“Right of Occupancy”?

Landor, Edward Wilson. 1847. The Bushman: Life in a New Colony. London: Richard Bentley.
Online edition here

This chapter reveals how early settlers and government officials were well aware that the land had been seized from the Noongar Nation without consent or treaty.

CHAPTER 15.

HOW THE LAWS OF ENGLAND AFFECT THE NATIVES.

The native population of our colony are said to be a much more peaceable and harmless race than those of any other part of Australia. In the early days of the settlement they caused a good deal of trouble, and were very destructive to the pigs and sheep of the colonists; but a little well-timed severity, and a steadily pursued system of government, soon reduced them into well-conducted subjects of the British Crown. There appears, however, to be little hope of civilizing them, and teaching them European arts and habits. Those of mature age, though indolent, and seldom inclined to be useful in the smallest degree, are peaceful in their habits; and when in want of a little flour will exert themselves to earn it, by carrying letters, shooting wild ducks with a gun lent to them, driving home cattle, or any other easy pursuit; but they appear to be incapable of elevation above their original condition. Considerable pains have been bestowed (especially by the Wesleyans) upon the native children, many of whom are educated in schools at Perth, Fremantle, and other places, in the hope of making them eventually useful servants to the settlers. Most of these, however, betake themselves to the bush, and resume their hereditary pursuits, just at the age when it is hoped they will become useful. Very frequently they die at that age of mesenteric disorders; and very few indeed become permanently civilized in their habits.

Nothing could be more anomalous and perplexing than the position of the Aborigines as British subjects. Our brave and conscientious Britons, whilst taking possession of their territory, have been most careful and anxious to make it universally known, that Australia is not a conquered country; and successive Secretaries of State, who write to their governors in a tone like that in which men of sour tempers address their maladroit domestics, have repeatedly commanded that it must never be forgotten “that our possession of this territory is based on a right of occupancy.”

A “right of occupancy!” Amiable sophistry! Why not say boldly at once, the right of power? We have seized upon the country, and shot down the inhabitants, until the survivors have found it expedient to submit to our rule. We have acted exactly as Julius Caesar did when he took possession of Britain. But Caesar was not so hypocritical as to pretend any moral right to possession. On what grounds can we possibly claim a right to the occupancy of the land? We are told, because civilized people are justified in extending themselves over uncivilized countries. According to this doctrine, were there a nation in the world superior to ourselves in the arts of life, and of a different religious faith, it would be equally entitled (had it the physical power) to the possession of Old England under the “right of occupancy;” for the sole purpose of our moral and social improvement, and to make us participants in the supposed truths of a new creed.

We have a right to our Australian possessions; but it is the right of Conquest, and we hold them with the grasp of Power. Unless we proceed on this foundation, our conduct towards the native population can be considered only as a monstrous absurdity. However Secretaries of State may choose to phrase the matter, we can have no other right of occupancy. We resolve to found a colony in a country, the inhabitants of which are not strong enough to prevent our so doing, though they evince their repugnance by a thousand acts of hostility.

We build houses and cultivate the soil, and for our own protection we find it necessary to declare the native population subject to our laws.

This would be an easy and simple matter were it the case of conquerors dictating to the conquered; but our Secretaries of State, exhibiting an interesting display of conscientiousness and timidity, shrink from the responsibility of having sanctioned a conquest over a nation of miserable savages, protected by the oracles at Exeter Hall, and reject with sharp cries of anger the scurrilous imputation. Instead, therefore, of being in possession by right of arms, we modestly appropriate the land to ourselves, whilst making the most civil assurances that we take not this liberty as conquerors, but merely in order to gratify a praiseworthy desire of occupying the country. We then declare ourselves seised in fee by right of occupancy. But now comes the difficulty. What right have we to impose laws upon people whom we profess not to have conquered, and who have never annexed themselves or their country to the British Empire by any written or even verbal treaty?

A O Neville Evidence Part 18

State Records Office of Western Australia
Microfilm
Acc 2922/1-2
Title: Transcript of evidence 1934
Item 1 & Item 2

Aborigines Royal Commission 005-3

Tuesday, 13^th March, 1934

H. D. Moseley, Esq., Commissioner.

AUBUR [sic] OCTAVIUS NEVILLE, Chief Protector of Aborigines, further examined:

[Part 1] [Part 2] [Part 3] [Part 4] [Part 5] [Part 6] [Part 7] [Part 8] [Part 9] [Part 10] [Part 11] [Part 12] [Part 13] [Part 14] [Part 15] [Part 16] [Part 17] Continued…

I refer to Sections 118-120 of the Licensing Act, Section 45 of the Aborigines Act. The Licensing Act does not include half-castes, nor does it enable exempted aborigines or half-castes to obtain liquor. The object we have in view is to make it an offence to supply liquor, either to aborigines, half-castes or coloured persons, unless exempted, and to exclude those from licensed premises unless similarly exempted. In practice, most cases are taken under the Aborigines Act, as it has a wider application than these sections of the Licensing Act. It is proposed to insert a new section after Section 45 of the principal Act as follows: —
“45A.(1) Any person being the holder of a publican’s general license or wayside house license who shall permit or suffer any aboriginal or half-caste not exempt from the provisions of this Act to enter remain in or loiter about his licensed premises shall be guilty of an offence against this Act,
(2) Any aboriginal or half-caste not exempted from the provisions of this Act who enters or remains on or loiters about the premises in respect of which a publican’s general license or wayside house license under the provisions of the Licensing Act 1911-22 is held shall be guilty of an offence against this Act provided that this section shall not apply to any aboriginal or half-caste employed on the licensed premises under a permit granted by the Chief Protector.”
With regard to the first part, it has been ruled by the Crown Law Department that “aboriginal” means an aboriginal, defined under Section 2 of the Act and not under Section 3.

83. There is no definition under Section 2? — It says an original inhabitant of Australia; in other words, a half-caste is deemed to be an aboriginal is not included in the Section.

84. The definition in Section 2 is that of a half-caste. You have to read Section 3 to find out the definition of “aboriginal”? — I was thinking of the amendment we propose to make defining an aboriginal in that section.

[End of page 70]

I have here a minute by the Assistant Crown Solicitor written in 1932 and dealing with the definition of “aboriginal”. I put in the Chief Secretary’s department file No. 302/32 (Exhibit 22). Our object is to prevent natives, half-castes or coloured parsons obtaining liquor unless they are definitely exempted. A considerable number of people are getting liquor. At Wagin the other day the suppliers claimed that some they supplied did not come under the Act, but the Protector won his case. The last proviso in the proposed new section covers the granting of a license by the Chief Protector to a publican who may wish to employ a native on his premises. We give permission to publicans in the North only to employ as a yardman a male native, but we do not allow any females on the premises. Under regulation, the Chief Protector has power to give a special permit for that purpose. Sections 47 to 52 deal with firearms. These sections should be restored, but I do not think that is likely to happen. I recognise the wisdom of having one authority only to deal with the issue of licenses for firearms.

85. Probably anything that is done in that direction should be done by amending the Firearms Act? — The Commissioner of Police should work in conjunction with the Protector in regard to licenses to natives, so that there may be no injustice done to them. If the matter is left in the hands of the police, very few natives, as we know, will be permitted to carry firearms. Section 58 of the Act deals with penalties, it is proposed to increase some of the penalties which, in our opinion, are insufficient. We propose to substitute the words “three years” for “six months” in the fourth line, and to substitute the words “one hundred” for “fifty”.

86. That is the maximum term of imprisonment ? — Yes. We also propose to add the words “or both” after “pounds” in the last line. In the North, men, particularly Asiatics,

[End of page 71]

are constantly being brought up for supplying liquor to aborigines. They pay the fine of £50, but commit the same offence soon afterwards. The penalties are less than those provided in other ordinances in Australia. It would be a good check on wrongdoing if the penalties were increased. It is proposed to amend Section 59A. of the principal Act by inserting a new subsection as follows :—
“No admission of guilt or confession before trial shall be sought or obtained from any aboriginal or half-caste charged or suspected of any offence the punishment for which may involve loss of life or liberty except with the consent of the Chief Protector of Aborigines, and if any such admission or confession is obtained it shall not be received in evidence.”
Section 59A. of the Act provides that a native shall not plead guilty, shall not be allowed to plead guilty, can only plead guilty if the Protector does it for him, and is quite satisfied that he should plead guilty. In criminal court cases there is never a plea of guilty put in; it is always a plea of not guilty in order to give the native a chance. We find, however, that police officials extract confessions from natives and produce them in court as evidence. The two things are inconsistent. We bring a native to court and tell him we are going to give him a fair trial according to British law. In effect, he starts out as not guilty of the offence. Shortly after, the police trot out the confession. I invariably protest in court against such confessions being put in. The judge has remarked that the two things are not the same. The confessions have not always been accepted as evidence. Nevertheless, a man stands condemned in spite of the fact that he is not permitted to plead guilty. It is our duty to prove a man guilty, if he is guilty.

