Famous artist not legally Aboriginal
In the late 1950s almost all Aboriginal people of full descent in the Northern Territory were wards of the state. Albert Namatjira, famed Arrente artist, appeared to be a man who could bridge two vastly different cultures. He was not classified as a ward when new legislation was implemented in 1957, and so he became an Australian citizen.
Since it was illegal for Australian citizens to provide alcohol for wards (ie Aboriginal people), when Namatjira shared a drink with a kinsman he was breaking the law.
The events which followed showed that the state and federal governments were wrong to set up 'Aboriginal' and 'citizen' as mutually exclusive categories. An Aboriginal person who successfully applied to have full citizenship rights in Western Australia, for example, would no longer legally be classed as 'an Aborigine'.
Her or his social experience would, however, continue to be influenced by skin colour and other physical characteristics.
Many Aboriginal people refused to subject themselves to the indignity of applying to become a citizen. Punitive requirements which prevented them from associating with relatives if they 'became citizens' showed the inhumanity of these laws.
Albert Namatjira's experience highlighted the absurdity and inhumanity of laws which set up this divide. On the surface it is a heartbreaking story of personal suffering; underneath it displays attitudes of racial superiority and cultural intolerance.
(A) Albert Namatjira's country in Central Australia, west of Alice Springs in the Northern Territory
In the 1950s most legislation that targeted Indigenous Australians was firmly in state hands. The Australian Constitution stated in section 51 (xxvi) that 'the Parliament shall, subject to this Constitution, have power to make laws for the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws'.
All states, except Tasmania, used the power given to them by this exclusion to make laws that applied only to Aboriginal people.
Until mid-century these state so-called 'protection acts' proscribed and controlled Aboriginal people's lives. In a number of cases laws passed to protect Aboriginal people from predatory whites were applied in a controlling, inhuman way.
For example, the consorting provisions of the South Australian Police Act may have been designed to protect Aboriginal women from white sexual predators, but they could also be invoked to prevent ordinary socialising, as Ephraim Tripp found out. He regularly gave a lift to work to his Aboriginal work mate until he was told by a police constable that he was breaking the law by doing so!
The right to choose a marriage partner, to be legally responsible for one's own children, to move about the state and to socialise with non-Aboriginal Australians, were just some of the rights which Aboriginal people did not have.
In Queensland the protector or superintendent of a mission even had the right to open the letters of people living on reserves.
When Ted Penny, a Western Australian school teacher, travelled to Canberra to be a part of a deputation to Prime Minister Menzies in 1963, he crossed four state borders. He was subject to different laws in each state he travelled through.
In some places he was Aboriginal and in other places he wasn't. Some state laws defined aboriginality in terms of how much 'Aboriginal blood' people had.
In a number of legislatures if a person was able to gain exemption from these Aboriginal Acts and have the same rights as other citizens s/he was considered, by law, to be no longer an 'Aborigine'.
A change of legal status, however, did not necessarily mean social acceptance in the white community. For more information on the various laws affecting Aboriginal Australians, see State legislation (LINK) in the Resources section of this website.
Summary of different laws
In 1962 Shirley Andrews, campaign organiser for the Federal Council for Aboriginal Advancement, researched these restrictions and put them together in table form.
This made accessible for the first time to interested people the enormous variations across the continent with regard to how aboriginality was defined and what people so defined were prevented from doing.
In order to escape the restrictions of these state laws, people who were defined as Aboriginal had to apply for an exemption. Many referred to these laws as the 'dog collar act' or 'the dog act' as people felt they were being pushed and pulled as if they were a dog on a lead.
Those who applied for exemption often lost credibility in the eyes of their friends and family. They were seen to be ingratiating themselves with the authorities who made unreasonable demands, such as refraining from socialising with kin.
Once exempted, a person was often no longer considered to be 'an Aborigine' — it was impossible to be both an Australian citizen and an Aboriginal person.
The Northern Territory was the only jurisdiction (apart from the Australian Capital Territory) in which the Commonwealth had direct power. Paul Hasluck, the Minister for Territories, argued that the barriers to full citizenship were not to do with race.
He believed that people could learn to become Australian citizens and that limitations on this citizenship should be based not on race but on the ability of a person to make his or her way in white Australian society. This included the ability to manage money, to work and to gain a basic education.
Thus the Northern Territory Welfare Ordinance, which became law in 1957, made no direct reference to race; instead it referred to those who 'by reason of their manner of living' were regarded as being unable to manage their own affairs and would thus be declared wards of the state.
