Tuesday, March 8, 2011

Anomaly in Torres Strait: Living ‘Under The Act’ and the Attraction of the Mainland.

This article explores the relationship of Torres Strait Islanders and the 1897 and 1939 government acts in Queensland applying to Indigenous Peoples. Despite the intent of these acts to apply to all Torres Strait Islanders resident in Queensland, my research into Torres Strait Islander migration to Cairns shows that this was not the case. Few of the Torres Strait Islanders who settled in Cairns ever came under the provisions of these acts and many Torres Strait Islanders resident in the Strait also appeared to be exempt. How and why this occurred provides a fascinating insight into government policy towards Torres Strait and its inhabitants, of sympathetic government officials, the power exercised by the Protectors over the lives of Indigenous Peoples in Queensland during this period, and bureaucratic bungling when framing the 1939 Act.
The 1897 Act

In 1897 the Queensland Parliament enacted the Aboriginals Protection and Restriction of the Sale of Opium Act, responding to a report in Parliament in 1896 by Archibald Meston, calling for greater protection of Aborigines. This legislation implemented a system of tight controls and closed reserves and was the official beginning of Queensland protectionist policies towards its Indigenous population.

The provisions of the Act were wide-ranging. An Aboriginal was defined as:
a.      An aboriginal inhabitant of Queensland; or
b.      A half-caste who, at the commencement of this Act, is living with an Aboriginal as wife, husband or child; or
c.       A half-caste who, otherwise than as wife, husband, or child, habitually lives or associates with Aboriginals;
Shall be deemed to be an Aboriginal within the meaning of this Act.

Every person who is:-The Governor had the power to "declare any portion or portions of the colony to be a district; or districts, for the purpose of this Act" as well as appoint "Protector[s] of Aboriginals, who shall, within the districts respectively assigned to them, have and exercise the powers and duties prescribed." There was also provision for "The Minister to issue to any half-caste, who, in his opinion, ought not to be subject to the provisions of the Act, a certificate, in writing under his hand, that such half-caste is exempt from the provisions of the Act."

Nowhere in the Act were the words Torres Strait or Torres Strait Islanders mentioned. Initially the Act was not imposed on Torres Strait Islanders, it being "recognised that these Torres Strait Islanders differed considerably from the ordinary Aboriginal." Police Commissioner William Parry-Okeden, reporting on the differences between Aborigines and Torres Strait Islanders, noted "The difference between the two races and … the fact that different methods of management are requisite in dealing with them." He further stated, in an 1898 report into the workings of the Act, that "the island natives can understand English, are well able to take care of themselves, and do not require protective legislation."

The main reason why Torres Strait Islanders were initially not brought under the Act is generally thought to be due to the influence of the Hon. John Douglas, a one-time Queensland Premier and Government Resident at Thursday Island since April 1885. In an extempore address to the Queensland branch of the Royal Geographical Society in 1900, Douglas described Torres Strait Islanders as:
British subjects. They are civilised people; they are being educated; and they are entitled, and I say, should be treated as British subjects. … They are human beings; they are our own flesh and blood; they are born under our jurisdiction; and they are entitled, I maintain, to the privileges we enjoy. Of course there is a very great distinction between the natives of the islands of the Torres Strait and the natives of Australia. … The natives of the islands of Torres Strait are capable of exercising all the rights of British citizens and they ought to be regarded as such."

Following amendments to the Act, which now required that Aborigines could only be employed with the consent of a protector, on 25 October 1899 the Government appointed George Harpur Bennett, Sub-Collector Customs on Thursday Island, as the Aboriginal Protector for the District of Somerset. His duties were mainly concerned with the regulation of Aboriginal labour, sourced from Cape York, within the pearling and beche-der-mer industries.

Bennetts appointment was not for the purpose of bringing Torres Strait Islanders under the Act. As J.F.G. Foxton, the Home Secretary, observed when discussing these amendments to the Act

As to the islanders in Torres Strait, they, I think, are well able to take care of themselves. This Bill is mainly directed towards the protection of what is known as the "binghi": the Torres Strait Islander is fairly well civilised … and I don not think he has anything to fear. 

