Ann Curthoys, “Settler Self-Government versus Aboriginal Rights, 1883 – 2001: The Shocking History of Section 70 of the Western Australian Constitution”

Abstract

This essay describes the failed attempt by the British government to retain control over Aboriginal policy even while establishing self-government for the colony of Western Australia. The British made the attempt through a clause (Section 70) in the colony’s 1889 Constitution, which provided that £5000, or one per cent of the annual revenue of the colony when it exceeded £500,000, be set aside annually for the welfare of Aboriginal people. In addition, the British-appointed and controlled Governor, rather than the colonial government, would manage Aboriginal policy. The settlers hated the clause and in 1897 succeeded in persuading the British government to repeal it. Yet Section 70 was not forgotten, a legal challenge in the Australian High Court to its repeal failing as recently as 2001. The story of Section 70 provides a window for viewing the conflicts and collusions between imperial authorities and their settler colonies on questions of Aboriginal policy.

coat of arms of Australia

Figure 1: Coat of Arms of Australia

This essay tells the story of the rise, fall, and aftermath of Section 70, a highly unusual provision within the Western Australian constitution of 1890. In insisting, against settler wishes, on the inclusion of this section, the British government attempted to retain control over Aboriginal policy even while granting self-government to this sixth and last Australian colony. It had done this with no other Australian colony, all of which had gained self-government decades earlier, in the 1850s. Section 70 provided that the British-appointed Governor, and not the newly self-governing local legislature, would control Aboriginal policy and the Aborigines Protection Board that managed it, and that one per cent of the colony’s revenue would be set aside for Aboriginal welfare. Several questions immediately arise. What is the significance of this story for British history? Why did the British government seek to maintain control over this particular policy domain while effectively devolving the rest of domestic matters to the colony? How did the section operate during its brief period of existence, and why was it repealed twice, first in 1897 and then again in 1905? How has it been remembered since? Finally, why did another legal challenge to its repeal finally fail in the Australian High Court as recently as 2001?

Section 70’s beginnings

From the late 1840s, the British government was keen to grant self-government to colonies with substantial free British populations. The purpose was partly to guarantee their continued allegiance and avert any repeat of the loss of the American colonies 70 years earlier, and partly to save money, as self-government involved the transfer of many administrative costs and responsibilities from Britain to the colonies themselves. As Britain granted new constitutions over the next decade to one colony after another in British North America, southern Africa, and Australia, its largest and least ‘settled’ Australian colony, Western Australia, missed out. The British thought it as yet unfit for self-government, given its tiny settler population (only 5,622 in 1848), inability to attract free British migration, and newly acquired role as the only colony still willing to receive convict labour from Britain.[1] It took several decades for colonial politicians to seek self-government for WA and for British imperial authorities to countenance its possibility.

The first signs of change came in 1870, two years after convict transportation to the colony ended, and with the settler population now over 25,000.[2] At this point, Britain granted the colony increased representative government, with a part nominated and part elected Legislative Council. The political elites and powerful economic interests of the day, however, took another decade or more to develop a serious interest in a more thorough form of self-government. They knew from the experience of their counterparts to the east that self-government tended to bring with it, and quite rapidly too, increased democracy in the form of a wider franchise and thus new constraints on the power of those with wealth and property. By the 1880s, however, with the colony at last growing in population, and expanding economically on the basis of exports of wool and pearl products, employers were seeking a greater government role in raising loans for infrastructure projects such as railways, ports, and the telegraph. The Legislative Council realised that responsible government would give it more control over public finances and the sale and lease of land (Smith and Rafferty 39). Seeking greater independence in matters of economic management and control of land, the political elites thus began to press for self-government actively for the first time.

