Creating a legal identity

The Commonwealth government of Australia introduced the policy of ‘assimilation’ in the early 1950s. This policy aimed to merge Aboriginal people with other Australians. In 1953 the government drafted legislation that would cease to discriminate against Aboriginal people on the basis of their race, but would instead discriminate against Aboriginal people whose social status rendered them ‘wards’. This reclassification process ultimately affected almost every Aboriginal person in the Northern Territory. However, the assimilation policy could not be implemented until a census had been undertaken of all Aboriginal people in the jurisdiction to determine which people would be listed as wards. The full implementation of the assimilation policy was delayed as the census took over four years to complete. The government employed patrol officers whose role included locating, naming and registering all Northern Territory Aboriginal people. Many obstacles confronted the patrol officers and the administrators in the completion of the census. This article tells the story of the census. Keywords: Aboriginal peopleassimilationcensus Notes 1. The authors would like to thank Francoise Barr and Cathy Flint at the Northern Territory Archives Service, and Duncan MacKenzie, at the National Archives of Australia, for their generous assistance. The authors would also like to thank Robert Burrell for his comments on an earlier draft. This research was made possible by a grant from the National Archives of Australia. 2. Richard Flanagan, Gould's Book of Fish, Grove Press, Berkeley, 2002, p. 187. See also Xavier Herbert, Poor Fellow My Country, Collins, Sydney, 1975, pp. 15–16, 29. 3. Hester Lessard ‘Mothers, fathers and naming: reflections on the law equality framework and Trociuk v British Columbia (Attorney General)’, Canadian Journal of Women and the Law, no. 16, 2004, pp. 165, 167. 4. Elizabeth Carasco, ‘What's in a name? Whose name is it anyway? – a comment on Trociuk v B.C.’ University of British Columbia Law Review, no. 37, 2004, pp. 259, 261. 5. Alia notes that the Inuit are also gradually restoring the names they had before the naming project, legally or through daily use, Valerie Alia, Names, Numbers and Northern Policy: Inuit, Project Surname and the Politics of Identity, Halifax, Fernwood, 1996, pp. 96, 102. 6. Paul Hasluck, Shades of Darkness: Aboriginal Affairs 1925–1965, Melbourne University Press, Melbourne, 1988, pp. 85–7. See also Russell McGregor, ‘Wards, words and citizens: A. P. Elkin and Paul Hasluck on assimilation’, Oceania, vol. 69, pp. 199, 243. 7. Hasluck, Shades of Darkness, p. 11. See also Michael Dodson, ‘Assimilation versus self-determination: no contest’ (speech delivered at the H.C. (Nugget) Coombs Northern Australia Inaugural Lecture, Darwin, 5 September 1996) http://www.hreoc.gov.au/speeches/social_justice/assimilation_vs_selfdetermination.html at 15 May 2007. 8. Welfare Ordinance 1953–1957 (NT). 9. As Benton has pointed out, the ‘political and symbolic importance of defining the legal status of indigenous subjects stretched across the colonial world’; Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History 1400–1900, Cambridge University Press, Cambridge, 2002, pp. 253, 6. See also Russell McGregor, ‘Avoiding “Aborigines”: Paul Hasluck and the Welfare Ordinance, 1953’ Australian Journal of Politics and History no. 51, 2005, p. 522. 10. Alia, Names, Numbers and Northern Policy. 