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Section 70

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Part Three

Aboriginal people and the Constitution

section_70 

A group of Aboriginal people in European clothing.

"There shall be payable to Her Majesty, in every year, out of the Consolidated Revenue Fund the sum of Five thousand pounds mentioned in Schedule C to this Act to be appropriated to the welfare of the Aboriginal Natives, and expended in providing them with food and clothing when they would otherwise be destitute, in promoting the education of Aboriginal children (including half-castes), and in assisting generally to promote the preservation and well-being of the Aborigines."

Section 70, Constitution Act 1889.

 

THE British Government insisted on retaining responsibility for the welfare of Aboriginal people when it agreed to grant Western Australia self-government in 1890. Governor Broome had earlier warned the Secretary of State in London that the colonists could not be trusted to treat Aboriginal people equitably. As a result, a special section was included in the Constitution Bill, similar to a provision in the charter which had established a legislature in Natal in 1856. This section, known as Section 70, included a formula for funding the Aborigines Protection Board, which had been formed in Perth in 1886 and was to remain responsible to London, not the Western Australian Parliament. The section compelled the colonial government to hand over 5,000 pounds or 1 per cent (whichever was the greater) of consolidated revenue to the board each year, to be spent in the interests of Aboriginal people.

The inclusion of Section 70 in the Constitution was resented by colonial supporters of self-government, who agreed to it under sufferance to avoid jeopardising the whole Bill. After the constitution was proclaimed, parliamentary leaders renewed their criticism and claimed the provision was a slur on the abilities of Western Australians to govern themselves. John Forrest, who had earlier supported inclusion of Section 70, became a vociferous critic and first tried to repeal it in 1892. He was later backed by another member of parliament, William Traylen, who argued that . . . "as our revenue is growing up now, and the natives can scarcely be said to be increasing in numbers, we shall be paying a very undue proportion of our income as a colony for the purpose of supporting the Aboriginal native race".  Governor Robinson, as representative of the British Government, and Premier Forrest wrangled over the question for years. Aboriginal people themselves were never consulted about the issue. Robinson and his superiors in London were reluctant to yield to the Western Australian Parliament because of concerns at the likely treatment Aboriginal people would receive. Yet after a series of arguments and counter-arguments, Forrest prevailed. Legislation was passed in 1897 to repeal Section 70 of the constitution, and this was ostensibly confirmed by the Aborigines Act 1905. Today, the validity of this legislative action remains under a cloud. A group of Kimberley Aboriginal elders is seeking to prove in the Supreme Court that the repeal of Section 70 was illegal, and that the State Government is still bound to hand over funds for Aboriginal welfare, in accordance with the Constitution Act 1889.

". . . it can be clearly seen that colonisation has been consolidated in this State through aspects of violence, and by the design and implementation of government policies and legislation. What becomes most apparent, is the right of government to create institutional control over Aboriginal peoples without too much emphasis being placed upon Aboriginal legal, social and cultural requirements. This control, combined with powerful interest groups and representatives from law enforcement agencies, ultimately denied Aboriginal people any form of real empowerment."

P. Dodson, Royal Commission into Aboriginal Deaths in Custody, 1991.