87. We are rather altering the law as it applies to others? — Some of the admission are definitely obtained by threats. A native does not understand what is required of him. He willingly says he is guilty, and tells the whole

[End of page 72]

story with a certain amount of glee. In the case of a native murder, be may not see that he has done any wrong, and thinks he is a fine fellow. He thinks he is telling you something it was right for him to do from his point of view. He does not see why he should keep back the fact that he is guilty, and he spills it all out. The police go to him, and something of this kind occurs.

[End of page 73]

The policeman says to the native, “you want to tell me all about the killing business”. He does that to extract an admission. The policeman, as he must do, also says, “Suppose you don’t want to tell me, all right.” The native does not see any harm in telling him and he replies, “I did it all right. Of course I did.” Then the native goes on to tell the policeman why he did it. I suggest that if a white man were to be spoken to by a policeman along those lines in such circumstances, he would naturally shut up like an oyster because he would know that he would have to stand his trial. A white man in those circumstances would not say a word unless there were certain circumstances that might compel him to do so. Natives should not be asked such questions by policemen.

It is our duty to show that the native committed the murder if he did so, and to prove the charge. Here is a case in point. A man named, we shall say, Barney, is arrested on a charge of murder. The policeman says to him, “What you want spear old fellow for?” The native answers the policeman giving the reason why he did it and explains how he did it. Of course he would do so because the native thought he was doing right according to tribal law. The contentions I have raised coincide with our idea that native courts should be established to deal with such cases. I consider the clauses proposed to be embodied in the new legislation are necessary for the protection of the natives in order to give them a fair unbiassed trial. I submit a copy of a minute I seat to my Minister last year dealing with matters I have been referring to including the establishment of native courts (Exhibit No. 23). In every dependency or country where there are natives and in some of the Australian States, special courts have been established to deal with native tribal cases. We propose that special oourts shall be established in Western Australia for a similar purpose. I was asked to give evidence on that subject before the Royal Commission on the Constitution of the Commonwealth in 1927. I did so and since then the matter has been taken up in different parts of Australia and I claim that I was the first to make that suggestion in the interstate of the aborigines.

[End of page 74]

Aboriginal woman and half-caste son of late John McKenzie

State Records Archive
Consignment: 652
Item: 1910/0318
Title: James Isdell. Queensland. Aboriginal woman and half-caste son of late John McKenzie, Frog Hollow

Keywords: Frog Hollow Station, John MacKenzie, James Isdell, Sam Muggleton, McGrath, Beagle Bay, Turkey, Lilly

[Telegram]
18 Mar 1910
Telegram from Halls Creek
To Aborigines Dept, Perth
McKenzie Frog Hollow accidentally shot left Queensland aborigine woman and half-caste son aged four. Also left property cattle horses. What steps advisable secure woman’s return own country if she wishes and sufficient have son brought up Beagle May Mission. Send reply for police assistant. Isdell

[Letter]
18.3.10
Halls Creek
To Chief Protector, Perth
Sir,
Two cases of death of white men have just taken place in Halls Creek district in which natives are slightly interested. John McKenzie was accidentally shot a few days ago at Turkey Creek. He lived at Muggleton’s Frog Hollow Station and was the owner of cattle, horses and some pastoral leases. He had at the station an aboriginal woman belonging to Queensland and a young half-caste boy. I wrote to you about him last year, unfortunately I can not give you the date, as I was compelled to leave a lot of my books at [illegible] as I had no room to carry them back to Halls Creek.
In the winding up of his estate provision should be made to send the woman back to her country and to bring the boy up at Mission Station. The boy is about 4 years old and McKenzie told me he intended to send him south for education as soon as he was 6 years old.
The second case happened a few days after when S Muggleton, owner of Frog Hollow Station, was found the bush, very ill, along with his horse, he was brought home but died shortly after. He is supposed to have had a fall from his horse. On his station are a family of aboriginal girls named McGrath and they own some cattle and horses. Muggleton told me one of the girls had 8 or 9 cattle and another one horses. I also wrote you last year on this matter because the mother of these girls was on the indigent list receiving relief at Halls Creek. Mr Way, the RM, left Halls Creek yesterday to hold inquiry and I gave him notes of both cases, but I thought it advisable that the Department should instruct police or else magistrate to make full inquiries, also that magistrate protect the girls and also woman and child of McKenzie.
I remain, yours obediently,
James Isdell

[Letter]
26.3.11
To Chief Protector, Perth
Sir,
Constable Taylor, Turkey Creek, took 6 half-castes to Wyndham last February, for transmission to Beagle Bay, included amongst them is a son of the late John McKenzie of Frog Hollow. Mr McKenzie left a half share in a cattle station to his brother and he was to look after the boy, but he is a ne’er-do-well and had no money of means of sending the boy away and paying for his keep. As the little boy was being neglected and practically living with aborigines I sent him away. As McKenzie’s estate can well afford to pay for him, what steps had best be taken to compel the brother to do so. The latter does not deny his liability.
Frog Hollow Station is likely to change ownership, and consequently probably new arrangements may have to be made re killing cattle for natives. I previously wrote to the Department with reference to a mare on the station belonging to a half-caste girl (Lilly) sent to Beagle Bay two years ago, but have received no reply. I would suggest that she be sold and proceeds remitted to the Beagle Bay Mission to help pay for the girl’s keep. The mare is old and worth about £8 or £9. Both Turkey and her half-caste son, now grown up, have horses, about 16 in number, but most of them belong to Turkey, who is an aborigine woman belonging to Northern Territory, but has been here for nearly 20 years. In the event of the station changing ownership, there may possibly be some bother over them. I would like to receive full instructions to act on your behalf in protecting the woman’s interest.
I remain, Yours obediently,
James Isdell

[Letter]
318/10
6th May, 1911
To Mr J Isdell
Travelling Protector of Aborigines
Turkey Creek
I beg to acknowledge receipt of your letter of 26th March last, and to inform you that an illegitimate child has no standing in law against the estate of its father.
The brother of the deceased McKenzie could not be compelled to contribute to the support of such a child, and unless he voluntarily assists, the law could not force him to do so.
Chief Protector of Aborigines

[Letter]
Turkey Creek
8.6.11
To Chief Protector of Aborigines, Perth
Sir,
With reference to your letter 318/10, 6th May, re late McKenzie’s illegitimate son, as the father fully acknowledged his son and expressed his intention to me and others to educate and have him taught a trade, and as he died leaving ample property to meet a charge for his upbringing, I should have thought the estate would be liable, if the father is liable when alive (as he would be under the Aborigines Act) then his estate should be liable at his death. The mother, I am afraid, will do little for the boy.
I remain, Yours obediently,
James Isdell

Katitjin Notes:

Questions: What became of John McKenzie’s little boy? What became of Turkey and her cattle? What became of the McGrath girls and their property? Was their legal rights to that property recognised?

Isdell, James (1849-1919)
James Isdell was a pastoralist, parliamentarian, and traveling protector of Aborigines. Although he expresses compassion in his communications in this record, he was more notoriously known for being the instigator of the Canning Stock Route and an “enthusiastic child removalist.” The following quote is from a chapter by Robert Manne, in the book Genocide and settler society: frontier violence and stolen indigenous children in Australian history (2004), edited by A. Dirk Moses:

The most enthusiastic West Australian child removalist in these early days was James Isdell, the former pastoralist and parliamentarian, who was appointed traveling protector for the north in 1907. On 13 Nov 1908, Isdell wrote from the Fitzroy River district to the Chief Inspector, Charles Gale. “I consider it a great scandal to allow any of these half-caste girls to remain with the natives.” On 15 Jan 1909, Gale issued Isdell with the authority to “collect all half-caste boys and girls” and to transport them to Beagle Bay. Isdell expressed his gratitude: “It should have been done years ago.” By May 1909, he was able to report from Wyndham that the entire East Kimberley region had been “cleaned up.”
Isdell was aware that sentimentalists from the south sometimes wrote letters to newspapers “detailing the cruelty and harrowing grief of the mothers.” He regarded such complaints as nonsensical. “Let them visit and reside for a while” in one of the native camps and see for themselves “the open indecency and immorality and hear the vile conversations ordinarily carried on which these young children see, listen to, and repeat.” Isdell did not believe that the Aboriginal mother felt the forcible removal of her child more deeply than did a bitch the loss of a pup. “I would not hesitate,” he wrote, “to separate any half-caste from its Aboriginal mother, no matter how frantic momentary grief might be at the time. They soon forget their offspring.” “All Aboriginal women,” he explained in letters to Gale “are prostitutes at heart” and all Aborigines are “dirty, filthy, immoral.” (Moses 2004, 222-223)