11. Lessard, ‘Mothers, Fathers and Naming’, p. 210. See also Jeremy Long, The Go-Betweens: Patrol Officers In Aboriginal Affairs Administration in the Northern Territory 1936–1974, North Australian Research Unit, Australian National University, Casuarina, 1992. 12. Alia, Names, Numbers and Northern Policy, p. 105. 13. Robert van Krieken, ‘The barbarism of civilisation: cultural genocide and the “stolen generations” or “Elias in the Antipodes” (Paper presented at the Norbert Elias centenary conference Organized Violence: The Formation and Breakdown of Monopolies of Force-Conditions and Consequences, Amsterdam, 18–20 December 1997) at 23 February 2007. 14. Paul Carter, The Road to Botany Bay, Faber & Faber, Boston, 1987, pp. 27–8. Interestingly, Hasluck had already showed his interest in names and naming in his autobiography, Paul Hasluck, Mucking About: An Autobiography, Melbourne University Press, Melbourne, 1977. 15. See for example Long, The Go-Betweens; Creed Lovegrove, Brolga at Large: The Recollections and Perceptions of a Territory Boy and Native Affairs Patrol Officer, Historical Society of the Northern Territory, Casuarina, 2004; Colin Macleod, Patrol in the Dreamtime, Mandarin, Melbourne, 2003. 16. Tim Rowse, Obliged to be Difficult: Nugget Coombs' Legacy in Indigenous Affairs, Cambridge University Press, Cambridge, 2000, p. 17. See also Colin Tatz, Aboriginal Administration in the Northern Territory of Australia, PhD thesis, Australian National University, 1964, pp. 13–28 for a thorough overview of the policy and its effects. 17. Quoting Hasluck, ‘Hasluck and expert differ on Aborigines’ Centralian Advocate, 4 September 1959, p. 7. 18. Generally this was also Elkin's view (Elkin was a prominent anthropologist at the time). See Tigger Wise, The Self-made Anthropologist: A Life of A P Elkin, Allen & Unwin, Sydney, 1985, pp. 81, 107, 120, 135. 19. Paul Hasluck, Light That Time Has Made, National Library of Australia, Canberra, 1995, p. 122; Hasluck, Shades of Darkness, p. 130, quoting from a ‘Cabinet Minute’ he wrote in 1957. 20. McGregor, ‘Wards, Words and Citizens’, p. 247. See also Anna Haebich, Spinning the Dream: Assimilation in Australia 1950–1970, Fremantle Arts Centre Press, Fremantle, 2005, pp. 204–7. 21. Special Committee on Native Affairs, Western Australia Votes and Proceedings, Report of Special Committee on Native Affairs, 1958, p. 35, quoting Hasluck; referred to in Anna Haebich, Broken Circles: Fragmenting Indigenous Families 1800–2000, Fremantle Arts Centre Press, Fremantle, 2000, p. 439. See also Paul Carter, The Lie of the Land, Faber & Faber, London, 1996, pp. 51ff., where he points out that colonists are reconfigured as saviours. 22. The Legislative Council of the Northern Territory had thirteen members. Seven were official members; these were mainly the heads of Commonwealth Government departments. The remaining six were elected. The head of the Legislative Council was the Administrator of the Northern Territory (or Administrator in Council), who was appointed by the Commonwealth; see Northern Territory Legislative Assembly (General Information) at 8 May 2007. Northern Territory, Parliamentary Debates, Legislative Council, 22 January 1953, p. 80. 23. See Aboriginals Ordinance 1918–1947 (NT). See Warwick Anderson, The Cultivation of Whiteness: Science, Health and Racial Destiny in Australia, Melbourne University Press, Melbourne, 2002 for an overview of scientific ideas about race preceding the assimilation policy. 