In the ensuing negotiations between the colony’s Legislative Council and the British authorities, the question of the treatment of Aboriginal labour was one of a number of sources of tension (others were land policy and the question of whether the huge colony, twenty times the size of England, should be split into two). Especially in the north, the colony was dependent on Aboriginal labour, and pearlers and pastoralists employed brutal systems of coercion. Those who resisted work or who absconded were often beaten or “put on the chain” (chained together, often by the neck) and walked long distances under police escort to the nearest magistrate; many were sentenced to serve terms in prison, including to Rottnest Island near Perth, literally thousands of miles away from their own land and community. Governor Robinson, who had previously served in the West Indies and elsewhere, agreed in a dispatch to the Secretary of State in 1881 that recent government-commissioned reports had disclosed “a state of things little short of slavery.”[3]

For Frederick Napier Broome, governor from June 1883, the situation was compounded by the appalling treatment of Aboriginal prisoners, a matter that had attracted public debate during the previous year. Broome, who had served as a colonial official in both Natal and Mauritius, set out to deal with both the labour and prison problems, and accordingly appointed a committee of inquiry into Aboriginal matters in September 1883. A year later, the committee recommended, as Broome hoped, closer government control over the treatment of Aboriginal people.[4] With a Legislative Council hostile to the idea of Aboriginal protection, however, and his attention diverted by other matters (such as his time-consuming and bitter conflict with the colony’s Chief Justice, Alexander Onslow), Broome took no action.

Then, late in 1885, more than a year after the committee had presented its report, the actions of a missionary named John Gribble focussed public attention on Aboriginal matters in a new and dramatic way (Reynolds, 138-158). A Church of England missionary with experience in both Victoria and New South Wales who had recently visited London and been influenced by evangelical public debate there on Aboriginal and related matters, Gribble took up his post in the north of the colony from September 1885. Appalled by what he saw, Gribble soon publicised widely, in letters and reports later brought together in a booklet, Dark Deeds in a Sunny Land (1886), the shocking situation he had witnessed on the pastoral stations, of forced labour, beatings, imprisonment, and sexual exploitation. The settlers of the northern districts, and their southern counterparts and supporters, were outraged at being so openly and widely criticised. The ensuing public debates were so intense that the Church of England turned against Gribble and closed the mission. After making his own inquiries, however, Governor Broome found that there was evidence to support Gribble’s claims (Green 448; Reynolds 159-77). Meanwhile, the London-based Aborigines Protection Society had brought the matter to the attention of the Colonial Office, which in its turn pressed Broome to take action. In response, on 16 August 1886, Broome finally introduced to the Legislative Council an Aborigines Protection Bill based on the recommendations made by his Committee of Inquiry two years earlier. It provided for the establishment of an Aboriginal Protection Board to manage and oversee Aboriginal matters, the appointment of a series of local officials to act as protectors, and for closer regulation of labour relations. Despite pastoralist opposition, and perhaps conscious of the view of the Colonial Office, the Legislative Council passed the Bill two weeks later.[5]

The new policy was barely in place, however, when matters of Aboriginal policy intersected with the growing discussion of what form self-government should take in WA. The difficulty the advocates of self-government now faced was that the imperial government had become more cautious in granting self-government than it had been in the 1850s. In the intervening three decades, Britain had learnt some of the disadvantages of colonial self-government in the arena of settler-indigenous relations. As Norman Etherington points out, settler government policies within the empire had resulted, for example, in a restrictive Native Law provoking resistance in Natal, a costly war against Maori in New Zealand, uprisings in Jamaica against the labour practices of white sugar planters, and high levels of killing on the frontiers of settlement in Queensland (Etherington). Stories like Gribble’s of the slave-like labour conditions in Western Australia did nothing to enhance British imperial pride and self-image as overseeing a system of moral and honourable colonisation. On the other hand, Britain did not wish to control so directly white settler colonies like Western Australia forever, seeing them as more beneficial to the empire when self-governing and self-supporting.