However, following Douglas’s death in July 1904, the government gradually began extending the provisions of the 1897 Act to incorporate Torres Strait Islanders, despite the proteststaions of Hugh Milman, the new Government Resident on Thursday Island.

This was justified on the grounds that:

While the Islanders had a thorough appreciation of their own internal government, they were not sufficiently able to appreciate European methods of trading and European money to protect themselves in business dealings, and as a consequence in 1904 the provisions of the Aboriginal Protection Act were extended to them.

Pacific Islanders in Torres Strait

From the late 1860s onwards Pacific Islanders, as well as Filipinos, Malay and other heritage groups such as Jamaicans came to Torres Strait to work in the pearling industries. By 1872 Pacific Islanders were living on practically every inhabited Central and North-Eastern Island. They were relatively affluent, earning wages in the bech-de-mer and pearl shelling industries. They were able to pay higher bride prices for Torres Strait Island women who saw them as desirable husbands, and they rapidly intermarried with the local population. Many of the Pacific Islanders were Christian, literate, well travelled and had lived among whites for years. Their wealth, Christianity, experience of the world and knowledge of European life gave them high status and they rapidly achieved positions of influence and dominance.

Pacific Island families were much larger than Torres Strait Islander families. Traditionally, indigenous Torres Strait Islander families had two or three children, while Pacific Islander families had as many as ten or more children. Through intermarriage and large families they became interconnected, on the maternal side, with Torres Strait Islanders in the kinship system. By the turn of the century they were not only well integrated into Torres Strait society but had become a dominant group amongst those communities close to the pearling grounds, (Erub (Darnley Island), Ugar (Stephens Island), Poruma (Coconut Island), Nagi and Warraber (Sue Island)).

Relationships between Torres Strait Islander and Pacific Islander men were generally friendly by the early 1900’s although this friendliness had been preceded by three decades of tension, rivalry and occasional hostility and violence.

These Pacific Islanders were seen by the authorities to be different to Torres Strait Islanders. In the annual report of the Queensland Chief Protector of Aboriginals for 1914, the Protector of Aborigines for Thursday Island, W. M. Lee-Bryce, remarked that:

Inability to deal with Pacific Islanders and men other than Torres Strait Islanders, who are married to native women and reside on the Islands, is a great source of trouble; they are subtle-minded, have a greater knowledge of the position than natives, and, I feel sure, are frequently the cause of little troubles which so easily unsettle the people and are difficult to remedy. The fact of their exemption from rules which govern natives raises a feeling of inequality which is strongly resented by our own people.

Pacific Islanders under the Act

Thus while the provisions of the 1897 Act were gradually extended to Torres Strait Islanders, the application of this Act to Torres Strait Islanders of Pacific Island, Filipino, Malay of other heritage, was problematic. The assimilation of Pacific Islanders in Torres Strait was probably accelerated by what occurred on the wider Australian scene with the formal introduction of the White Australia Policy. Pacific Islanders were particularly affected by the Pacific Island Labourers Acts of 1901 and 1906, which required the deportation of all Pacific Islanders unless they met certain criteria. Most Pacific Islanders resident in Torres Strait met these criteria of having lived in Queensland before1879 or having married women not of their own race. A South Sea Islander Reserve, under the aegis of the Anglican Church, was set up at Wag on Moa Island in 1907, but only a small number of Pacific Islanders in Torres Strait actually moved there.

Pacific Islanders who remained in Australia after March 1906 were not encompassed, in a legal sense, under either Commonwealth or State legislation relating to Aborigines or Torres Strait Islanders. Torres Strait Islanders who were descended from Filipino or Malay heritage, likewise did not come under these Acts.

Attempts were made in Torres Strait to bring those Torres Strait Islanders of Pacific Islander heritage under greater departmental control and it appears that from 1914 onwards, those Pacific Islanders in Torres Strait who were considered troublesome and seen as a difficult and disturbing element in the island communities by the authorities, were encouraged to leave those Torres Strait Islands gazetted as reserves. Some settled in European settlements or St Pauls Mission on Moa Island.