24. The Universal Declaration of Human Rights was declared by the United Nations in 1948 and stated that people should not be discriminated against on the basis of race. For further discussion see J. Chesterman, ‘Defending Australia's Reputation: How Indigenous Australians won civil rights part one’, Australian Historical Studies, no. 116, 2001, pp. 20, 22. 25. Colin Macleod, Patrol in the Dreamtime, p. 127. This position was effectively the highest in authority in the Commonwealth Government Department of Welfare at the time. 26. H Giese, ‘The native welfare programme in the Northern Territory’ in Personal Papers 1929–1986, Northern Territory Archive Service (NTAS), Northern Territory Record Search (NTRS) 1043, 1. 27. National Archives of Australia (NAA): E944, HERMANNSBERG. 28. NAA: F1, 1956/293 Part 1, folio 126, Letter from Sweeney to the Chief Welfare Officer, 29 June 1956. 29. NAA: F1, 1956/293 Part 1, folio 128, Letter from Holden, 24 July 1956. 30. Hasluck, Shades of Darkness, p. 128. 31. The legislation was on the 1953 ‘Northern Territory Legislation Programme’; NTAS, NTRS 226, Transcript (TS) 141 F.J.S. Wise, Tape 3, side B, 3. 32. NAA: F1, 1957/748, folio 53, notice dated May 1957. See also Robert Porter, Paul Hasluck: A Political Biography, University of Western Australia Press, Perth, 1993, p. 201. Hasluck subsequently claimed that lawyers’ anguish had delayed his prize legislation; Hasluck, Shades of Darkness, p. 86. 33. NTAS, NTRS 226, TS755 H. Giese, tape 13, Side B, 9. 34. See above n 22. 35. Section 14(1) Welfare Ordinance 1953–1960. 36. Northern Territory, Parliamentary Debates, Legislative Council, 22 January 1953, p. 87. 37. NTAS, NTRS 226, TS311/1 A. Richards, 29. 38. Pursuant to the welfare legislation it was impossible for most non-Aboriginal people to be declared wards. See Human Rights and Equal Opportunity Commission, Bringing Them Home: National Enquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, HREOC, Canberra, 1997, p. 123. 39. Immigration Act 1901–1949 (Cth). Section 14 (2) Welfare Ordinance 1953–1960. See also Kriewaldt's comment that the practical effect of this section was to confine s14(1) to aboriginal inhabitants, see Raabe v Wellington [1957] NTSC (Unreported, Kriewaldt J., 21 November 1957) p. 225. 40. Section 38 Welfare Ordinance 1953–1960. See the coverage of Mick Daly's (a non-ward) attempts to marry Gladys Namagu (an Aboriginal woman and a ward): Northern Territory News, 21 August 1959, 4 December 1959. See also the discussion later in this article. 41. NTAS, NTRS, TS 755 H. Giese. 42. Long, The Go-Betweens, p. 151. See also HREOC, Bringing Them Home, p. 144. 43. Justice Kriewaldt recognised this. He noted that ‘when the time arrives than an aborigine understands that he may appeal from ‘Welfare’ to the courts, that aborigine has also reached the stage where he should no longer be subject to the [Welfare] Ordinance’, see Martin Kriewaldt, ‘The application of the criminal law to the Aborigines of the Northern Territory of Australia’, University of Western Australia Law Review, no. 5, 1962, pp. 1, 15. 44. Northern Territory, Parliamentary Debates, Legislative Council, 22 January 1953, p. 88. 45. See Division 4 ‘Appeals by Wards’ especially section 32(2) Welfare Ordinance 1953–1960. 46. Section 39 Welfare Ordinance 1953–1960. Concerns were expressed by Hasluck's advisors that the appeal process was not rigid enough but Hasluck disagreed. See Porter, Paul Hasluck, p. 202. 47. NTAS, NTRS, TS 755 H. Giese. 