Therefore, when the Western Australian Legislative Council finally took up the cause of self-government, it found it would need to negotiate with a potentially willing but also wary Colonial Office, and beyond it, British parliament. The main negotiator turned out to be Governor Broome himself, who in mid 1887 publicly declared his support for responsible government, citing increased colonial revenues, growing population, and majority public support. He had himself experienced the failings of the existing system, described by his predecessor, Governor Robinson, as “neither flesh, fowl, nor good red-herring,” since a governor’s senior officials, constituting the executive arm of government, lacked the confidence of the Legislative Council, which in turn had sufficient powers to block legislation (Crowley). Now, wanting responsible government for Western Australia but also sharing British concerns about what it might mean for Aboriginal policy, Broome recommended the Colonial Office make special arrangements for Aboriginal protection in the Western Australian constitution. Funding of the newly constituted Aborigines Protection Board, he suggested, could come from reserving £5000 annually from colonial revenue, a system he knew from his service two decades earlier in the colony of Natal (Curthoys and Martens 128). The British authorities agreed, and accordingly the Constitution Bill included a clause eventually known as Section 70, which embodied the idea of reserving funds for Aboriginal welfare and keeping the Board directly under the Governor’s control rather than subject to parliamentary scrutiny. In fact, Section 70 went further, providing that when the colony’s annual revenue exceeded £500,000, the amount reserved for Aboriginal welfare would rise to one per cent of that revenue.[6]

The settlers disliked the clause, as they wanted to control Aboriginal labour and systems of punishment in their own way and did not want significant funds diverted to supporting Aboriginal people. They had to accept it, however, as the price of self-government. After considerable dispute and delay, the British parliament finally passed the Bill granting self-government on 25 July 1890.

Section 70’s first life, 1890-1905

For several years, the Aborigines Protection Board operated under the authority of the Governor, funded by an annual grant of £5000 until 1893, after which time it rose each year, reaching £28,000 by 1897 (Hasluck 119). This near sixfold increase in just four years indicates how rapid the increase was in the colony’s wealth, a result primarily of gold discoveries. The Board’s tasks were similar to those in other British colonies at this time – to distribute rations, clothing, blankets and medicine, to manage any lands set aside for Aboriginal use, and to exercise “general supervision and care” over matters concerning Aboriginal people (Biskup, 24). It also oversaw the appointment of ‘protectors,’ officials whose role was to manage Aboriginal-settler relations on the ground. In practice, since the role was an honorary one, protectors were often magistrates, police officers, and justices of the peace whose interests closely resembled those of the settlers. The Board did attempt to exert some control over protectors by appointing travelling inspectors, but the vast distances made it difficult.

Despite its funding, working alongside an uncooperative colonial government made it difficult for the Board to carry out its duties. During the 1890s, as pastoral expansion and Aboriginal employment grew rapidly, colonial governments adopted increasingly harsh measures to suppress Aboriginal resistance and coerce Aboriginal people to work by returning absconders to pastoral stations. The Offenders Act of 1892, for example, increased the use of summary trials for Aboriginal offenders and reintroduced government-sanctioned flogging, abandoned in 1883, as a punishment specifically for Aboriginal men.[7] Related agencies, such as the police, were under direct government control and enforced its repressive and inhumane regime (Johnston 326-7; Biskup 25).

The newly responsible colonial government hated Section 70 and was determined to have it removed from the colony’s constitution. The section meant not only the sequestering of one per cent of the colony’s revenue for the use of the Aborigines Protection Board, but, with its program of ‘protection,’ however weakly implemented, the Board stood in the way of the government’s program of asserting complete settler dominance and ensuring the exploitation of Aboriginal labour. Led by the Premier, John Forrest, a locally born man of Scottish parents, the colonial government passed a Bill in 1894 to remove Section 70, and asked Joseph Chamberlain as Secretary of State to ensure that it received Royal assent. Chamberlain was at first cautious but by 1897 had come to support the idea; by this time, however, more than two years had passed and the Bill was now considered stale. The colonial parliament immediately obliged by passing a new Bill in November 1897 for the repeal of Section 70, and within a few months the requested Royal assent was given (Churches 6-7). Immediately the WA government abolished the Aborigines Protection Board, replacing it with an Aborigines Department under direct government control, and returned the budget for Aboriginal welfare to its 1893 levels, i.e. £5000 (Hasluck 119). The shift from the Board to the Department meant that the quasi-independent protectionist role of the Board was replaced by a poorly funded Department which would carry out the government’s agenda of Aboriginal suppression, control, and exploitation.

