations for the proper  conduct of elections, which would necessarily involve a constraint on the ability of someone to vote.  They could have interpreted the ‘right to vote’ as the ‘right to enrol to vote’ which is necessarily constrained, as all or most rights are, by administrative imperatives such as, in this case, the need to prepare properly audited electoral rolls.

The claimants argued that Section 41 could not be seen as a transitional provision because it did not include the words ‘until Parliament otherwise provides’ as occurred in other transitional provisions.  However, the Commonwealth argued that Section 41 was linked to Sections 8 and 30, that established the qualification for electors of the Senate and House of Representatives respectively, and therefore had to be interpreted in conjunction with these two sections.  Section 30 says:

Until the Parliament otherwise provides, the qualification of electors for the members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall only vote once.

Section 8 has different wording but the same effect. There would seem to be some justification to the notion that Parliament, not the Constitution, would have the last word on deciding who can or cannot vote.

However, I would argue that ‘qualification’ of electors falls under the scope of administrative regulation.  For example, the Commonwealth may choose to disqualify an elector, with a constitutional right to vote, who had failed to enrol in time.  This reading would support my earlier contention. The learned judges also supported their decision on the basis that:

… the power conferred upon the Parliament to legislate for a uniform franchise would be destroyed. A Parliament of a State would be empowered to give the federal franchise to those whom the Commonwealth Parliament has excluded or disqualified, for example, property owners who do not live in the State, aliens, prohibited immigrants or convicts under sentence for more serious offences.

This may be true but could it not simply have been an example of poor drafting?  At the time the Constitution was written, it would not have been foreseen that power would gradually accrete to the Commonwealth at the expense of the states to the extent it has and creating the tension between the two entities that now exists.   At the time of Federation, it was intended that the Commonwealth would assume responsibility for defence, foreign affairs and trade only.  That was the justification for Federation and, had it been otherwise, it is unlikely it would have come about.  Therefore, it is difficult to see how the drafters of the Constitution would have envisaged a situation where a state would seek to corrupt the Commonwealth franchise.

It seems to me that the High Court’s decision in R v Pearson at al was a convenient exercise in damage control.

Be that as it may, let me return to the substantive issue.  As noted earlier, R vs Pearson is academic as far as Aboriginal voting rights are concerned, except that it allows activists to claim post hoc that Aborigines in NSW, Victoria, South Australia and Tasmania were denied the vote by both the Constitution and the Australian Parliament from 1902.

But is that the case?  As Keith Windschuttle makes clear in his excellent book – everyone should read it – The Breakup of Australia, the case that, from 1902, only Aborigines in Queensland and Western Australia were excluded from Commonwealth elections is unequivocal.  Moreover, in a comprehensive article published in this forum in 2017, Keith provides copious anecdotal evidence of Aboriginals who came of age after 1902 voting in Commonwealth elections. As just one example, he points out that the 1962 report of the House of Representative Select Committee on Voting Rights for Aborigines noted, inter alia, that:

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.

But the killer blow to the contention that Section 41 was only a transitional provision that allowed the legislators in 1902 to deny Aborigines the vote is that, as noted above, the wording of Section 39 of the Act is:

(5) 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 or retained on any roll or to vote at any Senate election or House of Representatives election unless so entitled under section forty-one of the Constitution.

If the legislators believed Section 41 was only a transitional provision that would expire upon the passing of the Electoral Act why would they have included the bolded words?

So why is this important?  It seems a rather abstruse issue upon which to spend my time, when I could be currying favour with my wife by cleaning out the garage (the must-do task du jour).  Well it’s important because this issue is just one motif in a rich tapestry of grievance that holds that indigenous disadvantage today has its genesis in the fact that, at the time of Federation, Aborigines were excluded from the Constitution.

Aboriginal votes are solicited in 1896 at the Arltunga Reserve in the North Territory. (Photo: Trove.com.au)

Another meme is that Aborigines did not become citizens until after the 1967 referendum.  On a recent trip to the Red Centre we were informed by our very personable, but somewhat earnest, guide, that by 1957, Albert Namatjira was making so much money that the government decided he needed to be taxed and the only way they could do that was by making him an honorary Australian citizen.  I, and some other members of our group, had already had occasion to disabuse our guide of many of his notions about climate change so, this time, I forbore to embarrass him in public.   What I refrained from saying was that by 1957, Namatijra along with every other Aborigine was already an Australian citizen and had been since 1949 when the Nationality and Citizenship Act of 1948 came into force.

For the record, within the Northern Territory, Aborigines were deemed wards of the state from 1953 to 1964 – a total of only eleven years.  In 1957, the Territory administration, in recognition of his stature (nothing to do with tax), removed that restriction from Albert Namatjira, which allowed him to vote, buy land and buy alcohol.

There are many other fables of this nature all designed to obscure the true picture – that whilst there was racism on both an individual and a government level, the overriding ethos of the most populous states and the Commonwealth was that Aborigines were part and parcel of our nation, imbued with the same rights as anyone else. Whatever disadvantages (real and imagined) contemporary Aborigines suffer, they were not caused by any deficiencies in the Constitution of 1901 and they will not be remedied by tinkering with the Constitution today.

America’s history of judicially endorsed racial discrimination is horrific while Australia’s, by comparison, is exemplary. Why, one might ask, did the AEC rewrite our past? It is almost as if there is an agenda at work — an agenda to promote the cult of victimhood and stain our national decency with the one-size-fits-all cliches of racial oppression.

It is important that conservatives fight back against such misinformation, as it is so easily accepted on the part of many well-intentioned but credulous non-indigenous citizen.

That’s why I write these pieces.  At this point, I must acknowledge the contribution that Keith Windschuttle has made to my understanding of this topic.  My intention is not to plagiarize his work but to attempt to distil his extensive knowledge into cogent rebuttal arguments that readers can use to counter these myths when they arise in the course of their own lives.