48. Section 8 (a)(i) Welfare Ordinance 1953–1960. 49. Section 8 (a)(ii) – (vii) Welfare Ordinance 1953–1960; Section 17 Welfare Ordinance 1953–1960. 50. Section 17(2), 21 Welfare Ordinance 1953–1960. 51. HREOC, Bringing Them Home, p. 144. See also Northern Territory, Parliamentary Debates, Legislative Council, 22 January 1953, p. 93, where this possibility was discussed prior to the Ordinance's enactment. 52. Welfare Ordinance 1953–1960, Division 3 ‘Duties of Director in Relation to Property of Wards’. 53. Northern Territory, Parliamentary Debates, Legislative Council, 22 January 1953, pp. 92–3. 54. The records suggest that there were less than 20 patrol officers working in the Northern Territory at any time during the 1950s; see Long, The Go-Betweens, p. 170. 55. Long, The Go-Betweens. 56. See Lovegrove, Brolga at Large, p. 58; NTAS, NTRS 226, TS 46, E.C. Evans. 57. Lovegrove, Brolga at Large, p. 59. 58. References to the term ‘stud book’ can be found in Lovegrove, Brolga at Large, p. 71; Macleod, Patrol in the Dreamtime, p. 49; NTAS, NTRS226, TS193, J. Doolan, tape 1, 193. 59. See Long, The Go-Betweens, p. 125. Marital state was also included, see F1 1954/737 report authored by patrol officer Greenfield at p. 28. See also M. Landrigan and J. Wells, ‘Populating the Northern Territory’, in J. Wells, M. Dewar and S. Parry, Modern Frontier: Aspects of the 1950s in Australia's Northern Territory, Charles Darwin University Press, Darwin, 2005, p. 110. 60. NAA:F1, 55/390, Welfare Branch Patrol Officers Conference, p. 2. 61. NAA:F1, 1956/293 Part 1, folio 8, Letter from G Sweeny public relations officer (undated). 62. Macleod, Patrol in the Dreamtime, p. 49. 63. Note that in 1954 approximately 15,000 non-Aboriginal people were residing in the Northern Territory, see Landrigan and Wells, above n 59, p. 104; while Australia had a total population of approximately 8 million people in 1954, see Australian Bureau of Statistics, Year Book Australia, 1953, p. 62; Northern Territory News, 28 May 1957. The figures appear to be uncertain. Wells and Christie note that six ‘full-bloods’ were left off the register and note their names, see J. Wells and M. Christie ‘Namatjira and the burden of citizenship’, Australian Historical Studies, no. 114, 2000, pp. 110, 120. Powell suggests that about eighty Aboriginal people were initially granted full citizenship rights, see Alan Powell, A Far Country: A Short History of the Northern Territory, Melbourne University Press, Melbourne, 1996, p. 203. 64. Both Long and Macleod, patrol officers during the 1950s, allude to some of the difficulties encountered during the process in their autobiographies. See Long, The Go-Betweens, pp. 125–6, see Macleod, Patrol in the Dreamtime, pp. 49–53. 65. NAA: F1, 1956/1775, folio 61, 28 May 1957 from Archer. 66. NAA: F1, 55/390, Welfare Branch Patrol Officers Conference, summary, 1955. 67. NTAS, NTRS1043 H. Giese personal papers, Box 3, “Missions-Administration Conference, 1957”. 68. NAA: F1, 1956/293 Part 1, letter from H. Giese, dated 27 January 1956. 69. NAA: F1, 1956/293 Part 1, letter from H. Giese, dated 27 January 1956. 70. NTAS, NTRS 1043, H. Giese personal papers, Box 3 “Missions-Administration Conference, 1957”. 71. NAA: E155, 1960/94, folio 300, letter dated 8 March 1962 to Director of Welfare. 72. See for example Northern Territory News, 7 June 1955, 11 July 1957, 5 November 1957, and 7 January 1958. 73. Northern Territory News, 14 June 1955. 74. NAA: E743, U73 Lake MacKay Area proposed patrol, folio 137; letter dated 1 February 1955. 