The repeal in 1897 prompted some attention in the British press, including in The Times, The Scotsman, and the Manchester Guardian; in the process, the question became important in imperial consciousness. Legal historian Stephen Churches wonders whether Joseph Conrad’s reading in newspapers around this time of Western Australian atrocity stories influenced his key text of colonialism, Heart of Darkness, with its evocation of “the inevitable horrors of colonisation and expropriation” (Churches 13). While this is highly speculative, the timing makes it possible – the flurry of coverage of the treatment of Aboriginal labour in the British press in 1897 occurred only a year before Conrad began writing Heart of Darkness. Conrad, furthermore, was quite familiar with Australia, having lived in Sydney for several months in 1879 and visited the continent several more times in the course of his employment as a ship’s captain in the 1880s. While we do not know how aware Conrad was of the Western Australian scandal, it is clear that the Australian colonies in the 1880s and 1890s were causing British imperial officials, and bodies such as the Aborigines Protection Society, serious concern. Australian colonies’ treatment of Aboriginal people played a part in public debate in Britain on imperial issues. Indeed, concern with Queensland’s record of frontier killing and harsh employment practices had in 1883 underlain British rejection of Queensland’s attempt to annex Papua, then the southern half of New Guinea, and letters continued to appear in British newspapers on Queensland’s record of killing for the next two decades (Bottoms 182, 188).

The character of British concern changed somewhat when the six British colonies in Australia federated to form the new nation of Australia in 1901, which meant Western Australia changed from a British colony to a state within a new Australian nation. Theoretically, Aboriginal policy was now a purely Australian matter, and of no direct concern to Britain. In practice, until the Statute of Westminster of 1931, which instituted full legislative equality between Britain and her Dominions, Australia retained very close links with Britain not only through foreign policy and defence arrangements, but also through its legal system.[8] Events in Australia continued to be seen in Britain as a reflection on the character and honour of the empire as a whole.

This is the context, then, for the most intense British discussion of all on Aboriginal conditions in Western Australia, in the early months of 1905. The year before, the WA Legislative Assembly (in which the rising Labor Party for the first time held the balance of power), prompted by continuing allegations of serious mistreatment of Aboriginal workers in the pastoral industry, had invited Walter Roth, Chief Protector of Aborigines in Queensland, to chair a Royal Commission into the matter. Roth, an Englishman and a trained physician with a strong interest in Aboriginal ethnography, had written an internationally renowned text, Ethnological Studies among North-West Central Queensland Aborigines (1897) that had made his reputation in anthropology. After publication of the book, he had taken on the role of protector of Aborigines in northern Queensland in 1898, becoming Chief Protector for Queensland in 1904.

The Commission’s report, known as the Roth Report, published in January 1905, was damning in its portrayal of a coercive system of labour relations and especially of the denial of justice to Aboriginal people suspected of crimes such as cattle killing, and its depiction of the harsh treatment of Aboriginal prisoners, including the use of neck chains (Haebich 77).  As such, the findings outlined in the report led to much consternation in both Australia and Britain in the early months of 1905. In Western Australia, there was a conflict of opinion between pastoralists and their critics, in the press, in public meetings, and in parliament. One conservative local newspaper in Perth, The Western Mail, defended the pastoralists and portrayed the Aborigines as criminals; to support its view, it carried images of Aboriginal prisoners in neck chains. As Jane Lydon has shown, such images, initially supposed to illustrate criminality, later became iconic representations of Aboriginal ill treatment and still have powerful resonance today (Lydon, Flash of Recognition 48-52). In Britain, too, although it no longer had jurisdiction in the matter, parliament discussed the appalling state of affairs the report had disclosed. In the House of Commons, the Roth Report was mentioned in the context of discussion of other bills; in the House of Lords, the Archbishop of Canterbury drew attention to it, ostensibly with a view to seeking further information, but most likely to create an avenue for the expression of British disgust (Lydon, “H.G. Wells and a Shared Humanity”, 78-83). Imperial pride had been shaken.

