State Records Office of Western Australia
Title: Transcript of evidence 1934
Item 1 & Item 2
Aborigines Royal Commission 005-3
Tuesday, 13th 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
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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
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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.
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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
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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.
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