By the 1920s and 1930s most Torres Strait Islanders resident in Torres Strait had their lives increasingly circumscribed under the Act. They were considered "a race apart" who would gain nothing by participation in Australian life. Torres Strait Islanders were not allowed to live on Thursday Island prior to 1946 and Islander boat crew members had to sleep aboard while anchored there. Torres Strait Islands were made native reserves and were out of bounds to all but a few officials, clerics and other authorised persons. Crews of trochus vessels that came south to North Queensland ports were not allowed to accept work on shore or make their home there.

The situation in mainland Queensland was somewhat different. The first Torres Strait Islander to settle permanently in the Cairns district arrived in 1905, and by the late 1930s over seventy Torres Strait Islanders were living there. The first generation arrivals were all born in Torres Strait from Pacific Islander, Jamaican, Filipino or New Guinean fathers and Pacific or Torres Strait Islander mothers, and migrated mainly from the eastern Torres Strait Islands. Most were initially involved in the pearling and trochus industries and many were related to each other. Only two of these men ever came under the Act and both appeared to have been under the Act before they arrived in Cairns.. One came to Cairns from Palm Island around 1920 after his brother-in-law, already resident in the Cairns district, agreed to act as guarantor for him. He was exempted from the Act in 1932. The other, from Murray Island, was a fisherman resident in Cairns from 1915 to at least 1925 and later ended up on Palm Island.

The Act did not apply to any of the other Torres Strait Islanders in Cairns. They were free to sit where they liked in the cinemas, unlike Aborigines who had to sit in the front. They were able to drink in hotels and bars with their favourite watering holes being the old Exchange, Royal and National Hotels; they could and did buy property, lived where they liked, and did not ask nor receive permission from the Protector of Aboriginals in gaining employment and managing their pay packets.

In 1934 the Act was amended and the definition of "half-caste" was extended to provide "for the care of all cross-breed elements of Aboriginal or Pacific Islander extraction who live or associate with Aboriginals." This meant that "a large proportion of that coloured population resident principally in North Queensland, who previously have not been regarded as wards of the Aboriginal Department, are now, unless specifically exempt from the provisions of the Act, covered by it." For reasons unknown, this amendment was never implemented in the Cairns district and Torres Strait Islanders resident there remained free from its restrictions.
The 1934 amendments to the Protection Acts had an effect in Torres Strait, extending powers of control to those Pacific Islanders previously exempted and suspending the issue of certificates of exemption. Torres Strait Islanders of Pacific Islander origin and others known locally as "Thursday Island half-castes", formed an association, the Thursday Island Coloured Workers Association, which sought to repeal the amendments. Just who was and wasn’t covered by the Act and subsequent amendments remains unclear. For instance, Sharp recounts the story of one Pacific Islander who continued to be exempt from the Act while resident in Torres Strait, and many Thursday Island residents appeared to remain outside the provisions of the Act as well.

The 1939 Act

In Torres Strait, these additional restrictions imposed by the administration of the Act coupled with the paternalistic rule of the Queensland government and the local Protector, were a major cause of the 1936 Maritime Strike. One of the consequences of the strike was the subsequent introduction of separate legislation for Torres Strait Islanders, the Torres Strait Islanders Act of 1939.

In introducing the bill, the Minister for Health and Home Affairs, noted that:

We propose to deal with the Torres Strait Islanders under an entirely separate Act because they have proved that they are capable of doing a great deal for themselves and do not need the strict control that is exercised over the mainland Aboriginals … I have been requested by the Islanders to have them taken from the jurisdiction of the protectors under the Aboriginals Protection and Restriction of the Sale of Opium Act, as they object to being regarded as Aboriginals.

The 1939 Act was intended to apply to all Torres Strait Islanders, regardless of ancestry for,

While the people living here today might have ancestors on one side of breeding other than Australian natives who have come to the Islands and associated with the natives either by accident or design, there is no doubt that the people who are there now are a race distinct in themselves.

For the purposes of the Act a Torres Strait Islander was:

1.       One of the native races of the Torres Strait Islands
2.       A descendant of the native race of the Torres Strait Islands and is habitually associated with Islanders as defined in paragraph a)
3.       A person other than an islander who is living on a reserve with Islanders as so defined as wife or husband or any such person other than an official or person authorised by the Protector who habitually associates on a reserve with Islanders as so defined.

Other salient features of the Act were that there was no provision for exemptions and that the authority of the Protector was vested solely in the Director of Native Affairs, the Deputy-Director and the Protector of Aboriginals, Somerset District, who was ex Officio Protector of Islanders.