The Roth Report had consequences not only for Western Australia’s reputation abroad, but also for Aboriginal policy within Western Australia, and indeed for Section 70 itself. Through the rest of 1905, parliament debated and passed amendments to the 1886 Aborigines Protection Act in an attempt to address some of the issues raised by the Roth Report. Though it failed to implement many of Roth’s proposals, the Act did increase funding and the regulation of labour relations; it also, though, increased the powers of the Chief Protector over Aboriginal people, including a provision for their arrest without warrant if they offended against the provisions of the Act. Its intrusion into private life was extensive; it prohibited, for example, the cohabitation of Aboriginal women and non-Aboriginal men and required government approval for their intermarriage (Biskup 65). As for Section 70, the debates over the Roth report of early 1905 prompted F. Lyon Weiss (a mining expert in Western Australia who had led the colony’s pro-Dreyfus campaign, supported many causes including women’s suffrage, and composed an anthem in 1901 celebrating both Australian federation and the British Empire) to challenge the validity of the 1897 repeal.[9] The proper procedures, he argued, had not been followed in relation to securing royal assent (Johnston 336-7).

As Peter Johnston outlines, Weiss wrote to the Governor and other officials. Unsure that the Governor would forward his query to Britain, he also wrote directly to the Secretary of State for the Colonies, Alfred Lyttelton. To everyone’s surprise, Lyttelton informed the Governor that after investigating the matter his Law Officers agreed the repeal had not been properly conducted in technical terms and was therefore invalid. In response, the WA state parliament again rushed through a Bill repealing Section 70 and abolishing the Board, which had now been out of existence for eight years (Johnston 339; Churches 7-8). British officials were only too willing to assist in ensuring this time that all technical requirements were met, or, as Churches strikingly put it, the mid-nineteenth-century “impulse of philanthropy at the heart of Empire. . . had run its course, and the Home Government now sought only accommodation with the new self-governing colonial oligarchies” (Churches 8).

Section 70’s afterlife, 1905 – 2001

Despite its repeal, the section remained important for another century at least for Aboriginal activists and their supporters, who believed that the one per cent per annum of state (formerly colony) income that from 1897 was no longer allocated for Aboriginal welfare still rightly belonged to Aboriginal people. As WA had become extremely wealthy, and still is owing to its huge deposits of minerals of all kinds, this interpretation of the legal situation involved a very large amount of money.[10] Aboriginal people continued to believe they had been betrayed and robbed. In the 1940s, Don McLeod, a white man who worked closely with Aboriginal people for decades, took up the case. Born and raised in the mining town of Meekatharra in northern WA (his father was a mining manager and executive), McLeod learnt in the early 1940s of the loss of the Section 70 funding. He thought there might be a good legal case that the 1905 repeal was no more valid that that of 1897 (Johnston 343). Well-known Australian novelist and communist, Katharine Susannah Prichard, a friend of McLeod’s, publicised the significance of the loss of Section 70 in July 1944. In the foreword to a pamphlet by Tom Wright, A New Deal for Aborigines?, she pointed out that in the financial year ending on 30 June 1939 government revenue in WA had been almost £11,000,000, one percent of which [£110,000] would have allowed “adequate provision for the dispossessed native race” (Prichard 56-7). Both Prichard’s essay and Tom Wright’s pamphlet were to influence the thinking of McLeod and other Aboriginal supporters in subsequent decades (Davies 34).

McLeod and others drew the attention of the London-based Aborigines Protection Society to the issue in the 1950s, and McLeod was still pursuing the matter in the late 1960s, a particularly significant period in Australian Aboriginal affairs. After a decade of campaigning by Aboriginal activists and their supporters, the Australian Constitution was amended by referendum so that the federal government had, for the first time, jurisdiction in Aboriginal affairs. Federal agencies were established and public spending aimed at enhancing Aboriginal welfare increased. In this context, McLeod wrote to successive federal governments on the question of Section 70 (Johnston 344).  In 1980, at the age of 72, he was a spokesperson for an Aboriginal group at the Noonkanbah Station in the Kimberley region; in the context of seeking repossession of their land, this group made strong reference to Section 70. Influenced by McLeod, law academic Peter Johnston and lawyer Steven Churches addressed some of the legal issues in a paper in 1989, inspiring McLeod to file proceedings in the WA Supreme Court in 1993. When the case eventually came before the High Court of Australia in 1998, Crow Yougarla, an Elder of the Strelley mob that had long worked with McLeod, was the leading plaintiff.

