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Natural-Born Subjects? Race and British Subjecthood in Australia

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Natural-Born Subjects? Race and British Subjecthood in Australia This paper is a post-print of an article published in the Australian Journal of Politics and History 51(1) 2005: 30-39. The definitive version is available at: http://www.blackwell- synergy.com/doi/abs/10.1111/j.1467-8497.2005.00358.x Natural-Born Subjects? Race and British Subjecthood in Australia John Chesterman1 From the time of European settlement in Australia until 1948, British subjecthood was the preeminent Australian citizenship classification. “Australian citizenship” was only created as a legal category in 1948, and from then until 1984 British subjecthood continued to exist, alongside Australian citizenship, as a kind of parenthetical citizenship status. This article explores the meanings and significance of British subjecthood in Australia, and considers the reasons for its eventual demise. The article argues that the advent of formal (legal) racial equality in Australia for Indigenous people and for immigrant groups (which culminated in 1975 with the passage of the Racial Discrimination Act), was one significant factor that helped to render obsolete the scenario whereby Australian citizens were deemed also to be British subjects. One of the most famous, and in some ways illustrative, references to British subjecthood in nineteenth century Australia was made by a man named Jemmy Morrill (also known as James Murrells). Morrill, who provided the seed for the central character, Gemmy, in David Malouf’s Remembering Babylon, had been shipwrecked in the mid nineteenth century and reportedly lived for seventeen years with one or more Aboriginal groups around what is now Townsville in north Queensland. According to a publication purporting to be his memoirs, Morrill one day appeared at the fence of a group of settlers, and when confronted with a rifle, he called out: “Do not shoot me, I am a British object — a British sailor.” I meant, of course, subject, but in my 2 excitement, and forgetting the proper word, I hardly knew what to say. The significance here of British subjecthood is that, even after years in the harsh colonial Queensland frontier, one’s British subjecthood would provide a level of protection. British subjecthood, of course, long pre-dated European settlement of Australia. One of the clearest legal statements concerning subjecthood dates back to Calvin’s Case of 1608, where the distinction was made between those who are born as aliens and those who are born as subjects. The main criteria that needed to exist for a person to be born a subject were that the birth took place in the “King’s dominion”, 3 and that the parents were “under the actual obedience of the King”. The division between subjects and aliens is one that has existed for most of the time in which Europeans have been in Australia. Colonial legislatures in Australia, as soon as they enacted naturalisation statutes enabling aliens to remain in their colonies, adopted British subjecthood as the way to describe the new status of those who had been naturalised. One Western Australian statute of 1841 declared a person so naturalised as “enabled to purchase and hold Lands, and to enjoy all the other Privileges of a natural born British 4 Subject within the Limits of the Colony of Western Australia”. With the establishment of the Commonwealth of Australia in 1901 British subjecthood immediately became enshrined in Commonwealth law. Section 117 of the Australian Constitution contained (and still contains) one of the few, albeit confusing, constitutional statements on rights. It states that a “subject of the Queen” cannot be discriminated against on the basis of his or her state of residence. The first Commonwealth naturalisation law provided that: A person to whom a certificate of naturalization is granted shall in the Commonwealth be entitled to all political and other rights powers and privileges and be subject to all obligations to which a 5 natural-born British subject is entitled or subject in the Commonwealth. But what were these “rights powers and privileges […] to which a natural-born British subject is entitled”? This is the first of two questions that I want to address in this article. The second, is how should we understand the ultimate demise of British subjecthood in Australia? Acquiring British Subjecthood To be recognised as a British subject in Australia in the first half of the twentieth century one had to be born in Australia, be recognised as a British subject in another Commonwealth country, or be naturalised according to Australian naturalisation laws. To be sure, British subjecthood, at least for people born in Australia, was a status one acquired without racial qualification. People who were born in Australia were, more or less, automatically British subjects. There was never any doubt that Indigenous Australians were British subjects. They were British subjects by virtue of being born in Australia. Geoffrey Sawer argued in 1961 that: It is clear that […] every aboriginal native of Australia born in Australia after 