BY PETER PRINCE
‘[I]f you have hundreds of years of racial discrimination, it’s likely that the vestiges of that discrimination linger on – and we should acknowledge that and own that’ – President Barack Obama
Emelda Davis of the Australian South Sea Islanders Association says ‘we have a long way to go for the successful establishment of the Islander people within that of the great nation of Australia’. Australia’s treatment of its South Sea Islander population (also known as ‘Pacific Islanders’ or, more disparagingly, ‘kanakas’) is a sorry example of the failure of law. The consequences of this failure are still felt today. Despite Commonwealth recognition in 1994 as a disadvantaged ethnic group, it has been observed that Islanders in Australia ‘remain marginalised, facing the ongoing consequences of cultural kidnapping, identity, loss of family and severe lack of government services in education and well-being’.
This post discusses how the High Court of Australia, in a rushed and defective judgment in 1906, ignored centuries of established law and wrongly endorsed the expulsion of thousands of Australian Islanders under the ‘aliens’ power in the Constitution. It explains how in their previous political careers the judges had been leading advocates for expulsion of the Islanders, then on the High Court authorised a mass deportation they had long regarded as essential for a White Australia. The post explains the lack of analysis in the High Court’s judgment, showing many Islanders legally belonged as British subjects and should not have been deported.
Incorrectly labelled as ‘aliens’
A major cause of the suffering of South Sea Islanders was their wrongful labelling as ‘aliens’ in nineteenth and twentieth century Australia, where they belonged as much as other settler groups. In Robtelmes v Brenan (1906) the High Court authorised the expulsion of the South Sea Islander community under the ‘aliens power’ (s 51(xix) of the Constitution). The case, however, was decided on incorrect foundations. Many Islanders who were the subject of the expulsion were not ‘aliens’ under the law. Moreover each of the judges had a conflict of interest in the matter before them. Yet it continues today to be cited as a foundational authority in support of the Commonwealth’s sweeping power to exclude, detain indefinitely without trial and deport ‘aliens’.
Islanders who escaped expulsion were further targeted as ‘coloured aliens’ under Queensland’s extensive (but now forgotten) dictation test legislation, excluding them from any meaningful economic or employment opportunity.
The background to Robtelmes v Brenan (1906)
Between 1863 and 1904 around 62,000 men, women and children were recruited from Pacific islands to work in Queensland. As Davis says, they ‘were ruthlessly recruited (blackbirded) to serve in the most appalling conditions as plantation workers in the sugar industry of Australia’. Figures tabled in the Queensland Parliament in 1877 show that less than half returned to their home islands. By the turn of the century Pacific Islanders formed a permanently settled community in Queensland.
After Federation the new Commonwealth Parliament passed the Pacific Island Labourers Act 1901 to expel the entire Islander community in what has been described as ‘one of the cruellest acts in Australian history’. The Museum of Australian Democracy describes the law as part of a ‘package of legislation which marked out the racial boundaries of the new nation’. Islanders found in Australia without a labour agreement before the end of 1906 could be brought before a court of summary jurisdiction and deported. After that date they would be removed by the Minister for External Affairs. Henry Reynolds has documented that several thousand Islanders were expelled from Australia in 1906-07. Kay Saunders explains that some gained exemption allowing them to remain, but the deportation was, according to Reynolds, ‘a traumatic event’. Tracey Banivanua-Mar explains that it ‘uproot[ed] settled communities … (with) a presence in Queensland for upwards of twenty years’.
As the National Archives file on Robtelmes shows, the High Court proceedings were conceived, heard and finally determined in less than a fortnight. On 21 September 1906, Police Magistrate R A Ranking of the Court of Petty Sessions, Brisbane, exercising federal jurisdiction, ordered the deportation of Mr Robtelmes as an Islander found in Australia with no current labour agreement. Robtelmes, a native of Vanua Lava in the New Hebrides, had arrived in Queensland in 1897. The prosecution agreed not to enforce the expulsion order until the High Court had considered the matter. There is no indication from the file that Robtelmes had any interest in the appeal. Instead it appears the Commonwealth was seeking an endorsement from the High Court of the validity of expulsions under the Pacific Island Labourers Act.