When members of the Northern Territory Legislative Council realised, however, that it would be possible to apply the criteria to a person who was not Aboriginal, further criteria were added so that Aboriginal Territorians were the only ones who could be declared wards under this legislation.
A person could not be declared a ward if s/he was entitled to vote at an election of a member of the House of Representatives for the Northern Territory, and if a person was a ward s/he had no entitlement to vote.
This sleight of hand protected white Territorians, as administrators intended it to, while appearing to legislate for those people, regardless of race, who demonstrated the need for welfare assistance.
A Register of Wards was drawn up listing 15,711 names of Aboriginal Territorians. This register, referred to disparagingly as 'The Stud Book', was described by Barry Christophers as 'an instrument of torture against the Aborigines' often listing people by derogatory European nicknames such as 'Ruby Yaws', 'Spondulicks' or 'One-armed Bob'.
Six people of full Indigenous descent were left off the list. One of these was well-known Aboriginal artist, Albert Namatjira. Namatjira thus came to have the full rights of an Australian citizen, not because he applied to have them but because he was judged as being able to manage his own affairs.
Throughout the 1950s and 1960s stories were reported in the news of Aboriginal Australians caught up in these laws — people who were refused permission to marry because the person was on the other side of the racial divide, or were prevented from handling their own wages. The most prominent example concerned Albert Namatjira.
From his first exhibition in 1938 Namatjira's popularity as a landscape painter of his Arrente country grew. His exhibitions sold out as soon as they were opened and, by the 1950s, Namatjira reproductions adorned the walls of many Australian middle-class living rooms.
In 1954 Namatjira was presented to Queen Elizabeth, and, three years later, at 55 years of age, with the passage of the Welfare Ordinance, Albert Namatjira became an Australian citizen, although his adult children and other relatives were listed as wards.
Namatjira was feted at cocktail parties in the capital cities, introduced to radio personalities such as Jack Davey and sport stars such as Betty Cuthbert.
His paintings sold well but he found meaning living in his own country with his own people. He shared his wealth with his kinsfolk.
As a citizen he was now allowed to drink alcohol, but his friends and relatives who came under the Welfare Ordinance were not. When a drinking party at Namatjira's camp at Morris Soak led to the death of a young woman, Namatjira appeared at the inquest to give evidence.
Some months after this tragedy, Namatjira was charged with supplying alcohol to a relative, Henoch Raberaba. He was found guilty and the minimum sentence was imposed: imprisonment for six months.
Douglas Lockwood remarked: 'in my 20 years experience as a journalist and reporter, I have never witnessed a more deeply moving drama. Albert was a heartbroken old man, bewildered by events, for which, so it was implied, he was to blame.'
This gaol sentence galvanised activists in the southern capitals.
A fighting fund was established in Melbourne and MJ Ashkanasy, QC was engaged, along with Zelman Cowen and Ninian Stephen to appeal against the judgement.
In addition, this team of lawyers planned to challenge the Welfare Ordinance on behalf of two of Namatjira's adult sons, Keith and Enos, and two others, Claude Emitja and Otto Pareroultja, whose civil liberties — as wards of the state — were constrained by the Ordinance.
The appeal against Namatjira's sentence failed, however, and so this further challenge was dropped. Namatjira served two months of his sentence at the Papunya Native Reserve west of Alice Springs in the Northern Territory.
After his release he showed no interest in painting. He seemed to have lost the will to live and died of a heart attack in August 1959.
The press and the Australian public were outraged at the gaol sentence imposed on Albert Namatjira, and his death, less than a year later, reignited community anger at his treatment.
Some wrote of a deep sense of shame. Others referred to the right of an Australian citizen to share a drink with a mate. Some viewed alcohol as 'white man's curse'. The consensus, however, was that Namatjira had been treated unjustly.
The case led to a public questioning of the legal status of Aboriginal Australians. The outrage over Namatjira's gaoling was of a different kind to that of the Warburton Ranges controversy in 1957.
In the earlier instance people were shocked by images of severe malnutrition and serious illness and they responded as they did to a famine in Africa, wanting to give money for food relief.
The Namatjira case presented a different situation. Here was an Aboriginal man who seemed to be a remarkably successful example of the assimilation policy in action, and yet he was gaoled for an activity drinking with a relative — which was not a crime for any other Australian.
The case indicated a flaw in the federal government's attempt to offer citizenship to Aboriginal Australians. The news stories referred to a man 'caught between two civilisations'.
Members of the Federal Council for Aboriginal Advancement, however, wrote letters to editors pointing out that this was not just a case of a man caught between two worlds, but rather the case of a man trapped by laws which had to be changed.