75. NAA: E743, U73 Lake MacKay Area proposed patrol, folio 76. 76. NTAS, NTRS226, TS 743, A. Probin, Tape 1, 7. 77. Although Giese did not want to pre-empt any decision making; NAA: E743, U73 Lake MacKay Area proposed patrol, folio 135. 78. NAA: E743, U73, Lake MacKay Area Proposed Patrol, folio 74. 79. See NAA: F1, 1957/367, folio 41, report of T. Egan dated 21 May 1957. 80. NAA: F1, 1952/795, folio 50, J. Bray file. 81. See Carter, Road to Botany, pp. 330–2. See also Northern Territory News, 24 March 1955. 82. NAA: F1, IT65 1972/6167 ‘Orthography for Aboriginal names’, 3 February 1955, signed by H. Giese. 83. NAA: F1, IT65 1972/6167 ‘Orthography for Aboriginal names’, 3 February 1955, signed by H. Giese. 84. NAA: E155, 1960/94, Folio 370, Aboriginal Affairs Register of Wards. 85. NAA: F1, IT65 1972/6167 ‘Orthography for Aboriginal names’, 3 February 1955, signed by H. Giese. See also McGregor, ‘Avoiding “Aborigines”’, p. 527. 86. NAA: E155, 1960/94, Folio 370, Aboriginal Affairs Register of Wards. 87. NAA: E155, 1960/94, Folio 370, Aboriginal Affairs Register of Wards. 88. Indeed the anthropologist Elkin became less supportive of Hasluck's approach as the 1950s wore on; see McGregor, ‘Wards, Words and Citizens’, p. 243. 89. NAA: E155, 1960/94, Folio 370, Aboriginal Affairs Register of Wards. See also NAA: F1, IT65 1972/6167 ‘Orthography for Aboriginal names’, 3 February 1955, signed by H. Giese. 90. NTAS, NTRS226, TS193, J. Doolan, 26. 91. NTAS, NTRS226, TS193, J. Doolan, 26. 92. NAA: F1, 1954/209, folio 96, report of patrol officer Ryan, 12 Dec. 1953. See also Carter, The Lie of the Land, p. 3, where he notes that movement has always been perceived as a problem by colonisers. 93. NTAS, NTRS226, TS540, B. Parry, Tape 1, 6; see also NAA: F1, 1952/701, letter dated 5 April 1952 from Anthony's Lagoon and letter dated 27 Aug. 1954 from Hooker Creek settlement. 94. NAA: F315, 1949/388, folio 51, C.P.O. Penhall LN Patrol Reports. 95. See NAA: F1, 1952/550, folio 42, Native Affairs Branch, report of E.C. Evans 15 July 1954. 96. NAA: F1, 1952/550, folio 42, Native Affairs Branch, report of E.C. Evans 15 July 1954. 97. NAA: F1, 1952/997, folio 115, report of Patrol Officer Lovegrove 4 December 1952. 98. NAA: F1, F1/0 1952/795, folio 50, report of Patrol Officer J. Bray. 99. Benton, Law and Colonial Cultures, p. 17. 100. NAA: E743 U73, folio 135, Lake MacKay Area Proposed Patrol. Also note, for example in 1955 it was reported that Walpiri people were moved north of Phillip Creek because of water shortages; see ‘New Home for 300 Natives; Water Scarce’ Northern Territory News, 10 March 1955, p. 1. 101. NAA: F1, 1956/293 Part 1, folio 38, letter from Roper River Mission, 26 February 1956. 102. NTAS, NTRS226, TS 540 B. Parry, Tape 1, 6. 103. NAA: F1, 1954/737, letter to superintendent of Beswick Creek Native Settlement from RK McCaffery, 21 January 1954. 104. NAA: F1, 1956/293 Part 1, letter from H. Giese 13 June 1956. 105. Northern Territory News, 24 March 1955. See also Francesca Merlan ‘Australian Aboriginal conception beliefs revisited’, Man, no. 21, 1986, p. 474 where the nature of this cultural taboo is discussed. 106. NAA: E155, 1960/94, Folio 370, Aboriginal Affairs Register of Wards. E155/1960/94 Folio 370; NAA: F1, IT65 1972/6167 ‘Orthography for Aboriginal names’, 3 February 1955, H. Giese. 107. NAA: F1, 1956/293 Part 1, folio 21, letter from G Sweeney, 6 February 1956. 108. Hasluck, Shades of Darkness, p. 30. 