Sitting in Brisbane, the High Court heard arguments in the case on 1 October 1906, a mere ten days after Magistrate Ranking issued his deportation order. In a judgment handed down the very next day, the High Court (Chief Justice Griffith, Justice Barton and Justice O’Connor) unanimously upheld the deportation of Mr Robtelmes.
Chief Justice Griffith appreciated that the case before him was not just about Robtelmes but a test of the Commonwealth’s power to expel Pacific Islanders generally. As the Brisbane Courier reported, ‘the Chief Justice said the case was one of considerable importance, and they would consider their judgment, which would very likely be given in the morning’. As the same paper reported the next day:
The court considered that…legislation with regard to Pacific Islanders came within the authorisation of the Constitution Act. It followed, therefore, that the order for deportation in the case in question was declared to be valid, and generally the power of the Commonwealth to deport Kanakas from Australia was affirmed. (Emphasis added)
More than anyone else, Griffith had the political and legal background to enable careful consideration of the status of Pacific Islanders. The Pacific Islander issue was central to his political life, especially as Queensland Premier from 1883 to 1888 and 1890 to 1893. As Douglas Graham said in a 1938 lecture about Griffith, apart from defeating the power of the ‘squattocracy’, his other great political struggle concerned ‘White Australia, or…the Kanaka question’. As Griffith himself said in 1891 during a meeting of the Federal Council of Australasia:
I have probably had more experience than any man in Australia of the administration of the law relating to the Pacific Islanders, and I can speak with some knowledge of the subject.
But in Robtelmes Griffith said merely that expulsion under the Pacific Island Labourers Act was a valid use of the ‘aliens’ power in s 51(xix) of the Constitution because:
What is the status of Pacific Islanders? What are they? They are aliens: that is indisputable. Not only are they aliens, but by the law of Australia, so far as I know it, it is impossible for them to become anything else. (Emphasis added)
The Chief Justice offered no analysis to support his assertion that all Pacific Islanders were ‘indisputably aliens’. He was correct when he said it was impossible for Pacific Islanders who were aliens in a legal sense to be naturalised under the law applying in Australia. Aside from naturalisation through marriage, Queensland’s Aliens Act 1867 did not allow Pacific Islanders to become subjects by naturalisation. And when the Commonwealth assumed responsibility for this area, naturalisation of Islanders was expressly prohibited by s 5 of the Naturalization Act 1903). But otherwise Griffith ignored the ways Islanders may have been British subjects – or at least not aliens – under the common law.
The Court falls into error
The guiding principle for legal membership of the British Empire was laid down 300 years before in Calvin’s Case (1608) by the revered champion of the rule of law, Sir Edward Coke, who declared ‘they that are born under the obedience, power, faith, ligealty, or ligeance of the King, are natural subjects, and no aliens’. As the High Court affirmed in Singh (2004):
There is no doubt that after Calvin’s Case, at common law, subject to exceptions for children of foreign diplomats and children of occupying armies, any person born within the British Dominions (whatever the nationality of that person’s parents) was a natural‑born British subject. (Emphasis added)
As Sir John Salmond (inaugural Professor of Law at the University of Adelaide) explained in 1902:
He may be by blood a Frenchman or a Chinaman, but if he first saw the light on British soil he is a British subject. Conversely if he is born beyond the boundaries of the empire, he is judged an alien, though he may be an Englishman by blood and parentage.
This meant that all those living in Australia born as subjects in the United Kingdom or a British imperial possession or naturalised in an Australian colony were ‘British subjects’ and could not – by definition and at least until 26 January 1949 (the date on which the Nationality and Citizenship Act 1948 (Cth) creating Australian citizenship came into effect) – be legally treated as ‘aliens’ in the various Australian jurisdictions. (With an exception before 1 January 1904 in the case of people naturalised in an Australian colony or State whose naturalisation had no effect in the other Australian jurisdictions).