Stan Davey, who was the secretary of both the Victorian Aborigines Advancement League and of the Federal Council for Aboriginal Advancement, referred to the Universal Declaration of Human Rights in arguing that it must be as free citizens that government sought to integrate Aboriginal people with other Australians.
Shirley Andrews, Secretary of the Council for Aboriginal Rights, pointed out that an Aboriginal Territorian could neither get a bed in a hotel (even if he didn't drink) nor rent a home, nor travel first class on the train.
In 1950 Paul Hasluck, the new federal member for Curtin, had raised the issue of government responsibility for Aboriginal Australians in the House of Representatives. Hasluck asked the Commonwealth Parliament:
As the supreme voice of the Australian nation, to ensure that, irrespective of where the constitutional powers lie, the practical task of the betterment of the conditions of the natives throughout the Commonwealth shall be undertaken.
He also asked parliamentarians to think about how other nations might judge Australia:
When we enter into international discussions, and raise our voice, as we should raise it, in defence of human rights and the protection of human welfare, our very words are mocked by the thousands of degraded and depressed people who crouch on rubbish heaps throughout the whole of this continent.
The following year Hasluck became the Minister for Territories and in this position he was able to develop what would become the Commonwealth's approach to Aboriginal policy.
He persuaded the federal government to finance a Northern Territory program which would see government reserves becoming training institutions, preparing Aboriginal residents for assimilation into mainstream Australian society. At the 1961 Native Welfare Conference he gained the support of the states for a joint policy of assimilation.
Hasluck believed that, over time, Aboriginal Australians would become similar to other Australians and that their sense of connection to kin would diminish.
He considered that citizenship should be earned and that as people 'grew into the society that they would inhabit', as he put it, they would be freed from the restrictions which state and territory protection acts and ordinances placed on their liberty.
Unlike Paul Hasluck, who considered that Aboriginal Australians had to earn citizenship (though this wasn't the case for non-Aboriginal Australians), the people who had formed the Federal Council for Aboriginal Advancement (FCAA) saw citizenship as a right.
They drew on the Universal Declaration of Human Rights, adopted and proclaimed by the General Assembly of the United Nations in 1948, which set out the rights that should apply to all human beings regardless of their circumstances.
This document, to which Australia was a signatory, would become a benchmark against which FCAA civil rights activists would measure abuses of Aboriginal human rights.
In 1959 Gordon Bryant, vice-president of FCAA and the federal Labor member for Wills, asked Attorney-General Garfield Barwick to clarify exactly what was meant by the term 'citizenship' when applied to Aboriginal Australians.
In reply, Barwick explained that Aboriginal people were Australian citizens under the Nationality and Citizenship Act, but that any limitations to their rights as citizens came from laws passed by state legislatures.
In 1958 Mary Bennett, a Western Australian activist who was both attuned to the needs of her impoverished Kalgoorlie Aboriginal neighbours and aware of moves within the international community to safeguard the rights of colonised peoples, drew attention to International Labour Organization (ILO) Convention 107 concerning 'the protection of indigenous and other tribal and semi-tribal populations in independent countries'.
Whereas the Declaration of Human Rights emphasised the universal rights of all people, the ILO Convention looked specifically at the rights of Indigenous peoples who had been colonised. It sought to secure for Indigenous populations the same legal protections offered to the rest of the community.
While the basic focus of Convention 107 was on equal rights and integration, it went further, stating:
The right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognised.
Australia, however, did not sign the convention.
The agenda of the second annual conference of FCAA, which was held in Melbourne in 1959, was shaped according to the articles of Convention 107 as a way of alerting other activists of this international convention and its relevance to Australia.
One conclusion they came to was that the Australian Constitution needed to be changed so that the Commonwealth government could take a more active role and responsibility. Another was to continue to publicise cases of injustice.
The FCAA showed that it was prepared to challenge both law makers and law enforcers, such as mission superintendents and clerks of petty sessions.
In remote parts of the country the police officer often had the additional titles of local Protector of Aborigines and the Clerk of Petty Sessions as well as being under sometimes intense pressure to support pastoralists in conflicts with local Aborigines.
'Theoretical' citizenship rights meant next to nothing in a conflict which saw the rights of pastoralists to protection of their property — cattle — overriding the rights of a people to their hunting land.
Social Darwinism provided a rationale for dispossession, retaliation after cattle theft, and the use of leg irons. Social Darwinists argued that the Aboriginal race was genetically inferior to Europeans and therefore less fit in the battle for survival.