Muggleton, Samuel (1855-1910)
Sam Muggleton, born in NSW, he went to Queensland for 15 years before coming to Western Australia where he lived for 20 years as a stockman and then pastoralist at Frog Hollow, where he worked his stock with John McKenzie and Turkey, an Aboriginal woman from Borroloola in the Northern Territory. Frog Hollow had a reputation for “kindness to Aborigines” in that the workers had some degree of autonomy on the station. More about Sam Muggleton here.
See also Item: 1909/0042

MacKenzie, John
From the West Australian newspaper 16 Mar 1910
Mr John McKenzie, who was killed on Frog Hollow Station, was also an old identity in the district. He had been a stockman, but by hard work had attained a position of some affluence and was a partner with Messrs Cranwell and Yates in a station adjoining Alice Downs. His age was about 53
http://trove.nla.gov.au/newspaper/article/26251937

A O Neville’s Evidence Part 17

State Records Office of Western Australia
Microfilm
Acc 2922/1-2
Title: Transcript of evidence 1934
Item 1 & Item 2

Aborigines Royal Commission 005-3

Tuesday, 13^th March, 1934

H. D. Moseley, Esq., Commissioner.

AUBUR [sic] OCTAVIUS NEVILLE, Chief Protector of Aborigines, further examined:

[Part 1] [Part 2] [Part 3] [Part 4] [Part 5] [Part 6] [Part 7] [Part 8] [Part 9] [Part 10] [Part 11] [Part 12] [Part 13] [Part 14] [Part 15] [Part 16] Continued…

67. Yesterday I explained the position in regard to accidents, and said that it was proposed to insert in the new Bill a clause to be numbered 33a, as follows:—
“If an aboriginal or half-caste in the service of an employer sustains personal injury arising out of or in the course of his employment, not attributable to his serious or wilful misconduct, and such employment was not of a casual nature, then any expense incurred or defrayed by the department for medical or surgical attendance or for hospital charges in connection with the treatment and maintenance of, or in the case of death the cost of interment of, such aboriginal or half-caste shall be payable by the employer to the Chief Protector and shall be recoverable by action at the suit of the Chief Protector.”
That provision would take the place of any reference to the aboriginal under any other Act of that nature.

68. You are really importing some of the ideas of the Workers’ Compensation Act? — Yes, but there is no compensation.

69. I think it is wise to limit the amount recoverable? — We have tried many times to induce employers to pay ordinary expenses in cases that we say are perfectly clear, and the employers have sometimes refused, simply because there is no power to compel them to pay.

70. Have you ever tried to bring in, as against the employer, the provisions of the Workers’ Compensation Act as they stand? — Only once, and we succeeded.

71. Was it a case of death? It was a case of a lost eye.

72. You have never taken action in the case of death on behalf of dependants? — No, but very often the dependants are handed over to our care.

73. I suppose in many cases the dependants continue to carry on where they have been up to the time of the death? — Yes. The stations continue to look after them, but on the other hand we have to look after them sometimes. Section 34 of the principal Act is also a very important provision, we propose to amend it so as to make it possible for us to take action which is very necessary. The section deals with the liability of a father in the case of an illegitimate native child. In the last paragraph…

[End of page 63]

you will see these words —
“Provided that no man shall he taken to be the father of any such child upon the oath of the mother only.”

74. That is the proviso to paragraph 2? — Yes. Again and again we can get a certain amount of corroborative evidence, and the girl swears that such and such a person is the father of her child; but unless we can get an admission from the person himself, nine times out of ten it is quite hopeless to proceed under that section, and we are sometimes compelled to have recourse to the Child Welfare, which in some respects is not suitable. We propose to delete the proviso in question and insert the following:—
“Provided that no man shall he taken to be the father of any such child upon the evidence of the mother unless her evidence is corroborated in some material particular.”
I think you will find that is the provision in similar Acts here and elsewhere. That will give us a better chance, because there are so many illegitimate children by European fathers that it is necessary to sheet home the responsibility to somebody. The State is maintaining numbers of children that it has no right whatever to be maintaining at the present time. In many cases we know who the fathers are, but we can take no action. Incidentally, some of the fathers are married men, and some of the girls or women have more than one child by the same man. The father simply ignores any action which the department might wish to take, because he knows that it is impossible for us to take any action under that section. We do succeed sometimes by, perhaps, more or less bluffing men into admissions; and of course the married man is in an awkward position and does not want his wife to hear about these things, and so he admits paternity and pays up. It is the single young waster, without any responsibility at all, who simply seduces these girls at his pleasure. I shall have to refer to that matter again under Section 43.

75. Section 36 of the principal Act deals with persons entering places where natives and half-castes are camped. A small amendment is suggested, to substitute the word “aborigine” for the word “aborigine” in the fifth line; but that is only to bring…

[End of page 64]

about consistency. The important amendment is to add after the word “camp” in the fifth line the words “living, resorting or staying”. It sometimes happens that a man will take a half-caste girl to a boarding house or hotel.

76. The word “camp” suggests camps only, and not other places? — Yes. “Camp” is not wide enough.

77. There will be a further consequential amendment in the second paragraph of that section. After the word “camp” in the third line of the paragraph to insert the words “or place”? — Yes. As regards Section 37, the word “aboriginal” should be substituted for “aborigine”. In Section 38 I propose the insertion of the words “or half-caste” after the word “aboriginal” whenever the same appears. That also is consequential. In Section 39 I propose another consequential amendment, “aboriginal” to take the place of “aborigine” whenever the latter word occurs. It is proposed to amend Section 40 by inserting the words “or female half-caste” after the word “aboriginal” in the first line. When this Act was framed it was thought only necessary to provide that an aboriginal woman should not be legally married to any other person without the consent of the Chief Protector. Again the framers of the Act forgot the half-caste altogether. Again and again we find unsuitable marriages proposed. We have had marriages with Asiatics suggested. We have had marriages between half-caste girls and unsuitable and low-classed unemployed whites. In fact, we have had all sorts of complications, some of which have been brought about by missionaries. For the last 25 years or so the missionaries have been seeking to marry their inmates to someone or other, and those marriages have not always been suitable or successful or desirable. It is contended that the Chief Protector should have power to prohiblt unsuitable marriages, particularly nowadays when such marriages are very much on the increase. In point of fact, I have induced a good many persons who are licensed to celebrate marriages to communicate with me before such proposed marriages take place. In some cases I have been able to prevent…

[End of page 65]

alliances, while in others I have readily agreed, I consider it is absolutely necessary that the Chief Protector should have this power to prevent alliances which might lead to tragedy. As I said yesterday, the missionary does not always take cognisance of tribal laws, and breaches of these laws, or what seem breaches, to them do not appear to be breaches of any law. It is consequently necessary for someone with knowledge of the culture of the aborigines to safeguard these people in this way. It is a vital provision, and this matter has given us a vast deal sf trouble.

78. I do not know that you have yet mentioned the proposed amendment. I take it the amendment is to insert “female half-caste” after the word “aboriginal” in the first-line? — Yes, and presumably “any other person who may be covered by the Act in future”. In Section 42 I propose the insertion after the word “aboriginal” of the words” or half-caste”, and the omission of the words “other than an aboriginal” in the second line. I seek to control marriages between the natives themselves for the same reason, that the natives have broken down their own culture.

79. Any marriage of any native? — Yes, to anyone else. The natives are intermarrying at the present time in a way which is utterly undesirable. That is largely due, as I said previously, to missionary effort which tries to get people married under certain circumstances.

[End of page 66]

I must go back to Section 40. I wish to insert the words “or female half-castes” after the word “aboriginal” in the first line. To be consistent this is necessary. The same thing
applies to section 41. It does not often occur, but it has occurred in recent years, that female half-castes are increasing in numbers accompany aborigines to the creeks in the pearling districts to meet Asiatics. Now we come to the bone of contention, Section 43. As you will see in the first line of that section there is no mention of half-castes at all; the whole section omits half-castes.

80. On the assumption, I suppose, by the draftsman that “half-castes” come within the definition of aborigines? — The section also contains the word “cohabit” in the third and eighth lines. In 1924 I found in the North-West a white man having intercourse with more than one female aboriginal on the station he was managing. On referring the matter to the Solicitor General, Mr. Sayer, he ruled that that man was not c0-habiting, he was merely having intercourse. Mr. Sayer referred me to Webster’s dictionary, which stated that “cohabit” meant “to live together as man and wife”. The effect of that ruling has been almost entirely to prevent me from taking action in numerous cases ever since. We know that men do have intercourse with native women. We are told again and again that such-and-such a man is doing so. we find that from evidence we may possess that that is so in certain cases and yet we can take no action under the section in question because the man is not living with the woman. She may visit him occasionally, or he may visit her, but according to Mr. Sayer’s ruling he is not cohabiting. Since that ruling was given we have had 26 cases of the kind in which we have taken action, but we have been able to get conviction in only five. People often wonder why the dept does not take action in certain cases. it is no use trying to explain to the public that we have no legal power to take action, but the fact remains that we have not that power to take action in certain cases. In the Far…

[End of page 67]

North it is said to be more or less customary for men to live with the native women. It certainly is so in certain places but, as I have said, the dept cannot step in and take action beyond removing the woman, or perhaps prohibiting the man from employing natives. Such action is sometimes taken for the sake of the community generally, but I sometimes find that when I take away a man’s permit because, on very good grounds, I suspect him of doing wrong, there is a hullabulloo and his permit is soon restored to him. I shall hand in the file containing that ruling because I consider it of importance. The number of the file is
195/24. (Exhibit 21).

