How the Aboriginal Tent Embassy challenged the government’s protest laws

Tomorrow is the 43rd anniversary of the establishment of the Aboriginal Tent Embassy outside (Old) Parliament House in Canberra. This post is about how the Tent Embassy challenged the protest laws enacted by the McMahon government the previous year, which sought to quash dissent outside the house of Federal Parliament. The McMahon government believed it had the necessary powers to deal with the protest movement that had developed since the late 1960s, but the Tent Embassy demonstrated that political protest was a much more fluid concept and one that puzzled the Liberal-Country government.

Part of this post will be in a forthcoming article on the Public Order Act 1971 and the policing of protest in Canberra in the 1970s (which should be available later this year).

Tent Embassy

In May 1971, the McMahon government introduced the Public Order (Protection of Persons and Property) Act 1971 (Cth) to police the growing protest movement in the nation’s capital and to prevent ‘violent’ demonstrations outside (Old) Parliament House, as well as outside the US, South Vietnamese and South African embassies. A week after the Act was introduced, it was used against an Anti-Apartheid and an anti-Vietnam War demonstration, and then in July 1971, when people protested against the Springbok rugby tour coming to Manuka Oval. At these three demonstrations, hundreds of people were arrested for violating the new Act. Despite this seemingly successful application of the Public Order Act in 1971, the McMahon Government soon found that itself debating whether it had the necessary legislation to combat other forms of protest.

On Australia Day 1972, a group of Aboriginal activists, having travelled from Redfern in Sydney to Canberra, erected a camping site on the lawns outside (Old) Parliament House and established the Aboriginal Tent Embassy. The purpose of the Aboriginal Tent Embassy was to advocate for land rights against the limited measures introduced by the Liberals since the 1967 referendum[i] and to protest against remarks made by the Prime Minister concerning the ‘assimilation’ of Australia’s Aboriginal people on Australia Day.[ii] As Scott Robinson wrote, the Embassy protestors ‘demanded retraction of the Australia Day statement [by McMahon] and compensation for stolen lands, and warned the government that the embassy would stay until these demands were met.’[iii] As the Embassy gained attention from the media, other protest groups and even the diplomatic staff on some Soviet Bloc and non-aligned countries, the Government debated over what action to take to remove the protestors from their site.

On 23 February, 1972, former Prime Minister John Gorton asked the Minister for the Interior, Ralph Hunt, what the Government intended to do with the Embassy protest, to which Hunt replied,

I am, of course, well aware that a number of tents have been pitched outside the national Parliament in Parliament Place. The people concerned are Aborigines who are demonstrating in a peaceful way for a case in which they believe. I must say that they have been quiet and they have behaved and cooperated with the police extremely well… But I think that in the future we will have to look at an ordinance to ensure that Parliament Place is reserved for its purpose – a place for orderly and peaceful demonstration, but not a place upon which people can camp indefinitely thereby perhaps preventing other people from using it from day to day… The Australian Capital Territory police have been in constant contact with them. They have observed every request that the police have made of them, and up to date they have not disobeyed any request. But the question of reserving Parliament Place for its proper intention and proper requirement is under consideration.[iv]

It was believed by the Government and the police that there were no laws to prevent the Aboriginal activists from erecting a camping site on the lawns of Parliament House as the Trespass on Commonwealth Lands Ordinance 1932 (Cth) excluded Aboriginals from being prosecuted under this Act. Roberta Sykes, one of the activists at the Embassy, wrote in her biography (and cited by Andrew Schaap and Paul Muldoon):

At the time, the Northern Territory was just that, a territory, administered by the politicians and public servants in Canberra, and containing quite large sections of Crown land. The government had framed a law that there was to be no camping on Crown land. However, because Crown land in the Northern Territory was home to dispossessed Aboriginal people who had nowhere else to live, this law specifically excluded Aborigines. The expanse of Crown land in front of Parliament House was also Crown land, but it had obviously never entered the minds of the politicians that Aboriginals would set up camp there.[v]

Scott Robinson, in his 1994 article, wrote that ‘the only applicable legislation… was the Gaming and Betting Ordinance, s.19(a), which imposed a forty dollar fine for loitering in a public place’, but this was not used.[vi] Roger Brown has demonstrated that this Ordinance was used in January 1972 to ‘move on’ a demonstrator conducting a ‘solitary picked outside the Israeli Embassy’, but an internal government document suggested that this provision ‘should not be used in view of public criticism of its use in the [Police v] Merhav case’.[vii] The ‘often-repeated story of the legal loophole’, as described by Schaap and Muldoon, does not mention whether the Public Order Act was considered by the Government, and discussion of this new legislation is conspicuously absent from Government documents and Parliamentary debates as well. However if Ralph Hunt’s description of the Embassy, taken from the above quote as ‘preventing other people from using it from day to day’, was used, it might have been possible – at a stretch – to view the Embassy as creating an ‘unreasonable obstruction’ to access to the Parliament House lawns and thus a violation of Section 9 of the Public Order Act.[viii] Simon Bronitt and George Williams have suggested that the Aboriginal Tent Embassy was a protest that formed a political discussion with the institution of Parliament and that the Government’s powers to restrict this discussion, due to its proximity to Parliament House, were symbolically weakened by the 1912 High Court decision in R v Smithers; Ex parte Benson, which ‘recognised an implied right of access to government and to the seat of government.’[ix]

In March 1972, the McMahon Government started drafting amendments to the Trespass on Commonwealth Lands Ordinance 1932 that would remove the exception of Aboriginal camps from the legislation and by the end of June, the Trespass on Commonwealth Lands Ordinance 1972 was created that made it illegal for a person to camp or erect a structure on unleased land, owned by the Commonwealth.[x] Believing that this Ordinance was now in effect, on 20 July, 1972, the police removed the structures of the Embassy and eight protestors were arrested. Scott Robinson claims that Police Inspector Osborne ‘made several announcements over the megaphone, warning the protestors to move away from the tents, and advising them that “if you fail to move you may be arrested for obstructing police”’,[xi] but does not say whether this was an invocation of the Public Order Act.