109. McGregor, ‘Wards, Words and Citizens’, p. 248. 110. Long, The Go-Betweens, p. 127. 111. NTAS, NTRS 226, TS193, J. Doolan, 28. 112. NAA: F1, 1957/367, folio 41, report of patrol officer Egan, 21 May 1957. 113. NAA: F1, 1956/293 Part 1, folio 46, letter from H. Giese to District Welfare officer 16 March 1956. 114. NAA: F1, 1953/800, folio 133, ‘Welfare Branch Aboriginal Ordinance 1953 Declarations’, Letter from E.C. Evans (Secretary of the Welfare Office) to Acting Director of Native Affairs, 6 May 1954. 115. NAA: F1, 1953/800, folio 132, ‘Welfare Branch Aboriginal Ordinance 1953 Declarations’, letter from McCaffery to Acting District Superintendent, dated 18 May 1954. 116. NAA: F1, 1955/1149, letter from Carew, 29 September 1954. 117. Letter from Sweeney to Chief Welfare Officer; CRS F1 1954/737. 118. NAA: F1, 1955/1149, letter from Ryan to Native Affairs Branch, October 1954. 119. NAA: F1, 1955/1149, folio 57, letter from H. Giese 19 February 1957. 120. NAA: F1, 1953/800, folio 7, 15, ‘Welfare Branch Aboriginal Ordinance 1953 Declarations’. 121. NAA:F1, 1953/800, ‘Welfare Branch Aboriginal Ordinance 1953 Declarations’, see folio 12; letter from H. Giese to Northern Territory Administrator 12 January 1955; and folio 9, letter from H. Giese to Northern Territory Administrator 2 February 1955. 122. NAA: F1, 1953/800, ‘Welfare Branch Aboriginal Ordinance 1953 Declarations’. See folio 21, letter from H. Giese to Northern Territory Administrator 15 December 1954; and see folio 37 letter from Penhall to Director of Welfare 4 August 1954. 123. NAA: F1, 1953/800, ‘Welfare Branch Aboriginal Ordinance 1953 Declarations’. See folio 28, note signed by H. Giese date stamped 6 December 1954. 124. For a discussion of the licensing legislation of the period see Heather Douglas, ‘Justice Kriewaldt, Aboriginal identity and the criminal law’, Criminal Law Journal, vol. 26, 2002, pp. 216–8. 125. Namatjira v Raabe (1958) NTJ 608. See also Wells and Christie, Namatjira, pp. 110–30. 126. NTAS, NTRS226, TS 608, J. E. Williams, Tape 1, 23. 127. Northern Territory Government Gazette, 13 May 1957, pp. 1–272. 128. NAA: F1, 1957/748, letter from T .Egan to the District Welfare Officer 9 October 1957; ‘Liquor Charge Brings Six Months Gaol’ Northern Territory News, 7 May 1953, p. 1. 129. Macleod, Patrol in the Dreamtime, pp. 52–3. T. Egan recalls similar occurrences: discussion with Chesterman, 13 Dec. 2006. 130. NTAS, NTRS226, TS 608, J. E. Williams, Tape 1, 20. 131. NTAS, NTRS226, TS193, J. Doolan, p. 26. 132. NAA: E155, 1960/94, folio 374, Aboriginal Affairs Register of Wards, letter from H. Giese to District Welfare Officers (date unknown). 133. NAA: E155, 1960/94, folio 365, Aboriginal Affairs Register of Wards. 134. NAA: F1, 1956/293 Part 1, folio 196, letter from Holden to Welfare Officer, 19 March 1957. 135. NAA: E944, UTOPIA 2, folio 60, note from Holden, 21 November 1957. 136. Northern Territory Government Gazette, 13 May 1957, pp. 1–272. 137. NTAS, NTRS226, TS755, H. Giese. 138. Benton, Law and Colonial Cultures, p. 3. 139. Benton makes this point about the imposition of law more generally to colonial cultures, Benton, Law and Colonial Cultures, p. 17. 140. Long, The Go-Betweens, p. 127

Assimilation (phonology · Canadian Identity and History · Indigenous Health, Education, and Rights

• Law on Australia's Northern Frontier

  Open Access•John Chesterman, Heather Douglas•Canadian Journal of Law and…•2009

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