81. Has the draftsman put up a proposed amendment ? — Before I give you the amendment I wish to point out that “half-castes” are omitted from that section. That might have been all right when the Act was framed, but it is not all right today, as you know, there are hundreds of half-caste females now and a great many of them are not living with aborigines, while others are sent out by the dept to work. It is no offence for anyone to cohabit or have intercourse with these half-castes. The half-caste girl — very often a young girl — is utterly unsophisticated. She does not know right from wrong, very often; neither does she know the consequences of her action and she becomes a ready victim to the low-class — and not always the low-class — white man. We know that these men are constantly chasing the half-castes and yet we cannot protect the girls. A man will mark down one of these girls as his prey and hang on to her until he achieves his purpose. Yet we cannot interfere. We must allow these girls a certain amount of liberty, and these things take place in all sorts of ways. The offspring of the Europeans and half-caste girls or women are increasing in numbers and the State has to support them because there are no means by which we can make the father pay maintenance. Very often the girls themselves do not know who the fathers are. Perhaps a man is introduced or meets a girl in the evening and the…

[End of page 68]

girl goes off with him then and there. A few examples in the court would soon put a stop to that sort of thing, but we have not any power to take action. Therefore, it is proposed to amend Section 43 in the following way:-
By deleting Subsection (1) and inserting in lieu thereof a new subsection as follows:-
“Any person except an aboriginal or half-caste who habitually lives with an aborigines or half-castes or with any aboriginal or half-caste not his wife or husband or who cohabits with or has sexual intercourse with any aboriginal or half-caste who is not his wife or her husband shall be guilty of an offence again at this Act.”
You will find a similar provision in the Northern Territory Ordinance, although in the older States of Australia this state of affairs has been more or less ignored with disastrous results.
“Every male person who is an aboriginal or half-caste and who without permission in writing from a Protector lives or resides with or travels accompanied by a female aboriginal or half-caste, or vice versa, shall be presumed in the absence of proof to the contrary to be cohabiting with her or him and it shall be presumed in the absence of proof to the contrary that she is not his wife or that he is not her husband.”
I am having a comprehensive statement of cases prepared for you extending over a number of years, showing incidents that have taken place and the action of the dept and the impossibility of doing anything to remedy matters. I take it that that statement will be regarded as confidential as it necessarily contains names and addresses.

82. The liquor section of the Act, as we call it, Section 45, has always caused confusion because it does not coincide with the liquor sections of the Licensing Act, or rather the sections in that Act which refer to aborigines and half-castes.

[End of page 69]

A O Neville’s Evidence Part 16

State Records Office of Western Australia
Microfilm
Acc 2922/1-2
Title: Transcript of evidence 1934
Item 1 & Item 2

Aborigines Royal Commission 005-3

Tuesday, 13^th March, 1934

H. D. Moseley, Esq., Commissioner.

AUBUR [sic] OCTAVIUS NEVILLE, Chief Protector of Aborigines, further examined:

[Part 1] [Part 2] [Part 3] [Part 4] [Part 5] [Part 6] [Part 7] [Part 8] [Part 9] [Part 10] [Part 11] [Part 12] [Part 13] [Part 14] [Part 15]Continued…

007-3
Section 3 of the Act really provides which of those coloured persons is deemed to be an aboriginal, but it goes only a very little way, and so it is proposed to add after “Australia”, in paragraph (a), the words “of full blood or of not less than three-quarter blood of the aboriginal race of Australia”. You can have an octoroon aboriginal.

59. It involves quite a complex collection?—Yes, it is almost impossible. Then, by striking out paragraph (d), which refers to a half-caste child whose age apparently does not exceed 16 years, and by striking out all words after “express” in line 11.

60. That is the last paragraph of the section?—Yes. And we add instead “and includes any person of aboriginal blood in any degree deemed by the Minister to come within the meaning of this section”. The Minister can decide that any coloured person shall be deemed to be an aboriginal if he has aboriginal blood in him. That is the only provision which enables us to get over the whole of the coloured difficulty. That provision, I believe, has been made in the Northern Territory Ordinances. Section 4 is merely a consequential amendment, substituting the words “aboriginals and half-castes” for the word “aborigines”. It may be necessary to include the words “or persons subject to this Act” because I do not think the proposed words cover the coloured person entirely. Now the same applies to Section 6. Section 8 is very important. It defines who shall be wards of the Chief Protector. Under the old section every aboriginal and half-caste ohild were wards until 16 years of age. But “aboriginal” in that section, according to a ruling of the Crown
Law Dept, meant only “aboriginal” as defined in Section 2, not as defined in Section 3. It also excluded the rights of the mother of an illegitimate half-caste ohild, but did not exclude the rights of persons legally married, many of whom have no more idea of how to look after their ohildren than has the mother of an illegitimate child. Marriage, as we understand it, with the natives is

[End of page 57]

something new. When the Act was passed there was no such thing as legal marriage amongst the natives, and so it was thought there would not be any difficulty in taking away the children of persons legally married. It is necessary that such power should be given for the sake of the children, and so this section is amended by inserting before the word “until” in line 2, the words “notwithstanding that the child has a parent or other relative living”. We also substitute the words “twenty-one” for the word “sixteen”; in other words we raise the guardianship age to 21. It is 18 in the Child Welfare Act and 21 in the Northern Territory Ordinances. It is very necessary that it should be made 21. We train our youngsters and send them out to employment, and when they have attained the age of 16, except in the matter of permits, they can snap their fingers at us … and they do. A half-caste boy or girl of 16 is certainly not competent to look after himself or herself. Constant trouble is occurring through this, and all the years of work we have spent on some of these children is thrown away because the guardianship age ceases at 16. This is a vital provision. In Section 9 the alteration is simply consistent with the previous section; the words “twenty-one” are used instead of “sixteen” in the first paragraph. At present a half-caste boy over 16, who does not live as a native, is not subject to employment under permit at all. It is very difficult to draw the line there. Section 12 of the Act gives power for the Minister to remove any aboriginal from one district to another, or to keep him within the boundaries of a reserve, etc. “District” is mentioned and so it is important that a district be defined. That refers only to the aboriginal, whereas very often it is a half-caste that requires to be removed. Under that section there is no power for the Chief Protector to remove a native suffering from disease to a hospital if he refuses to go. There has been an amendment of the Health Act authorising a medical man, if requested by the Chief Protector, to visit such a native and order him to hospital, but there is

[End of page 58]

no power to compel that native to go. It is necessary that the department should have power to treat a native and convey him to hospital willy-nilly. So in that section we insert the words “or half-caste” after “aboriginal”. Presumably, after further consideration, it will include also the words “coloured persons generally”. Then, by inserting after “reserve”, in line 2, the words “settlement or other place, or to be removed to and kept in a hospital”. We have got over that difficulty a little by declaring the areas on which some of the hospitals are stationed to be reserves, but it is a very awkward method. Then we insert after “district” wherever it occurs in lines 3, 6 and 12, the words “or settlement or other place or hospital”. That is consequential.

61. “Settlement” is not used in the existing Act?—No, it was not thought of.

62. Then you had better tell them what “settlement” means?—Yes, it could be included under “Aboriginal institution”. It should include any institution conducted by the department or a mission. Of course it is provided that the Governor may proclaim any institution to come under the Act. Now it is proposed to insert a new section to stand as Section 13A as follows :— “The Chief Protector may appoint persons with authority to examine aborigines or half-castes suspected of being afflicted with disease, and to compel such aborigines or half-castes by such force as may be necessary to undergo examination or treatment accordingly”. There is at present no power to compel any native to submit himself or herself for examination. They frequently refuse to be examined. They run away from any person who they think is going to examine them, particularly if there is something the matter with them. A native never thinks he is sick until he has some pain. It is necessary that my officers should be in a position to examine natives when necessary. Frequently I have had to refuse to undertake examinations in various parts of the country because I had not this power.