Section C related only to those persons living on a reserve with Islanders as so defined. Thursday Island was not a defined reserve and so many Torres Strait Islanders living here were, technically speaking, not subject to the 1939 Act. This was confirmed when Torres Strait Islanders were evacuated from Thursday Island after the Japanese bombing of Pearl Harbour. The first group of 185 "Coloured evacuees" arrived in Townsville in March 1942. In a memo to the Department of Home Affairs, the Director of Native Affairs noted that these people "Malayan/South Sea Island, Malayan/Chinese and Malayan/Torres Strait Island strain. They have never been subject to the provisions of The Aboriginals Preservation and Protection Acts or the Torres Strait Islanders Act."

Neither were there any reserves in mainland Queensland for Torres Strait Islanders. The 1939 Act therefore had no impact on those Torres Strait Islanders living in Cairns, the Act never being extended to them. After the Second World War, the number of Torres Strait Islanders migrating south for work opportunities and a better life increased and by the late 1950s sizeable communities existed in many of the north Queensland provincial towns. Many Torres Strait Islanders from the eastern islands migrated to the mainland to escape the restrictions imposed on them by the 1939 Act and the associated paternalistic administration.

The deficiencies and defects inherent in the 1939 Act as it related to those Torres Strait Islanders residing on the mainland became increasingly apparent and had reached crisis stage by 1960. On 17 February 1960, the Magistrate at Charters Towers refused to deal with three Torres Strait Islanders appearing before him on charges of disorderly conduct, as they were not represented by a Protector of Torres Strait Islanders in Court. The charges were then withdrawn. Clarification was sought by the Inspector of Police for the Townsville Police District, as the magistrate in Townsville was continuing to deal with minor charges against Torres Strait Islanders. He noted that the "Islanders themselves believe that they are exempt from the Acts mentioned (Torres Strait Islander Act, 1939-1946), and have no difficulty in being supplied with liquor."

The Inspector further believed that

It would appear inconsistent that these Islanders, when on their own Islands are under the provisions of the Acts quoted, and are not allowed to have liquor, yet on the mainland (assuming they are automatically exempted from this Act) they are permitted to obtain liquor.

The Commissioner of Police suggested that "perhaps it would be possible to arrange for an amendment to be made to the Torres Strait Islanders Act to the effect that any Protector of Aboriginals will be, and be deemed to be, a Protector of Torres Strait Islanders." This amendment was requested because the problem had "arisen chiefly through a dearth of Protectors for Torres Strait Islanders and it has been suggested that possibly the only Protectors of Torres Strait Islanders are the Director of Native Affairs and the Protector of Aboriginals at Thursday Island."

However the Minister for Health and Home Affairs, H.W. Noble, ignored this request by the Commissioner of Police, announcing in Parliament on 28 September 1960, in response to a question, that The Director of Native Affairs, Cornelius O’Leary, supported his Minister, noting that:

There is no restriction on any Islander leaving his home island to proceed south as is evidenced by the large number of Islanders now scattered throughout Queensland. These people work without any departmental supervision or direction and their mode of living is not controlled or interfered with. They are therefore in no different position to the exempted Aboriginal.The Torres Strait Islanders Act does not provide for exemption from its provisions. Consequently, a person ostensibly covered by the provisions of the Act, wherever he may be, is subject to the Act.
However the majority of the people known as Torres Strait Islanders and now resident in towns south of Torres Strait, not being on a Torres Strait Island Reserve, are, by the terms of the Act and by blood, not subject to the provisions of the Act.

A copy of the Minister’s reply to the House was subsequently supplied to the Commissioner of Police with an accompanying note:

It would appear that the Torres Strait Islander working on the mainland is in no different position to the exempted aboriginal and would therefore be regarded as exempted from the provisions of "The Torres Strait Islanders Act 1939-1946"
You may be pleased to advise the position in this matter, so the Police in the towns concerned may be suitably instructed.

So, some twenty one years after the enactment of the Torres Strait Islanders Act, 1939, its inherent defects, in relation to those Torres Strait Islanders residing on the mainland, were admitted, and their freedom from its provisions finally acknowledged.