A 1902 petition to King Edward VII from the Pacific Islander community protested that:
Many of us have children, who for years have attended the State schools of Queensland and the Sunday schools. They are free born, and we thought that we had attained at least such freedom as is enjoyed by other coloured aliens who came to Australia.
Queensland’s 1901 census recorded nearly 600 locally born Islander children. There were also adult Islanders who were natural-born subjects and therefore not ‘aliens because of their birth in Queensland. A 1906 Royal Commission heard testimony, for example, from one Noah Sabbo who had been born in Queensland and did not want to be deported. In 1901 Queensland Home Secretary Foxton drew attention to the British subject status of some ‘Pacific Islanders’. Foxton said his political opponents:
… spoke of coloured aliens when many of them, as a matter of fact, were British subjects. With regard to the Pacific Islanders, he would like to point out that a large number of those who were included in that category had not been brought to Queensland under the Pacific Island Labour Act, but were men who had drifted in from the Islands of the Torres Straits. (Emphasis added)
The Torres Strait islands were formally part of Queensland, having been annexed in 1879. Any so-called ‘Pacific Islander’ from there was a ‘natural-born’ British subject and could not be an ‘alien’ in a legal sense. A State Government list available in the archives entitled Coloured labour and Asiatic aliens in Queensland confirms that Torres Strait Islanders were incorrectly labelled as ‘coloured aliens’. It also shows that Islanders born on mainland Queensland were wrongly given this status, including a man described as a ‘Knaka’ [sic] born in Brisbane in 1868 who had ‘lived in Queensland since birth’, as well as eight members of an extended Islander family aged one to 39 all born in Bowen or Ayr in north Queensland.
The 1901 census also recorded some 300 Islander men and 200 women who had married local residents. Under the Aliens Act 1867 (Qld), a woman who married a British subject acquired subject status herself and moved beyond formal ‘alien’ status. This rule remained unchanged after Federation(see s 9 of the Naturalization Act 1903 (Cth)).
The alien status of Pacific Islanders born outside Australia was also – contrary to Chief Justice Griffith’s assertion – very ‘disputable’.
Pacific Islanders came from locations under varying degrees of British control in the period before 1906. Those from British colonies such as Fiji and British New Guinea (after 1888) clearly had British subject status. The legal status of Islanders from British protectorates – including the Solomon Islands, British New Guinea (1884 to 1888), the Gilbert Islands and the New Hebrides (at least until 1878) – was more complex. In the case of the New Hebrides, there was the further complication of joint control by France and Britain from 1878, not to mention its early history as part of the colony of New Zealand.
The inhabitants of British protectorates were the exception to the common law rule that the world was divided into ‘subjects’ and ‘aliens’. In Re Ho (1975) the South Australian Supreme Court held that a man from the British protectorate of Brunei was neither a British subject ‘nor, for many purposes, anyhow, an alien’:
… he possesses some, but not all, of the status of a British subject. He possesses at least so much of it as results from his not being an alien for the purposes of the nationality legislation. And it has been said by an eminent authority that “for the purposes of international law the distinction between ‘British subject’ and ‘British-protected person’ is irrelevant”. (Citations omitted)
In 1948 British and Australian legislation accepted that people under the protection of the Crown were neither subjects nor ‘aliens’. While not in force when Pacific Islanders were expelled from Australia, these statutes recognised that there was an existing relationship between Great Britain and protectorates such as the Solomon Islands and the condominium of the New Hebrides which justified acceptance of their inhabitants as beyond ‘alien’ status.