Yougarla eventually lost his case in 2001, the High Court judges ruling unanimously that the colony after 1890 had the power, after all, to amend its constitution without placing the relevant Bills before both houses of the British parliament, contrary to what all involved at the time had assumed (Johnston 16; Genovese 150-1). As Ann Genovese has pointed out, the court treated the matter as one concerning the authority of the Western Australian government under its 1890 constitution, and not as one that concerned the political rights and status of Indigenous people in a settler colony like Western Australia. Section 70, however, lives on in the consciousness of Aboriginal people and their supporters, and as a reminder of how very different Aboriginal-settler relations could have been, had the settlers wanted it so. Historians have also become interested in Section 70 in recent years; it is our task now to make this story better known and to ponder its implications for the present.

Ann Curthoys is an honorary professor at the University of Sydney. She has published widely on aspects of Australian history, and on matters of historical theory and writing. Her books include Freedom Ride: A Freedom Rider Remembers (Allen and Unwin, 2002); (with John Docker) Is History Fiction? (UNSW Press, 2005, rev. edn. 2010); and (with Ann Genovese and Alexander Reilly), Rights and Redemption: History, Law, and Indigenous People (UNSW Press, 2008). She is currently working on a project entitled Indigenous People, the British Empire, and Self-Government for the Australian colonies.

HOW TO CITE THIS BRANCH ENTRY (MLA format)

Curthoys, Ann. “Settler Self-Government versus Aboriginal Rights, 1883 – 2001: The Shocking History of Section 70 of the Western Australian Constitution.” BRANCH: Britain, Representation and Nineteenth-Century History. Ed. Dino Franco Felluga. Extension of Romanticism and Victorianism on the Net. Web. [Here, add your last date of access to BRANCH].

WORKS CITED

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ENDNOTES

[1] WA Census 1848, Historical Census and Colonial Data Archive (1834 – 1901), Australian Data Archive.

[2] Australian Bureau of Statistics, “Population by sex, states and territories, 31 December, 1788 onwards,” Australian Historical Population Statistics, 2006.

[3] Robinson to Sec. of State, 9 March 1881, in Correspondence Relating to the Question of Police Protection to Settlers in Outlying Districts, Promulgation of Pearl Shell Fishery Regulations and Protection of the Aboriginal Natives, WA Legislative Council, Parliamentary Papers, 1881, no. 13, p.5.

[4] Legislative Council of Western Australia, Report of a Commission appointed by his Excellency the Governor to Inquire into the Treatment of Aboriginal Native Prisoners of the Crown in this Colony: And Also into Certain Other Matters Relative to Aboriginal Natives, Votes and Proceedings, Perth: Government Printer, 1884, p.9.

[5] Legislative Council of Western Australia, Parliamentary Debates, No. 47, 1 September 1886, p. 582.

[6] See Broome to Knutsford, 28 May 1888, ‘Correspondence respecting the proposed introduction of responsible government in WA’, 1889, British Parliamentary Papers, London, 1889, p. 36. Here it was called Section 52. It became Section 58 in a later draft and Section 70 in the Act.

[7] An Act to amend “The Aboriginal Offenders Act, 1883″ and to authorise the Whipping of Aboriginal Native Offenders. [Assented to 18th March, 1892.]

[8] Indeed, until 1986 the final court of appeal in certain kinds of cases, in theory at least, was not the Australian High Court but the British Privy Council.

[9]  See West Australian, 19 October 1899, p. 2.

[10] One Australian Broadcasting Corporation news report in 2000 suggested a figure of $A600 million. “Old pledge to Aborigines could cost WA millions,” transcript of broadcast on “7.30 Report,” ABC, 4 August 2000.