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'Aboriginal natives shall not be counted'

The first century and a half of British-Aboriginal relations in Australia can be characterised as a period of dispossession, physical ill-treatment, social disruption, population decline, economic exploitation, discrimination, and cultural devastation. The notional citizenship ascribed to the Aboriginal people at the beginning of British settlement in Australia was all but gone by the end of it, and as if to illustrate this point, in every State, the law specifically sanctioned the removal of Aboriginal children from their parents. For the Aboriginal people, this was a period of dispossession from their homelands followed by dispossession from family, culture and life as they knew it.

On 1 January 1901, the Australian Constitution came into effect, establishing the Commonwealth of Australia.

The Constitution sets the rules by which our nation is governed and describes the make-up, role and powers of the federal Parliament. It sets out how federal and state parliaments share the power to make laws. It is also describes the role of the executive government and Australia’s High Court and defines certain rights for Australian citizens.

There were two references to Aboriginal people contained in the Australian Constitution of 1901.

Firstly, section 51 of the Constitution outlined the law-making powers of the Commonwealth of Australia. Section 51 (xxvi) gave the Commonwealth power to make laws with respect to ‘people of any race, other than the Aboriginal race in any state, for whom it was deemed necessary to make special laws.’

Secondly, section 127 of the Constitution provided that ‘in reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted’.

The states remained responsible for the welfare of Aboriginal people. 

Census and Statistics Act

In 1905, the Census and Statistics Act established the Commonwealth Bureau of Census and Statistics. The Act made no reference to Aborigines, but the Bureau needed to define ‘aboriginal natives’ when census taking. The Federal Attorney-General gave the opinion that ‘half-castes are not aboriginal within the meaning of section 127 of the Australian Constitution, and should therefore be included’.

First Commonwealth Census

For the first Commonwealth census held in 1911, the interpretation of ‘shall not be counted’ as well as the decision as to who was a ‘half-caste’ was left to the Bureau of Census and Statistics.

The Northern Territory was administered by the state of South Australia until the beginning of 1911, when the Northern Territory was separated and transferred to Commonwealth control with Aborigines in the Northern Territory falling under Commonwealth jurisdiction.

Protection Policies

All states enforced special laws and protection policies for Aboriginal people. In practice, protection laws were shaped by prevailing attitudes of racial superiority and paternalism. This meant Aboriginal people lived under six different state laws and regulations.

State governments severely controlled every aspect of Aboriginal people’s lives, moving them from their homelands to live on reserves managed by Aborigine Protection Boards, protection officers or native welfare officers, children forcibly removed from their families, peoples’ movements and associations controlled; and they were classified according to descent.

Across Australia, Aboriginal people suffered poor living conditions and poor health on many reserves and missions with sub-standard shelter or housing, meagre rations, and poor education; employment was controlled, often with rations for payment or wages withheld, and speaking language and other cultural practices were prohibited.

Aboriginal Protection Act 1869 (Vic)

The Aborigines Protection Act (Vic) 1869 established an Aborigines Protection Board in Victoria to manage the interests of Aborigines. The governor could order the removal of any child from their family to a reformatory or industrial school.

Aborigines Protection Act 1886 (WA)

The Aborigines Protection Act 1886 established the Aborigines Protection Board and enabled the appointment of Protectors of Aborigines. It gave wide powers to the Board and Protectors to involve themselves in the lives of all Aboriginal people in Western Australia, including the care, custody and education of Aboriginal children. The Act also empowered Magistrates to apprentice Aboriginal children to work to the age of 21 years. 

Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld)

The Aboriginal Protection and Restriction of the Sale of Opium Act (Qld) 1897 allowed the Chief Protector to remove local Aboriginal people onto and between reserves and hold children in dormitories. The Director of Native Welfare was the legal guardian of all ‘aboriginal’ children until 1965 whether their parents were living or not.