[End of page 59]

Those two sections give us all the authority necesaary to examine natives and put them in hospital. Once they enter hospital they find that the conditions are not as bad as they expected , and usually they respond to the treatment very well. Section 15 should be amended by inserting after the word “aboriginal” wherever it occurs the words “or half-caste”. It is essential that half-castes should be included because so many of the inmates of reserves and settlements are half-castes. A further amendment to Section 15 is the addition of a new paragraph reading —
“Harbours, transports or otherwise assists an aboriginal or half-caste in or after his removal.”
Runaways from our settlements are often picked up by itinerant lorry drivers, and taken to Perth or other places, and such runaways are sometimes harboured and fed. That adds considerably to our difficulties in recovering them. We desire power to proceed against such persons.

63. Section 17 should be amended by substituting the words “twenty-one” for the word “fourteen” to be consistent with what has already been suggested. Section 18 should be amended by inserting the words “aboriginals or half-castes” instead of the word “aborigines” in line 10, and the words “or half-caste” after the word “aboriginal” in line 13. We are seeking to include half-castes in numerous sections where they are not now mentioned. The reasons for this have already been given. Section 21 should be amended by substituting the words “twenty-one” for the word “fourteen”.

64. In Section 22, the words “twenty-one” should be substituted for “sixteen”. It would be quite inconsistent to leave the section as it is and amend the guardianship age. In Section 27, a consequential amendment is necessary, “twenty-one” being substituted for “sixteen”.

65. Section 28 refers to the powers of protectors in respect

[End of page 60]

of demanding permits; In other words, investigating the position between employer end employee, I wish to include after “police officer” in paragraphs 1 and 2 the words “or officer appointed by the Chief Protector.” We have a number of girls in service and a number of youngsters in different forms of employment, and I may desire to employ a woman officer, possibly one attached to head office now, who could trovel around and make the necessary inspections and inquiries. At present there is no power to do that.

66. Section 33 is very important because it covers matters connected with the general care and protection of the property of aborigines and half-castes, but it is deficient in certain necessary provisions. We propose the insertion of a new paragraph 3 as follows : —
“Require a statement of all monetary transactions between the aboriginal and half-caste and any other person for the preceding three years, and such other person shall supply such statement to the Chief Protector on demand.”
Now and again I am appealed to by aborigines and half-castes to assist them in claiming the wages due to them. Their claims are not always right; in fact, they are more often wrong than right, but at present we have not sufficient power to compel an employer to disclose the transactions between the native and himself. Sometimes we find that the native has been taken down considerably, and we are perhaps able to get the matter rectified. In the event of any employer refusing to supply a statement, we have no redress. Another part of this clause presents difficulties. The proviso reads —
“Provided that the powers conferred by this section shall not be exercised without the consent of the aboriginal or half-caste, etc.”
We propose to insert after “exercised” the words “except in the case of minors”. I have known of instances of young children having been left considerable amounts of money, and the department has had no power to safeguard the money and it has simply been squandered. In some instances, sums running into thousands of pounds have been involved. If the aboriginal or half-caste…

[End of page 61]

says he desires to look after his own affairs, we have no redress under that section, but we think we should have control in the case of minors. A further paragraph should be added as follows:-
“Any person who fails to supply a statement of account when required by the Chief Protector s0 to do and any person who wilfully makes any false statement in any such statement of account shall be guilty of an offence against this Act.”
Still another paragraph is desired —
“The Chief Protector may expend or apply any money in his possession or standing to the credit of any aboriginal or half-caste for his maintenance education advancement or benefit.”
Moneys in the way of wages and from other sources come into our possession. We hold those moneys for our charges, and expenditure is incurred in looking after them, boarding them, clothing them, etc. Though we actually do it through necessity, we have no power to withdraw money from their accounts and use it for those purposes without obtaining their consent on each occasion. To do that is not always possible because the individuals concerned may not be near us; they may be absent in the country.

[End of page 62]

A O Neville’s Evidence Part 15

State Records Office of Western Australia
Microfilm
Acc 2922/1-2
Title: Transcript of evidence 1934
Item 1 & Item 2

Aborigines Royal Commission 005-3

Tuesday, 13^th March, 1934

H. D. Moseley, Esq., Commissioner.

AUBUR [sic] OCTAVIUS NEVILLE, Chief Protector of Aborigines, further examined:

55. BY THE COMMISSIONER: In continuing your evidence you were next to deal with the laws relating to aborigines and persons of aboriginal origin, and also to suggest amendments to existing legislation? — Yes. The Act we are operating under now, which is known as the Aborigines Act was passed in 1905, and since then there has been one small amendment to the Act, which was passed in 1911. The reason for the amendment in that year arose out of the findings of the Roth Commission. Practically all the findings of that Commission were given effect to long ago. The framers of the 1905 Act were naturally guided by the conditions that obtained then, but those conditions have entirely changed now. For instance, in those days it was presumed that the natives represented a people rapidly dying out. On the contrary it is now known that the natives are on the increase. There was a period when the number of aborigines in the State declined, but now they are undoubtedly on the increase. Even the full-blooded aborigines are showing signs of increase. The 1905 Act having been framed in the interests of those who were considered a dying people, naturally did not make provision for natives beyond the half-caste or the child of the half-caste, where such child was living as an aboriginal. Thus the aboriginal, the half-caste and the half-caste child were really the only people covered by the Act. Under conditions that exist today, that is manifestly absurd.

56. And the Act does not apply to all half-castes, but only to those who live with an aboriginal as wife or husband? — Under the Act those are considered to be aborigines. The definition of “half-caste” appears in Section 2 of the Act, and shows that it means any person being the offspring of an aboriginal

[End of page 52]

mother and other than an aboriginal father. Others who are dealt with in Section 3 are those who are deemed to be aborigines. That makes the quarter-caste child who is living as an aboriginal, an aboriginal under the provisions of the Act. That is the only way we can deal with the quarter-caste child. [crossed through] It will be noticed that even the half-caste who is over-age – we do not know what that age is exactly, but we take it to be 21 years – is not under the Act at all [end crossed through].

Yesterday I gave you some idea of the polyglot nature of the native population at the present juncture. While many of these people are living as natives in some respects under much worse conditions than the original natives did, legally they are not natives at all, and do not come under the provisions of the Act. We experience extreme difficulty in dealing with them. Time after time, while we know we have no legal power in the matter,
we have to take action in their own interests because we know it to be absolutely necessary for that course to be pursued. Because of that we have to bring many [crossed through] cases before the Childrens’ Court that otherwise would be dealt with under the provisions of the Aborigines Act. Some of the crosses are nearly aborigines, just sufficiently apart in blood from the aboriginal to place them beyond the pale of the Act. Ever since 1919 I have been endeavouring to have new legislation passed by Parliament. Time and again such proposals have reached Cabinet and as often have been rejected. One comprehensive Bill got as far as the Legislative Council in 1929 and was actually passed by that House. We were highly delighted when that happened, because where the aborigines are concerned, we might expect the Council to be the greater House of criticism. However, the Bill was thrown out in the Legislative Assembly, mainly, I believe, because it was near the end of the session and there was not sufficient time available for its provisions to be discussed. Since then an entirely new Bill has been prepared on modified lines, omitting a good deal of what was included in the original Bill. Those omissions were not altogether in accordance with my wishes, but were made simply in the expectation that it would enable the Bill

[End of page 53]

more easily to pass through Parliament. Certain very necessary provisions have been left out, but we may succeed in having then included later on.

57. When was the latest Bill framed? — It is ready now. In the original Bill that was framed to amend the parent Act, we made reference to some of the matters I mentioned yesterday, including the question of monetary transactions between natives and others, and also certain financial proposals that I will deal with later. I think there was also reference to the distribution of poison to natives. Those matters do not appear in the latest draft legislation. There was also the question of native customs which I proposed to include in the latest Bill, but which was not judged suitable by the Government and left out. I feel sure that if Ministers knew the position as I know it, they would not have left that phase out of the legislation. I submit the departmental file 100/25 (Exhibit No. 20) for the perusal of the Commission. It is voluminous and I do not expect you, Mr. Commissioner, to read through the whole of it, but there are certain minutes of mine that deal with the matters I have been discussing. On Page 177 you will find the amendments showing the proported revised legislation. That brings me to the consideration of the latest proposed Bill, which was prepared last year. It was drafted very carefully with the idea of eliminating anything that could be considered redundant and anything not absolutely necessary.

58. Section 2 of the original Act of 1905 defines certain things.For instance, it defines an aboriginal institution as one that is subsidised by the State. We proposed to alter that because some of the missions are not subsidised, and therefore, we suggest the insertion of the words “declared by the Governor to be an aboriginal institution for the purposes of this Act”. The definition of “district” sets out that it means a magisterial district. Magisterial districts have been so altered in the last 30 years and have been so enlarged that the definition is not suitable now.