An application was made by some of the Embassy protestors and fellow-travellers to the ACT Supreme Court that the Ordinance had not been in effect (it had not been given notice in the Commonwealth Gazette) when the police dismantled the Embassy’s structures. In September 1972, Justices Fox, Blackburn and Connor delivered the verdict in the case of Golden-Brown and others v Hunt and another that the Ordinance has not been given the sufficient Gazette notice before the removal of the Embassy and its protestors and the use of the Ordinance was not lawful at that moment.[xii] In the ensuing debacle, Parliament debated whether the Ordinance should be re-instated and in the final weeks before the dissolution of Parliament before the 1972 election, ‘former government minister Jim Killen crossed the floor to vote with the opposition over the re-gazettal of the ordinance’[xiii] and when Whitlam won the election in December 1972, Labor decided not to re-introduce the Ordinance. As Schaap and Muldoon have argued, ‘having first acknowledged that the Aboriginal demonstrators were technically permitted to camp in front if Parliament House, it proved difficult for the government to recharacterize the Embassy as an act of trespass.’[xiv]

On 17 October, 1973, the Embassy was re-erected on the lawns outside (Old) Parliament House and lasted at this spot until 13 February, 1975, then established at several different sites around Canberra until 26 January, 1992, when the Embassy was re-built on its original site and remains there until the present day.[xv] Since the mid-1990s, the Embassy has been recognised as ‘a site representing political struggle for all Aboriginal and Torres Strait Islander people’ and a place of ‘significance for the local Aboriginal community’ as a traditional ‘meeting and gathering ground’.[xvi]

aboriginal_tent_embassy_1972_2

[i] Much has been written about the Aboriginal Tent Embassy, but some of the best articles are: Scott Robinson, ‘The Aboriginal Embassy: An Account of the Protests of 1972’, Aboriginal History, 18/1, 1994, pp. 49-63; Heather Goodall, Invasion to Embassy: Land in Aboriginal Politics in New South Wales, 1770-1972, Allen & Unwin, St Leonards, 1996, pp. 335-351; Kathy Lothian, ‘Moving Blackwards: Black Power and the Aboriginal Embassy’, in Ingereth Macfarlane & Mark Hannah (eds), Transgressions: Critical Australian Indigenous Histories, ANU E-Press, Canberra, 2007, pp. 19-34; Paul Muldoon & Andrew Schaap, ‘Aboriginal Sovereignty and the Politics of Reconciliation: The Constituent Power of the Aboriginal Embassy in Australia’, Environment and Planning D; Society and Space, 30, 2012, pp. 534-550

[ii] Robinson, ‘The Aboriginal Embassy’, p. 49

[iii] Robinson, ‘The Aboriginal Embassy’, p. 51

[iv] Hansard, House of Representatives Parliamentary Debates, 23 February, 1972, p. 108

[v] Roberta Sykes, cited in Schaap & Muldoon, ‘Aboriginal Sovereignty and the Politics of Reconciliation’, p. 546

[vi] Robinson, ‘The Aboriginal Embassy’, p. 52

[vii] Brown, ‘“And Hast Thou Slain the Jabberwock?”’, p. 116; Department of the Interior, ‘Campers on Parliament House Lawns’, Aide Memoire, 27 June, 1972, reproduced at: http://www.reasoninrevolt.net.au/pdf/d0635.pdf (accessed on 16 August, 2012). See also: ‘New Israeli Protest Called Off’, Sydney Morning Herald, 7 January, 1972

[viii] Under the Public Order Act, ‘unreasonable obstruction’ means ‘an act or thing done by a person that constitutes, or contributes to, an obstruction of, or interference with, the exercise or enjoyment by other persons of their lawful rights or privileges (including rights of passage along the public streets) where, having regard to all the circumstances of the obstruction or interference, including its place, time, duration and nature’. Public Order (Protection of Persons and Property) Act 1971 (Cth) s.4.(1)

[ix] Simon Bronitt & George Williams, ‘Political Freedom as an Outlaw: Republican Theory and Political Protest’, Adelaide Law Review, 18, 1996, p. 302

[x] Trespass on Commonwealth Lands Ordinance 1972 s. 3

[xi] Robinson, ‘The Aboriginal Embassy’, p. 55

[xii] Golden-Brown and others v Hunt and another, 12 September, 1972, Federal Law Reports, 19, 1972, pp. 438-451

[xiii] Robinson, ‘The Aboriginal Embassy’, p. 62

[xiv] Schaap & Muldoon, ‘Aboriginal Sovereignty and the Politics of Reconciliation’, p. 547

[xv] Coral Dow, ‘Aboriginal Tent Embassy: Icon or Eyesore?’, Parliamentary Library Paper, 4 April, 2000, http://www.aph.gov.au/library/Pubs/chron/1999-2000chr03.htm (accessed 13 January, 2010)

[xvi] Australian Heritage Council, ‘Aboriginal Embassy Site’, Australian Heritage Places Inventory, http://www.heritage.gov.au/cgi-bin/aphi/record.pl?RNE18843 (accessed 13 January, 2010)

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