Aborigines Protection Act 1909 (NSW)

The Aborigines Protection Act 1909 (the Act) gave the NSW Aboriginal Protection Board 'the authority for the protection and care of Aborigines' and to assume full control and custody of the child of any Aboriginal people if a court found the child to be neglected under the Neglected Children and Juvenile Offenders Act (NSW) 1905. The Aborigines Protection Amending Act (NSW) 1915 gave power to the Aboriginal Protection Board to separate Aboriginal children from their families without having to establish in court that they were neglected.

Aborigines Aboriginals Ordinance 1911 (NT)

The Aboriginals Ordinance of 1911 placed Aborigines in the Northern Territory under the direction of a Protector who under the Act was given power to ‘undertake the care, custody, or control of any aboriginal or half-caste’. The Aborigines Act 1911 in South Australia similarly provided for the ‘protection’ of Aboriginal people on reserves away from non-Aboriginal people.

Aborigines (Training of Children) Act 1923 (SA)

The Aborigines (Training of Children) Act 1923 expanded the definitions of 'aboriginal' and 'half-caste' in the 1911 Aborigines Act. Provided for the removal of an 'aboriginal child' to an institution under the control of the State Children's Council. The Chief Protector 'may … commit any aboriginal child to any institution within the meaning of the State Children Act 1895, … to be there detained or otherwise dealt with under the said Act until such child attains the age of eighteen years'. Applies to legitimate 'aboriginal' children who have obtained a qualifying certificate under the Education Act 1915 or who are at least fourteen years old and all illegitimate children irrespective of age who in the opinion of the Chief Protector and the State Children's Council are neglected.

Aboriginal Welfare Ordinance 1954 (Cth)

The Aborigines Welfare Ordinance 1954 (Act no. 8/1954) was Commonwealth legislation, established to 'provide for the welfare and control of Aborigines, particularly those at the Wreck Bay reserve' (Jervis Bay Territory). The 1954 Ordinance followed the lines of the New South Wales Aborigines Protection Acts, 1909-1943 and was approved by the Aborigines Welfare Board of New South Wales. 

Aborigines and Torres Strait Islander Affairs Act 1965 (Qld)

The Aboriginal and Torres Strait Islander Affairs Act 1965, with the full title "An Act to Promote the Well-being and Progressive Development of the Aboriginal Inhabitants of the State and of the Torres Strait Islanders" (Act no.27/1965) replaced the position of Director of Native Welfare with that of Director of Aboriginal and Island Affairs. The Director was no longer the legal guardian of Aboriginal and Torres Strait Islander children, but still had the power to order an 'assisted' Aborigine or Islander who was not living on a reserve to return to a reserve. Upon the recommendation of an Aboriginal court on which the assisted Aborigine or Islander was residing, the Aborigine or Islander could be removed to another reserve. Regulations could be made for the care of the children of assisted Aborigines and Islanders who did not reside in state institutions. 

Australian Aborigines Progressive Association

In April 1925, the Australian Aborigines Progressive Association (AAPA) was launched with a conference at St David's Hall in Surry Hills, NSW. The conference attracted a large crowd and widespread media attention.

The Association’s President, Fred Maynard, was an Aboriginal activist and Worimi man from Hinton in NSW. He opened the conference with the words “brothers and sisters, we have much business to transact here so let's get right down to it”.

Maynard was influenced by black activists in the United States, in particular Jamaican political activist, Marcus Garvey who organized the Universal Negro Improvement Association and in 1917, Garvey established an arm in the United States of America.

The AAPA operated out of Surry Hills, and had extensive links with communities in northern New South Wales. It campaigned for citizenship rights and to fight the discrimination and denial of rights that Aboriginal returned servicemen experienced after WWI.

The AAPA grew to have eleven branches throughout New South Wales and over 500 active members. However, the broad reach and vocal approach of the Association alerted the Aborigines Protection Board to the threat that it posed. The Board set about a campaign to discredit the leaders, attacking the credibility of Fred Maynard through a series of public statements. The Association and Maynard’s family were also subject to frequent police harassment. By the end of 1927, the association had dissolved.