[End of page 54]

They are not co-terminous with the police districts and the position is extremely awkward sometimes when proclamations are issued. We propose to alter that definition by providing that it shall also include any other area declared by proclamation to be a district under the act. We may desire to do certain things in a certain district. We might desire to make a certain area a small district in order to deal with some particular phase such as the elimination of tribal practises. Then we come to the definition of a half-
caste, which I have already indicated sets out that a half-caste is the offspring of an aboriginal mother and other than an aboriginal father. That in itself presents an avenue of considerable difficulty, because it is not necessary for the father to be a white man or even a European. He can be a person of half-colour, in which case the offspring, according to the definition in the act, will be a half-caste. As the definition stands now it is so involved that it is simply impossible to define a half-caste. Then again the definition in Section 2 does not altogether synchronise with the reference to a half-oaste in Section 3. We propose to delete the definition half-caste in the Act with a view to substituting the following: “Half-caste” means (a) any person being the offspring of aboriginal parents on either side and (b) half-blood descendants of such persons and any child one of whose parents is a half-caste as herein defined and which child is a female of any age or a male under the age of 21 years”. The half-caste, as defined by the Act was simply meant to be the progeny of the first union of white and black. There are hundreds of the second generation and hundreds of the third generation as well. Yet none of them, according to the definition, is a half-caste. But they are actually half-caste in blood, and can defy us and do defy us. A ruling was given in the Carnarvon Court some years ago when a half-caste in blood was charged with supplying liquor to natives or with receiving—I am not sure which—and he claimed he was not a half-caste within the meaning of the Act. The magistrate upheld his contention. The matter was referred to the

[End of page 55]

Crown Law Department and the Department upheld the view taken by the magistrate. Ever since then we have experienced great reluctance in launching proceedings under such circumstances, but not withstanding that we have had to take action time and again in the interests of the half-castes themselves. Evan now I doubt if the interpretation that we have embodied in the latest proposed Bill covers the coloured people I refer to. Personally, I do not think it does and it may be subject to further amendment.

[End of page 56]

A O Neville’s Evidence Part 14

State Records Office of Western Australia
Microfilm
Acc 2922/1-2
Title: Transcript of evidence 1934
Item 1 & Item 2

Aborigines Royal Commission 005-3

Monday, 12^th March, 1934

H. D. Moseley, Esq., Commissioner.

AUBUR [sic] OCTAVIUS NEVILLE, Chief Protector of Aborigines, sworn and examined:

[Part 1] [Part 2] [Part 3] [Part 4] [Part 5] [Part 6] [Part 7] [Part 8] [Part 9] [Part 10] [Part 11] [Part 12] [Part 13] Continued…

Many of the natives are quite capable of handling guns, and recognise the danger of having one about. Until the Firearms Act came into force certain provisions of the Aborigines Act covered the supply of guns to aborigines. That Act came into force on the 1st Jan, 1932, and repealed certain sections of the Aborigines Act, namely sections 47 to 51. I knew nothing about this until the Act became law. I then pointed out that an injustice was likely to be done to the natives by reason of the change, and this eventually led to a conference between the Commissioner of Police, or his representative, the Undersecretary and myself. The result of that conference is set out on page 15 of file No. 12/32 (Exhibit 17). Under the agreement arrived at, no native was to be refused a license because he was a native, or that he could not pay the fee, that the Chief Protector was to be advised of all applications received from natives, that if there was a refusal the reason was to be given to him, and that no licenses were to be issued in the Kimberleys. The date of the conference was the 28th Jan, 1932. I am sorry to say that the Police Dept have not carried out one clause of that agreement, except that the natives are being granted licenses free. I find from inquiry that the natives have lost half their licenses.

45. In what way do you mean?—Whereas under the Aborigines Act, 65 licenses were held in the previous year, the number dropped to 35 after the Commissioner of Police took charge.

46. Have these people applied for licenses and been refused?—Yes. I have a number of letters from natives, and I am constantly being appealed to, but cannot get the applications even considered. On principle, the police believe the native should not have a gun. Consequently, all sorts of excuses are made to prevent it. I have plenty of verbal evidence on the subject. I have no personal grievance over this, but point out that the unfortunate natives have lost another of their few privileges. The whole thing is confused, because in certain districts outside the limits of the…

[End of page 47]

Firearms Act a native may carry a gun if he wishes to, but under the Aborigines Act that was not possible. In the Kimberleys any native nay carry a gun if he wishes, whereas he could not do so before. The Act is so worded that it is intended to apply to whites only. The natives were never thought of. The latest proposal is to classify them as the Asians and Chinese in
Broome are classified, but it would be better to bring them back under the Aborigines Act. I agree that in principle only one authority should issue these licenses.

47. Is there any appeal from the refusal of the Commissioner to grant a license?—-I believe so. I have appealed departmentally in one or two cases.

48. Is there any constitutional authority to hear such an appeal?—To my knowledge, that has not yet been invoked. The adverse report of the police officer of the district is sufficient cause for refusing a license. I know of natives who have held a license for years, but they cannot get one now because the recommendation of the local constable is against it.

49. I wish now to deal with tribal customs. I desired to introduce a section into the amending Aborigines Act which will enable us to exercise some control over tribal oustoms. That would be done by districts. A tribal custom that is not objectionable in the Kimberleys would be very objectionable in the South-West. It is important that the dept should have power to prevent certain tribal customs in certain districts. Some of the natives in the South-West still have two wives, and this leads to all kinds of complications and trouble. Years ago, in the time of Lord Forrest, there was a proposal forcibly to prevent certain tribal customs. Lord Forrest said that it would not do to enforce anything of that kind then, but he approved of circulars being sent to all concerned asking them to use their influence with the natives to prevent these things from happening.

[End of page 48]

Unfortunately, the circular did not go out, and the file stops there. It is time we took a hand in some districts where these practices have gone to extremes. One practice which has the worst effect of all is that of promising infant girls as wives to elders. They are even promised before they are born. This leads to some old fellow getting for a wife a girl who has just reached the age of puberty. Possibly he already has two other wives, one old and the other middle-aged. You can trace practically every native murder to that cause. We have spent thousands of pounds in an endeavour to bring natives to justice for doing things which no one could cavil at. A young man comes along looking for a wife, and finds her attached to a hoary ancient and runs away with her. Then the trouble starts. There is a case before the Supreme Court to-day on that subject. In certain districts where the natives are civilised, or becoming civilised, we should have power to stop what is known as the practice of having a plurality of wives and the promising of infants as wives. This has had more to do with the decimation of the native races than anything else. Missionaries are up against it now. They find that some of their best girls are being filched away by some hoary ancient in the bush. I do not suggest we should interfere much with the practices of the bush natives in respect to their man-making ceremonies. At the same time, some of these things lead to blood poisoning and death, and we might suggest to the natives that we can carry out the operations far better than they can. If they want the operation of circumcision performed, we would be quite willing that it should be done by the nearest medical man. That would save untold agony to boys and obtain the same object. In course of tine it will be necessary to prevent natives from carrying out a certain operation known as Sturt’s terrible rite. This has very little effect…

[End of page 49]

…on the procreation of the species, because there are numbers of families on our stations where the fathers have been operated on, and children are being born year after year. Child marriages should be stopped. Very often the infant girl is taken away when too young. She becomes old at 20 and is past child-bearing when very little older. We should do what has been done in India by the British, prohibit child marriages. Young bloods of the South-West are imitating their fore-bears in this respect by trying to get hold of girls who are little more than children. I only ask that we should be given power in certain districts if possible to regulate this matter.

50. An absolute prohibition would be difficult, if not impossible, to get ?—Yes, and it would be unwise because the natives would be the first to resent it. In some districts they agree that it is time the thing petered out. There are young men on stations who have been born there and strenuously object to being operated on. They have to submit themselves to it, but dislike it intensely, and it is quite unnecessary in their case. I have had to prevent half-caste boys from being stolen away by aborigines for this business. We should have authority to stop it. With regard to exemptions, Section 63 of the Aborigines Act gives the Minister power to grant them. Some of the exemptions are too easily obtained. I would not exempt anyone in certain areas.

[End of page 50]

51. Is that section ever used?—Very often.

52. For what reason?—To exempt. We have quite a number exempted.

53. For what reason would they be exempted?—Because it is considered that they are able to live as a white lives. That is the only object of the exemption. The object of the aborigines is to be enabled to enter hotels, as a matter of fact, and obtain drink.

54. Have you ever known an exemption in the case of a full-grown aboriginal?—I have known of one or two cases. I think aborigines stand up to it better than half-castes do. My point is that in the Kimberleys exemptions should be prohibited until we can straighten out the matter of legislation and the classes of people. There is a considerable danger in exemption natives in the far North and in places like Broome. While there are some people who constantly support the natives in this respect and try to obtain exemptions for them, I think it is quite a mistake. I agree that when we have got the Act straightened out and the people concerned are, shall I say, made amenable to legislation, as they should be, then, if any of them can prove that they can live as a white, they should be exempted, but not before. Take a half-caste in the Kimberleys, and there are quite a number of adult half-castes in the Kimberleys doing stock work. Suppose a half-caste is exempted and placed with 20 or 30 native stock boys. His temptations are too great. He abuses the women, and lords it over the male aborigines. That position, in my opinion, will only lead to trouble. I prefer the exemption to be a highly prized privilege obtainable only when a native or half-caste can prove beyond doubt that he is capable of living up to it. I am handing in two volumes of reports by the Chief Protector (Exhibit 18), also the report of the Chief Protector for 1933 (Exhibit 19).