1829 (by which date the whole of the continent was part of the dominions of the Crown) became a British subject by birth; his race was irrelevant, and there were no other circumstances capable of qualifying the 6 allegiance. British subjects, meanwhile, from outside Australia had to negotiate Australia’s White Australia Policy, which restricted immigration on the basis of race. But those non-Australian British subjects who managed to get inside Australia continued to be recognised as British subjects. Thus Indians, for instance, who managed to immigrate to Australia were recognised as British subjects in Australia. For aliens who managed to negotiate Australia’s racist immigration policies and arrive in Australia, the Naturalization Act from 1903 prevented certain “aboriginal native[s]” from being naturalised, and thus prevented these immigrants from 7 enjoying the status of British subject in Australia. This changed in 1920, in keeping with British law, when specific racial qualifications were removed from Australia’s naturalisation law. The Nationality Act 1920, under which aliens could seek British subject status in Australia, merely stated that applicants had to show that they had “resided in His Majesty’s dominions” for five years, were “of good character” and had “an adequate knowledge of the English language” to be entitled 8 to the rights of “a natural-born British subject”. Clearly these requirements allowed a degree of administrative discretion that enabled racial criteria to constitute grounds for denying naturalisation applications, a point borne out by contemporaneous archival documents from the Department of Home and Territories, which showed racial factors regularly to be given consideration in the 9 exercise of administrative discretion over the granting of naturalisation. But from 1920 the law, if not the practice, provided no colour bar to prevent alien immigrants from seeking naturalisation and the rights of “a natural-born British subject”. But what were these so-called rights? What rights did one acquire upon achieving British subject status in Australia? The Effects of British Subjecthood When Australia passed its first national naturalisation law, the meaning and effect of British subjecthood was unclear. The Postmaster General, during debates on the naturalisation bill, argued that: “The particular rights and privileges of British 10 subjects as against aliens is a matter that is not very clear in any British country.” In short, a person’s status as a British subject in Australia entitled them to very few legal rights. Entitlements that one might see as naturally flowing from British subject status — such as the right to vote and receive social security — did not follow automatically upon a person being recognised as a British subject in Australia. The criteria that needed to be satisfied for these rights to be enjoyed were contained in a number of different pieces of legislation. Subject status was a threshold that needed to be met in order for these rights to be enjoyed, but it did not guarantee enjoyment of these rights. The first national franchise legislation, for instance, stated that in order to be eligible to vote in federal elections people had to be “natural born or naturalized 11 subjects of the King”. But many British subjects, particularly non-white ones such as Indigenous Australians and Indians, were specifically denied entitlements by provisions in a range of racially discriminatory legislation. Until 1925, Commonwealth electoral law prevented any “aboriginal native of Australia, Asia, 12 Africa, or the Islands of the Pacific (except New Zealand)” from voting. This included Indians and Aboriginal Australians (and in World War I even some otherwise eligible naturalised subjects were specifically denied the vote if they had 13 been “born in an enemy country”. ) In 1925 international lobbying saw Indians gain the national vote in Australia, though it was not until 1962 that all adult 14 Indigenous Australians won the national vote. As Geoffrey Sawer argued in 1961: Being a British subject is by itself worth little; it is the foundation on which further conditions of disqualification or qualification are built, such as being a member of a particular race or meeting 15 residential requirements. One of the few legal benefits to be derived from being a British subject was that one could, in general, avoid being deported to one’s country of birth. And even this was not always the case. The Commonwealth Immigration Act and the Crimes Act contained provisions whereby people “not born in Australia” were liable to be 16 deported for treason-like activities. Thus even British subjects born overseas faced possible deportation in some situations. But in general one of the main benefits of subjecthood was that one was immune from deportation. Given that this was a key benefit of subjecthood, one can understand why Indigenous Australians had more reason than most to query the value of their British subject status. One is reminded here of one of the protests of the Indigenous activist and leader of the self-proclaimed Aboriginal Provisional Government, Michael Mansell.
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