‘Aboriginals and Half-Castes of Central and North Australia’ report

The Australian Government’s Minister for Home Affairs, CLA Abbott convened a meeting of groups, mainly missionary societies interested in Aboriginal welfare, to discuss a report on ‘Aboriginals and Half-Castes of Central and North Australia’ in 1929. Many of the delegates argued for increased Australian Government involvement in Aboriginal affairs, which was rejected by Minister Abbott as it was not an agenda item.

Australian Aborigines League 

William Cooper, an Aboriginal leader and Yorta Yorta man from the state of Victoria, and others set up the Australian Aborigines League (AAL) in 1934. An early initiative by the League was to petition King George V for Aboriginal people to be represented in Parliament.

william cooper
William Cooper

Conference of Chief Protectors and Boards

A Conference of Chief Protectors and Boards controlling aborigines in the States and the Northern Territory was held in Canberra in April 1937. This was the first time Aboriginal affairs were discussed at a national level.

In his opening address at the conference, the Minister for the Interior, the Hon T Patterson, said,

“the welfare of the aboriginal people is a matter in which all the Governments of Australia are vitally interested, and into which politics do not enter. Although the political opinions of governments may differ materially on general questions of policy, there is only one consideration where aborigines are concerned and that is: What is best for their welfare? The problem calls for the earnest consideration of all Ministers and officers vested with the duty of controlling natives and ministering to their wants.”

The Conference passed 20 resolutions on a range of matters including uniformity of legislation, racial problems, definition of “Native”, corporal punishment, chaining of natives and control of mission activities by government.

The most significant resolutions ‘Destiny of the Race’ and ‘Education and Employment,’ sanctioned an assimilation policy:

Conference members believed that the destiny of the natives of aboriginal origin, but not of the full blood, lies in their ultimate absorption by the people of the Commonwealth, and made recommendations that all efforts be directed to that end.

They also passed, subject to the previous resolution, efforts of all State authorities should be directed towards the education of children of mixed aboriginal blood at white standards, and their subsequent employment under the same conditions as whites with a view to taking their place in the white community on an equal footing with the whites.

In the same year the conference was held, Aboriginal people were coming together, forming organisations to advance their causes for citizen rights and to draw attention to the plight of the Aborigines. 

1938 - The Day of Mourning

On 26 January 1938, the Day of Mourning began with a protest march through the streets of Sydney, which was attended by both Aboriginal people and non-Aboriginal supporters. The march began at the Sydney Town Hall, and concluded at the Australian Hall, the venue for the major event on the day, the Day of Mourning Congress, a political meeting for Aboriginal people only.

The Congress was meant to meet in the Sydney Town Hall, but they were refused access, and instead held it at the nearby popular entertainment venue, the Australian Hall in Elizabeth Street. They were told they had to enter the Hall through the rear door.

The Congress was open to all Aboriginal people and attracted many major Aboriginal leaders of the time, including Pearl Gibbs, Margaret Tucker and Doug Nicholls. Around 1,000 people attended, making it one of the first mass civil rights gatherings in the country.

The Congress passed a number of resolutions, including: 

"We, representing the Aborigines of Australia, assembled in conference at the Australian Hall, Sydney, on the 26th day of January, 1938, this being the 150th Anniversary of the Whiteman’s seizure of our country, herby make protest against the callous treatment of our people by the whiteman during the past 150 years, and we appeal to the Australian nation of today to make new laws for the education and care of Aborigines, and we ask for a new policy which will raise our people to full citizen status and equality within the community."

The resolution and speeches stressed the need for full citizenship rights for all Aborigines, that degree of descent or fairness of skin should not dictate access to rights, that the Commonwealth should have greater control over Aboriginal affairs and that Aborigines should be involved in policy decisions and their implementation.

A ten point plan based on the resolutions was presented by a deputation of Aborigines to the Australian Prime Minister, the Hon. Joseph Lyons.

"Aboriginal people are the skeleton in the cupboard of Australia’s national life… outcasts in our own land.”Pastor Doug Nicholls, 1938
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AIATSIS acknowledges the traditional owners of country throughout Australia and their continuing connection to land, culture and community.

We pay our respects to elders past and present.