THE COMMISSION ADJOURNED. 12-3.34.

[End of page 51]

Item 1909/49 Timms

State Records Archive
Consignment: 652
Item: 1909/0049
Title: Recognisances. Sundry – H.O. Timms, Darlot Bros, A. Murray, Cheeky re

Keywords: Mardie Station, Harry Timms

[Letter]
Mardie Station, Onslow
1 Jan 1909
To: Chief Protector Aboriginals, Perth
Dear Sir,
There are two half caste aboriginals here, one a girl about sixteen and a boy about fourteen. I would like to take these two south with me.
I will be leaving the station, about 1st week in February.
I would like reply re this matter as soon as possible.
I desire to make servants of these two aboriginals and pay a small wage and would like to see them better cared for than knocking about a nigger camp.
My wife has taken a fancy to the girl and I could make the boy very useful.
I will be living down south after February near Broomehill.
I am not certain of conditions to be fulfilled in connection with half castes but would gladly comply with any. The above mentioned half castes have been on Mardie about three years.
The girl was born on the Ashburton at Forests or De Pledges and is married to a nigger here but I must say it seems a great shame to see her knocking about amongst niggers.
The boy was born at Chugmarra adjoining Mardie in O’Gradys time since purchased by Mardie.
As far as I remember the boy would be about 3 years old at that time and was then in Onslow for some years. Mother since dead. Supposed fathers of above one at Ashburton, other at Marble Bar.
Yours faithfully,
H O Timms

[Memo]
Mr Pechell
Wire permission to bring these two half castes down to Perth under the usual conditions.
C F Gale

[Telegram]
18.01.09
To: H O Timms, Mardie Station, Onslow
Permission bring two half-castes south granted provided both and native husband consenting parties and that you sign recognisance for their return presume your wife accompanies you. See Barry Onslow, sign recognisance.
C F Gale

[Telegram]
18.01.09
To Barry, Protector Aborigines, Onslow
Timms Mardie Station has permission bring two half-castes South provided all parties consent and that Timms signs recognisance before you for return natives and guarantees sufficient money presumes Mrs Timms accompanies husband. Send copy recognisance.
Chief Protector Aborigines

Katitjin Notes:

Timms, Harry Oliphant (1870-1942)
Harry Oliphant was born in Victoria, son of a station owner, and came to WA with the Coolgardie gold rush in 1893. With A R Richardson, his wife’s father, he was joint owner of Mardie Station, near Roebourne, before moving in 1909 to develop a stud sheep farm in Gnowangerup. He was a JP in Roebourne until 1909, and was “remembered as a man among men – kindly and genial – an honourable gentleman.” However, he was clearly condescending in his attitude towards Aboriginal people, whom he referred to as “niggers.”

A O Neville’s Evidence Part 13

State Records Office of Western Australia
Microfilm
Acc 2922/1-2
Title: Transcript of evidence 1934
Item 1 & Item 2

Aborigines Royal Commission 005-3

Monday, 12^th March, 1934

H. D. Moseley, Esq., Commissioner.

AUBUR [sic] OCTAVIUS NEVILLE, Chief Protector of Aborigines, sworn and examined:

[Part 1] [Part 2] [Part 3] [Part 4] [Part 5] [Part 6] [Part 7] [Part 8] [Part 9] [Part 10] [Part 11] [Part 12] Continued…

41. I shall refer to the system of protectors when dealing with the administration of the department. I emphasise the absolute necessity for Inspectors over and above any protectors we may have. If we had sufficient settlements, we should need only two inspectors — a medical man in the North and another man in the lower part of the State. The cost of an inspector and his car would be about £1,000 a year, but a medical man would cost £1,200 to £1,500.

[End of page 42]

We employ managers on our own stations on inspection work and their duties are too important to enable them to go very far afield. There is nothing more important than the question of inspectors. It is only by appointing inspectors that we can find out how natives are being treated and if they are being abused in any particular place or station. Natives have become friendly with inspectors. They will often open the eyes of an inspector to the things that are happening. This they would never do for the ordinary protector, especially if that protector happened to be a policeman. The few years that I had a travelling inspector made a very great difference in the cleaning up of things which had been wrong for many years. There is a lot of hearsay in this business and there in also a certain amount of ill-will, perhaps a disgruntled or a dismissed employee will say all kinds of things against his employer, but one cannot possibly accept these ex-parte statements; you have to go to the spot to hold an inquiry.

42. In the matter of reserves, I have supplied you with a map showing where they are situated. The reserves total 24,153,016 acres, but it is only fair to say that one of those reserves, on the boundary of South Australia and Western Australia is over 44,000,000 acres in itself. That still leaves over 10,000,000 acres of other reserves which in itself amounts to a considerable slice of country. Most of the reserves are in the far North. It has been stated more than once lately that there are no reserves elsewhere. That is entirely incorrect; these reserves are all over the State. In the South, naturally they are smaller than in the N0rth. There are large areas lying idle at the present time because we have no use for them at the moment. There are large areas held in the Kimberleys for future development, and I think they will be used at no distant date. We have provided a chain of reserves in the far North, recognising the tribal boundaries of the people. After obtaining the advice of our local officers, scientists, missionaries, and anyone capable of giving advice, these reserves have been deliberately placed in particular tribal areas. It is possible that some of them are bigger than they…

[End of page 43]

…need be, but that can be remedied later. In my opinion, at least two settlements in addition to those we now have will be required in the Kimberleys, particularly in the area beyond the Leopold,Ranges. Some year or two ago I asked the Government to have certain of those reserves classified as Class A, but Cabinet refused.

43. Have you any Class A reserves? — I am not sure about Moola Bulla; I believe that is a Class A reserve. My object, of course, was to reserve certain areas for natives for all time. In the absence of such a provision, we never know when these reserves may be taken away from us. Already I have had considerable difficulty in safeguarding at least one of them. Settlement has taken place and after a vigorous assault on the position I succeeded in having it cancelled. Settlement — promiscuous and unwarranted — is liable to take place on any of the reserves and unless they can be made Class A reserves, I fear for their future. The Commonwealth Government recognised this position in the Northern Territory. One in particular has been found capable of producing gold and everybody has been warned off it. The reserve has been made inviolable. I do not claim that all these reserves should be Class A, but certain of the areas chould definitely be Class A, and I am going to put in a file showing which areas should be so reserved. The file in No. 133/26, page 33 (Exhibit No. l6). Rather than forbid people to enter upon a reserve it is possible that natives could be excluded from entering what was originally intended to be their own reserve . Take for example the reserve on the border, that is, the reserve to which expeditions have penetrated lately in search of gold—Lasseter’s Reef, and so forth. All who have gone there have been obliged to get permits from us, and we have also compelled them to enter into a bond that they would observe certain conditions laid down by us. If there should be payable gold in that area on leases acquired by whites, it would be far better to exclude the native from it altogether rather than let him hand around the diggings. A permanent reserve should be definitely proved before it is made a reserve. We know enough about the particular areas that we…

[End of page 44]

…want to have made Class A, to enable us to say that they will not be wanted for anything else except pastoral or agricultural settlement. Another fallacy is that any sort of land will do for a native reserve. Any sort of land will not do for this purpose. If a native is to be made self-supporting, how are you going to bring that about if you have no land which they can work. The land must be capable of producing the natives’ requirements. Therefore, the department is entitled to ask for good land in order to show the natives what can be done with it. Some people have suggested that we should put the southern natives in all sorts of undesirable positions such as Bremer Bay or other places on the coast where there is not good land or anything else. In such circumstances we cannot be expected to turn out decent citizens; it is quite impossible to do so. I urge that the reserves in the far North be made Class A as soon as possible. In that particular area there are between 7,000 and 10,000 natives, probably nearer the 7,000 or less. There are quite enough uncivilized natives left there to make a sanctuary for them absolutely necessary. If that area should ever become
settled by a chartered company, then unless the department gets in ahead and pacifies the natives by arranging settlements for them, the state of that area will be infinitely worse than it has ever been in the past from the point of view of trouble between the whites and the natives. The natives up there are not like the cowed people of the south; they are fine upstanding warriors and they will show fight to protect their interests.

