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:
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…
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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…
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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…
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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.
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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…
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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…
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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.
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