In Robtelmes, none of this concerned the High Court. Chief Justice Griffith and the other judges looked in a cursory way at the law concerning ‘aliens’. Justice Barton said the Commonwealth had power to legislate for the deportation of Pacific Islanders under ‘the 19th sub-section of sec. 51’ (the ‘aliens power’):
… if the power to legislate exists with respect to the conditions of entry or residence of the subjects of civilised powers, it would be idle to attempt to deny that it is also included with respect to Pacific Islanders. (Emphasis added)
As this statement indicates, Barton wrongly thought a ‘Pacific Islander’ could not be a ‘subject of a civilised power’ such as Great Britain. Justice O’Connor also said expulsion of Pacific Islanders was valid under ‘the power to legislate with regard to aliens’. But he did not refer specifically to section 51(xix) of the Constitution. Broader history suggests he believed Pacific Islanders were ‘aliens’ because of their ‘race’, so incorrectly thought the relevant authority was the ‘races power’ in section 51(xxvi). In the 1898 convention debate on the ‘races power’, O’Connor (and other delegates) wrongly described people of ‘another race’ as ‘aliens’:
I think it is generally admitted that there should be uniformity of law with regard to the races for whom it is necessary to make special laws…Otherwise one state may deal with some particular class of aliens upon specially favourable terms, the effect of which would be that aliens from all parts of Australia would congregate in that state. (Emphasis added)
As a Senator in 1901, O’Connor employed similar language to describe the background to the Immigration Restriction Bill:
If it is found that, in carrying on the business of the Commonwealth, it is necessary to make special laws dealing with any particular class of coloured aliens, there will be power to do so under sub-section (26) of section 51 of the Constitution [the ‘races power’].
In the same way, O’Connor in Robtelmes identified Pacific Islanders as ‘aliens’ because of their ‘race’:
…before the establishment of the Commonwealth several of the Australian Colonies had passed Acts for regulating the admission of aliens into their several territories…Those Acts…dealing with aliens remained in force …until the Parliament of the Commonwealth entered the same field …and in regard to Pacific Islanders the Commonwealth legislated by the Act which is now under consideration. (Emphasis added)
As with the decisions of his two colleagues, there was no analysis in O’Connor’s judgment as to whether Mr Robtelmes or the various groups of Pacific Islanders to be expelled from Australia were ‘aliens’ in a legal sense. In terms of the specific case before the Court, neither Griffith nor the other judges mentioned where Robtelmes came from, nor did they examine the colonial history of the New Hebrides or how that might have affected the Commonwealth’s power to deport him as an ‘alien’.
Conflict of interest
In the 1866 case of R v Rand, the Court of Queen’s Bench decreed that ‘wherever there is a real likelihood that the judge would, from kindred or any other cause, have a bias in favour of one of the parties, it would be very wrong [for] him to act’. In late 1901 Barton, as Australia’s first Prime Minister and O’Connor, as leader of the government in the Senate, secured the passage through Parliament of the Pacific Island Labourers Bill. Barton told the House of Representatives that:
This measure… embodies the policy, not merely of the Government, but of all Australia, for the preservation of the purity of the race and the equality and reasonableness of its standard of living… I hope to be able to say before this year closes that Australia will have this measure to accompany the [Immigration Restriction Bill] which we had in committee yesterday, the two together being not merely the realization of a policy, but a handsome new year’s gift for a new nation.
When one MP queried whether the Commonwealth had authority under the Constitution to expel Pacific Islanders, Barton explained how s 8(1) of the Bill – the provision later challenged in Robtelmes – would operate, stating:
I think we have the power, and … I will take the risk. It is clear that no Pacific Islander ought to be in Queensland after 1906.
In Robtelmes Barton sat in judgment on the legislation he had introduced, supporting the view he had expressed in 1901 that the Commonwealth had the constitutional power to expel Pacific Islanders from Australia.