44. I now desire to allude to the question of firearms. The natives throughout, particularly from Kimberley southwards, have always been allowed to carry guns—that is the well-behaved natives, and they have always had a large number of dogs. Their having both firearms and dogs has been objected to by the polios all along the line. The natives in the South now find themselves without dogs, not that the dogs are much good in any way because there is not such brush kangaroo in the South West for then to go after,

[End of page 45]

but if they have a rifle, and they are good shots, they can generally manage to get something to add to their meat supply. I do not think we have ever had a tragedy as a result of a native carrying a gun, that is to say, a tragedy between a black and a white. There was one unfortunate youth who went mad and shot his brother. But that is another story altogether.

[End of page 46]

A O Neville’s Evidence Part 12

State Records Office of Western Australia
Microfilm
Acc 2922/1-2
Title: Transcript of evidence 1934
Item 1 & Item 2

Aborigines Royal Commission 005-3

Monday, 12^th March, 1934

H. D. Moseley, Esq., Commissioner.

AUBUR [sic] OCTAVIUS NEVILLE, Chief Protector of Aborigines, sworn and examined:

[Part 1] [Part 2] [Part 3] [Part 4] [Part 5] [Part 6] [Part 7] [Part 8] [Part 9] [Part 10] [Part 11] Continued…

We have 173 of these accounts in operation carrying a balance of over £2,300, and I have invested on behalf of those youngsters something like £2,400. They are quite capable of saying their money and knowing what to do with it, provided there is someone to guide then in their earlier years. That is just the nucleus of what I hope will be done as time goes on.

33. Before lunch, you asked for Dr. Cook’s report.
I have not the original but I have a copy which the Commonwealth authorities sent to us. It begins on page 235 of Medical and Public Health file 1765/23 (Exhibit 13).

34. That brings us to G, the question of missions.
In every annual report issued by me there is a statement showing the number of missions, something of what they are doing, and where they are situated. Altogether there are 11 places where missionaries work. There are six organised missions in the North, five of which are subsidised. There are four in the South, not subsidised but two of which are used at ration stations by the dept. In years gone by there used to be terrific confusion in regard to the subsidies of missions, and for years my predecessor tried to find a settlement of the difficulty. However he did not succeed and when I came I found that some missions were receiving inordinate amounts, while others, carrying out practically the same work, were receiving very little. So I sought to get the thing on a proper basis. We did that in time by first of all deciding the amount it took to keep an inmate in a mission. That amount is based on the accepted standard in the North which is £10 and in the South £14. But that implied that the mission, being a philanthropic institution, would assist upon keeping those people. Moreover, some missions were settled on very large native reserves and were run as cattle stations, in addition to their other activities. It was considered that those missions were in a better position to help themselves than others which had no land. So it was arranged that the subsidy which the State…

[End of page 37]

…should pay to a mission which had a large area of land granted by the State should be £5 per head per annum, the mission to pay the other £5; and in respeot of those missions which had no land to speak of the amount was fixed at £7. That is the existing system. In order to get at this, it was necessary that every mission should be inspected, so that the dept should be satisfied that the inmates and children at the mission were proper subjects for Govt relief. Those missions as far as possible were inspected and it was quite evident that a number of the inmates should not be receiving Govt relief at all; in other words, they were able-bodied and quite capable of getting work. Inspections were made and the inmates were all listed, and each mission was provided with a subsidy on the monetary basis I have mentioned, in accordance with the inmates it was looking after who otherwise would be the care of the Govt. Naturally, that created considerable divergence in respect of the grants being made; it amounted to this, that the greatest pleaders got the most. However they have not been able to do that since the system was altered. I put in a return which shows what the missions have had from the State since 1898. It begins in Mr. Princep’s time and comes down to 1933 (Exhibit 14). In that time the protestant missions, numerically stronger than the Roman Catholic, have received £29,986 or 53.98 per cent of the money, while the Roman Catholic missions have received £25,569, or 46.02 of the money. I mention that because I have been accused of partiality, a defect I have studiously avoided. The figures speak for themselves.

[End of page 38]

As in other matters, we are awaiting amendments to the Act in order to frame regulations designed to assist us in respect to the work of the missions. There are no such regulations at present. While the Chief Protector considers Inmates of missions to be subject to his care, as are natives elsewhere, he has no authority to demand to be supplied with information or to insist upon reforms and alterations. Missions should be subject to departmental supervision. They should submit annual reports. The Minister should have power to issue a permit or permits to persons desiring to embark on missionary work, either individually or as institutions. Trouble arises from the fact that missionaries are unsuitable and entirely ignorant of the natives or of what they may expect to find in the mission field, and consequently they fail. In the event of a mission not doing good work, the only remedy is for the department to take it over, if it is willing, or to cancel the reserve on whicb it operates. Neither of these courses has so far been adopted, though we have temporarily managed missions at the request of the authorities.

36. I consider that Government stations and settlements are preferable to missions because, and mainly because, Government authority is recognised above all things by the natives. I have no objection whatever to missionary effort at settlements and stations under departmental regulations. The mission authorities are so hampered by their efforts to get money and do the practical work that there in not much time left for the spiritual side. Still, in view of our own ineptitude, I do not wish to cast stones at the missions. The department has so far been unable to afford a fitting example of what a settlement should be as a guide to the missions.

37. I do not agree with all that the missions do, such as curtailing the liberty of the subject, interfering with tribal customs, marrying against tbs wishes of the people, or consummating unsuitable marriages. Some of those matters we propose…

[End of page 39]

…to regulate by law. At the same time, it cannot be denied that the missions are doing splendid work of a charitable kind, much of which the State should have been doing. Much improvement is needed from the medical point of view. Personally I do not oppose the teaching of the ethics of Christianity. I consider that youngsters who are to go out to work amongst us — we profess to be a Christian nation — should also be taught something of the same Christianity in which we profess to believe in order that there may be some sort of similarity between their ideas and ours, quite apart from the moral side, which is very important.

38. The multiplicity of denominations confuses the religious issue in the mind of the native. There are seven or eight denominations doing missionary work here and the position might be improved by adopting a standard method of imparting the tenets of the Christian faith as approved by the State, and using that standard throughout. I believe that some of the religious instruction might be definitely harmful, because it is misunderstood. I understand that the missionaries in India and elsewhere are coming to the same conclusion. The mere making of grants to missions is useless. Some missions are doing good work in full harmony with the department and the department’s wishes. Others adopt the attitude that the less the department knows about their doings, the better. I only wish to add that in my opinion missionary workers should be married people and that husband and wife should be living happily together. The psychology of the native mind demands this. We have discovered it on our own stations and all our managers, and generally those second in charge, are married men living with their wives. I submit File 52/29, Regulations for the control of Missions, pages 29 – 31 (Exhibit 15).

39. Sub-paragraph (h) “Trial of aboriginal offenders” will be dealt with when the subject of legislation is considered.

[End of page 40]

40. Speaking generally on paragraph 1, I have mentioned the necessity for a medical inspector. Years ago, before my time, there were two inspectors in the department who were constantly visiting the stations to ensure that the native people were being looked after properly and were not abused in any way. Those inspectors were dispensed with and for years we had no one at all until I succeeded in getting one man appointed. He was with us for a year or two and then his services had to be dispensed with because there was no money with which to pay him. Obviously, the Chief Protector cannot be traversing the State all the time. He can make only a few journeys in the year, and it is quite impossible for him personally to know what is going on on the hundreds of stations and in the many places where natives are employed. His protectors are mostly in the towns and do not supply him with the information he most needs. The only way to overcome the difficulty is to have travelling Inspectors always going around. In addition to the medical man for whom I have asked, there should be another man in the North, and a man for the north-western districts and, if necessary, the goldfields. The south I can manage myself. At considerable expense of time and effort I have traversed the State from Wyndham to Eucla more than once. While I am away, things happen at head office that one is not in a position to rectify. Too much time is occupied in travelling. Some people have argued that the Chief Protector should live in the North. The absurdity of that contention is demonstrated by the distribution of the natives. There are 9,000 odd in the Kimberleys, nearly 4,000 in the North-West and Murchison, and over 5,500 on the goldfields snd in the South-West, so they are fairly evenly distributed. The ideal would be to have a deputy in the north — the Act makes provision for deputies — or adopt my plan to alter the name of the department and the Chief Protector, and have district commissioners and, under them, assistant district commissioners, and so on, as they have in other British colonies and dependencies.

[End of page 41]

katitjin

Western Australian Aboriginal History Records

“Right of Occupancy”?

CHAPTER 15.

HOW THE LAWS OF ENGLAND AFFECT THE NATIVES.

A O Neville Evidence Part 18

Aboriginal woman and half-caste son of late John McKenzie

A O Neville’s Evidence Part 17

A O Neville’s Evidence Part 16

A O Neville’s Evidence Part 15

A O Neville’s Evidence Part 14

Item 1909/49 Timms

A O Neville’s Evidence Part 13

A O Neville’s Evidence Part 12