Churches, Steven --- "WA's Section 70 -- Imperial Promises, Colonial Breaches" [1995] AboriginalLawB 36; (1995) 3(74) Aboriginal Law Bulletin 8

• Wa’s Section 70 – Imperial Promises, Colonial Breaches

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WA’s Section 70 – Imperial Promises, Colonial Breaches

by Steven Churches

Western Australia was the last of the Australian colonies to receive its own Constitution and become self-governing. The British Government finally granted self-government to the colony in 1889. The demands by the colonists prior to this event, and the reaction of the British Government in delaying the granting of a constitution to the colony, reflected very different attitudes to the welfare of the indigenous people of that colony.

The British Government took its information from welfare organisations concerned for the indigenous throughout the British Empire, such as the Exeter Hall group, and from the Times Newspaper, to the effect that the Western Australian colonists were, at the best, unthinking and callous in their treatment of the indigenous peoples, and at worst, murderously overbearing.

As a consequence, the British Government delayed the award of self-government to the Western Australians, but finally agreed to a Constitution which contained specific provision for expenditure of public money on Western Australian Aborigines. This was section 70, and it provided for the expenditure of five thousand pounds per year, to increase to 1% of public revenue when such revenue exceeded five hundred thousand pounds per annum.

From the first sittings of the Western Australian Parliament in 1890, s70 was denounced, and in 1892 a Bill for its repeal was passed unanimously through both Houses of the colonial Parliament. The British Government had, however, anticipated such a reaction, and had entrenched s70 in the Constitution, so that it could not be removed merely by both Houses of the Western Australian Parliament voting on the matter. A successful repeal would also require the signature of the British sovereign, advised by his or her British political advisors, meaning, in effect, the British Colonial Secretary acting with the agreement of the British Cabinet.

The repeal Bill which was passed in 1892 was duly despatched to London, where the then Colonial Secretary angrily refused to recommend its assent, pointing out to the colonial government, headed by Premier John Forrest, that s70 had been put in the Constitution for a good reason, and that reason, the welfare of Western Australian Aborigines, had not disappeared.

In 1894 the Western Australian Parliament passed another Bill, unanimously, with the purpose of repealing s70. In 1897, Sir John Forrest was able to talk the British Colonial Secretary, Sir Joseph Chamberlain, into agreeing to the repeal of s70, and the Bill was duly submitted to Queen Victoria for her signature, and delivery back to Western Australia.

However, the colonists had overlooked the full complexity of the 'manner and form' machinery put in place by the British Government in two statutes of 1842 and 1850, which dealt with the process by which the British Government would assent to alterations to entrenched provisions in colonial constitutions. Amongst these requirements for effective repeal were that the signed Act purporting to repeal a constitutional provision be delivered back to the relevant colony within two years of its original passage through the colonial Parliament, and that it then be proclaimed and gazetted in a particular way to ensure that it was public knowledge. (See P.W. Johnston's article, "The Repeals of Section 70: Aborigines and Governmental Breach of Trust", (1989) 18 UWALR 318.)

In 1905, a philanthropist named F. Lyon Weiss challenged the validity of the purported repeal of s70 in 1897, and the British Crown Law Officers duly wrote an opinion confirming that Lyon Weiss was correct, and that the 'manner and form' of the purported repeal had been inadequate.

The State Parliament, as it now was after Federation, rushed through a new Bill repealing s70 and abolishing the Board which existed under s70 to see to the distribution of the 1% of public revenue raised. This Board was under the control of the Governor, and the existence of the Board rankled with the colonists because the Governor was an Imperial Officer, responsible to the British Government, not to the State Government. The Bill repealing s70 provided for ten thousand pounds per annum (by 1905, way below 1% of the wealthy goldmining province's annual public- revenue) to be paid to a Department of Aboriginal Affairs.

This Bill seeking to repeal s70 in 1905 was despatched to London for the King's signature with all speed, and was duly signed, reutrned to Perth and proclaimed in the shortest possible time, a matter of a few months. The matter would have rested there, except that a man named Don McLeod, who had been living with the Aborigines in the Pilbara from the mid 1930s, heard of the Aboriginal objections to the repeal of s70, and he set about, over many years, obtaining legal opinion as to what might be done about challenging the purported repeal.

McLeod is now a very old man, who has spent his adult life living with Aborigines in the Pilbara. He is famous (infamous to some) in Western Australia for his work with the Aboriginal stockmen of the north in the period after World War II in getting the stockmen off a 'flour and baccy' relationship with station owners, and on to a proper wage. His book, How The West Was Lost, covers his experiences in the north of the State up until the time of Noonkanbah. The book contains the photos of two of the leaders of a Pilbara mob called the Strelley Group, Snowy Judamia and Crow Yougarla. These were men involved with McLeod in the strike by stockmen which affected the Pilbara between 1946 and 1949.

Judamia and Yougarla are now, like McLeod, very old men, but they are the first two of the five Aboriginal plaintiffs, acting as representatives of all Western Australian Aborigines, in the actions against the State of Western Australia (Judamia and Ors v Western Australia) which was commenced in 1993, heard before Owen J in the State Supreme Court in 1994, and reasons for decision delivered in January 1995.

The plaintiffs in Judamia seek a declaration that the purported repeal of s70 in 1905 was invalid. The invalidity is claimed to arise from the failure to table the 1905 Bill in the British Parliament for 30 days as required by the 'manner and form' provisions. This provision was plainly necessary so that the Colonial Secretary could be responsible in a meaningful way to the British Parliament. The invalidity claim also referred to a fiduciary obligation which lay on the Western Australian Government not to remove the working of s70 in favour of the Aborigines, at a time when they were plainly dependent on the remainder of the Western Australian community, and in particular, the Government. It may be noted that Western Australian Aborigines did not receive the vote at State elections until 1960.

The Western Australian Government sought to strike out the claim in Judamia on the basis that the action commenced in 1993 was not within the time period (a maximum of six years) allowed under the Crown Suits Act 1947 (WA) for suing the Government. The plaintiffs' argument was that in seeking a declaration as to the continuing existence of s70, they were not taking a form of action against the Government of the sort covered by the Crown Suits Act.

Owen J in his reasons in January 1995 noted that an amount of over $500 000 000 was the sum of payments not made, not merely since 1905, but since 1897. He was unable to accept that the seeking of a declaration as to the continuing existence of s70 was not an 'action'. The plaintiffs had argued that there was no necessary consequence that followed from the mere making of a declaration as to the continuing existence of s70, but Owen J was of the view that the Government could not escape obligations and consequences that would follow from the making of such declaration.

The judge was also concerned as to the claim of a breach of fiduciary obligation by the Crown, and noted that the Government conceded that a fiduciary obligation could arise which it owed to the Aborigines (following on Toohey J in Mabo (No.2)) but the claim as it presently existed was insufficiently precise. Consequently, his Honour struck out the Statement of Claim, substantially on the point of being out of time under the Crown Suits Act. Owen J noted that a claim might, on his reasoning, still be available for the last six years of non-payment, as one could sue that far back under the Crown Suits Act, and the effect of the purported repeal of s70 was one of continuing effect on the Aborigines, rather than merely being a single incident in 1905.

The plaintiffs have appealed to the Full Court of the Supreme Court of Western Australia. They have asked that the appeal be expedited, but there is a long delay period to get appeals on in that Court at present.