As already noted, removal of Pacific Islanders from northern Australia was a driving force of Samuel Griffith’s political life. As Premier, Griffith declared to the Queensland Parliament in 1884 that ‘when the time had arrived for the prohibition of black labour, the Government would take the responsibility for doing it’. As he said in 1894:
If, then, tropical Australia is to be inhabited by a coloured population, not only will a new form of government be required, so that there will be two distinct and probably antagonistic forms of government on the Australian continent, but ultimately the standard of comfort for the working population of all Australia will be in danger of being reduced to that of the coloured races. If, on the other hand, the faith of those who believe that tropical Australia can become the permanent home of the white races turns out to be well founded, a future which most people will regard as fairer and happier is open for that part of the continent …
In 1901 Prime Minister Barton highlighted in the Parliament Griffith’s central role in attempts to replace Islanders with white men, especially in the profitable sugar industry. In Robtelmes, now as Chief Justice, Griffith returned to – and asserted the validity of – the path that he and the colonial government of Queensland had followed for over two decades.
Continued use of Robtelmes
The legacy of Robtelmes v Brenan has proven long. It continues to be wrongly cited as a founding precedent on the extent of the ‘aliens power’ in s 51(xix) of the Constitution, including in significant recent cases such as Ruddock v Vardalis (2001) (the Tampa case) and Plaintiff M76/2013 v MIMAC (2013) (indefinite detention case). According to Justice Drummond of the Federal Court in Li (2000), citing the High Court in Chu Keng Lim (1992), ‘Robtelmes remains good law’. There has been no judicial recognition that the High Court in Robtelmes manipulated the law to facilitate a central element of the White Australia policy of the new Commonwealth government – the banishment of Australia’s South Sea Islanders.
Pacific Islanders and the dictation test
For Pacific Islanders who avoided expulsion and remained in Queensland, the prospects were bleak. Along with Chinese settlers and other non-Europeans they were excluded from key industries and occupations by the State’s pervasive alien and dictation test laws. The Land Act 1910 and Leases to Aliens Restriction Act 1912 prevented ‘aliens’ from owning land or leasing more than 5 acres without passing a dictation test in any language the Secretaries for Agriculture or Public Lands respectively might direct. Government Ministers claimed the term ‘alien’ was used merely in its non-racial legal sense. Together with the education or ‘dictation’ test – borrowed from the Commonwealth’s immigration laws – these ostensibly neutral mechanisms complied with Imperial policy against open discrimination on the face of high profile legislation. But the Queensland Government publicly stated the racial basis of these laws. In 1921 the Secretary for Agriculture declared in Parliament that ‘white men … will be exempt’ from the dictation test. As one of his parliamentary colleagues said, only ‘Asiatics or persons of Polynesian [sic = Melanesian] origin’ would be excluded by the test.
Wrongly labelled as aliens, Pacific Islanders were barred from the sugar and banana industries, the main sources of employment in north Queensland. In 1913 Rockhampton’s Morning Bulletin reported that ‘the coloured alien who has been growing sugar is to be retired from this branch of agriculture’. A dictation test was also introduced for the banana industry. As a member of parliament said, the legislation addressed ‘a very pronounced danger – coloured aliens growing bananas’. The effect on the remaining Islanders was cataclysmic. As Kay Saunders observes:
Pacific Islanders were…prohibited from working in many industries in which they had previously secured employment. Other legislation made it illegal for any resident alien to own or lease land for the purpose of cane cultivation. People built makeshift houses, worked intermittently and frequently illegally, and attempted to eke out a living. So they stayed for generations – despised, destitute and largely forgotten.
Australian South Sea Islanders are now drawing attention to their historical mistreatment. An understanding of the abuse of the rule of law in one of the High Court’s foundational cases, the authority of which is still relied upon today, is an important part of that process.
 J W Salmond, ‘Citizenship and Allegiance’ (1902) 18 Law Quarterly Review 49, 53.
Peter Prince recently completed a PhD through the ANU College of Law entitled ‘Aliens in their own land. ‘Alien’ and the rule of law in colonial and post-federation Australia’. As a dual Australian/New Zealand citizen, he is – based on current High Court authority – technically an ‘alien’ himself.
Suggested citation: Peter Prince ‘Australia’s South Sea Islanders – still paying for the law’s failure’ on AUSPUBLAW (17 October 2016) <https://auspublaw.org/2016/10/still-paying-for-the-laws-failure/>