Parliament’s current obsession with s18c

On ‘Harmony Day’ yesterday, the Turnbull government announced that it would seek to introduce legislation that would amend the Racial Discrimination Act 1975 (Cth) to remove the words ‘insult’ or ‘offend’ from section 18c of the Act. Under these proposed changes, only racial ‘harassment’ or ‘intimidation’ would be prohibited.

To many, this seemed like a pet project of the conservative right of the Liberal Party and some right libertarians that had gained too much attention. A number of commentators pointed to the continued discussion of the s18c in the opinion pages of The Australian, as well as the columns of News Limited commentators like Andrew Bolt or the journal Quadrant. The amount of media space devoted to criticising s18c and the Australian Human Rights Commission (who enforce the Racial Discrimination Act) seems to most to be out of proportion with mainstream public opinion in Australia.

In response to yesterday’s announcement, Fatima Measham from the current affairs website Eureka Street commented:

one thing I really enjoy recalling is that RDA laws only became a thing after Indigenous people won a federal court case against Bolt

— Fatima Measham (@foomeister) March 20, 2017

This got me interested. How had the discourse surrounding s18c of the Racial Discrimination Act changed since Andrew Bolt was found to have contravened the Act in 2011?

In September 2011, Andrew Bolt was found by the Federal Court to have authored two columns that contravened s18c. In response, a number of those on the right of politics, as well as many in the media from the ‘centre’, complained about the verdict and proposed for the wording of the Act to be changed. In the lead up to the 2013 election, the Liberals inserted this policy proposal into their manifesto.

With Andrew Bolt regarded as a close personal friend, Prime Minister Tony Abbott first floated changing the Act in 2014, but with significant resistance from ethnic minority organisations and other progressive groups, Abbott dropped this initiative.

But the issue didn’t go away. The Australian continued to campaign for the working of s18c to be changed. So did some within the Liberal Party, such as Senator Cory Bernardi, or Abbott once he returned to the backbench. And since Turnbull’s rapid decline in the opinion polls, the conservative right have been using the issue to criticise Turnbull and assert themselves, despite their numerical sparsity.

Using Parlinfo, I looked into how often had the issue been raised in Parliament since s18c came into effect in 1995, as part of the amendments to 1975 Act instigated by the Racial Hatred Act 1995 (Cth). And here are the results:

	HoR	Senate
1994	7	1
1995	0	2
1996	1	0
1997	0	0
1998	0	0
1999	0	0
2000	0	0
2001	0	0
2002	0	0
2003	0	0
2004	0	0
2005	0	0
2006	0	0
2007	0	0
2008	0	0
2009	0	0
2010	2	0
2011	0	0
2012	3	3
2013	8	2
2014	40	58
2015	33	20
2016	38	59
2017	58	20

As the above table shows, despite from an initial flurry in the mid-1990s (when the Racial Hatred Bill/Act was debated and passed), it was not until 2014 that the issue really becomes a topic of discussion in parliament. Discussions of the subject went down significantly in 2015, after Abbott dropped the issue, but was revived the following year, especially in the Senate – now home to a number of Senators on the political far right. The below graphic also illustrates the sudden rise in discussion of the issue since the Liberals have regained office.

Even though the Racial Hatred Act was passed more than 20 years ago and s18c has been part of the Racial Discrimination Act framework since then, it was only in recent years that conservatives and right libertarians have taken up the issue. This is demonstrated by the discussion of the issue in Parliament.

A much broader analysis of how and how much the issue has been discussed in the media is needed, but that’s for another time.

 

 

Theresa May and UKIP: A repeat of Thatcher and the NF in ’79?

While everyone is falling over themselves to make analogies between the Labour Party of the 1980s and that of today under Corbyn (or stressing that it’s not a repeat of that decade), we are also in danger of seeing Theresa May’s time (however long) as Prime Minister through the prism of Margaret Thatcher.

In the post-Brexit world, nothing can be taken for granted anymore when it comes to British politics, so any predictions are fraught with error and future embarrassment. With that, despite the prediction by Norman Tebbit that ‘May will drive Tory members into the arms of UKIP’, I am thinking that Theresa May becoming Prime Minister will split the post-Farage UKIP. While Brexit has not been ensured, UKIP’s most prominent policy has been, more or less, achieved, and in the past, single issue groups have struggled to change their message/strategy once their primary objective has been fulfilled or become irrelevant. Coupled with Farage leaving the leadership spot, UKIP look rudderless and will now try to siphon off the anti-immigration vote from both Labour and the Tories as they will probably re-fashion themselves as the ‘sensible’ anti-immigration party – to the right of the Tories but not associated with fascism of Britain First or the British National Party.

This might continue to be a problem for Labour, but May’s record as Home Secretary and her continued ‘tough’ talk on immigration may attract the ‘soft’ UKIP vote back to the Tories. While Cameron was seen as ‘weak’ on controlling immigration, the Home Office under May made the rules incredibly more difficult for non-EEA migrants and their families (and her comments on the future of EU migrants in the UK have not calmed the fears of many). Some UKIP supporters will think that May has not done enough, but many might be swayed by her track record and ‘effort’ in trying to restrict immigration from the EU and the rest of the world.

This is where the Thatcher comparison comes in. Thatcher’s public pronouncements on immigration in the late 1970s helped make her look ‘tough’ on the issue, particularly her comment in 1978 that people were feeling ‘rather swamped’ by Commonwealth migration. Furthermore, the Conservative Party manifesto for the 1979 election announced that the Tories would introduce ‘firm immigration control’ that would ‘end persistent fears about levels of immigration’. After this, the Tories were able to attract a significant number of voters who might’ve voted for the National Front previously and the NF’s vote was greatly diminished at the 1979 election.*

While I am sceptical about making too closer historical comparisons between May and Thatcher, it is plausible that May’s rhetoric might drive a similar wedge between those who waver between UKIP and the Tories, and those who are ‘rusted on’ UKIP supporters. If a snap election is called, this is certain a possibility. Otherwise, it will depend whether new Home Secretary Amber Rudd follows May’s hardline approach to immigration.

1951 and the attempt to ban the Australian Communist Party: When Turnbull’s predecessor gambled on a double dissolution election

Yesterday Australian Prime Minister Malcolm Turnbull announced that if the Senate did not pass two pieces of legislation to re-establish the Australian Building and Construction Commission (ABCC), he would call for the Governor-General to issue the writs for a double dissolution election. This would mean that all seats in both the House of Representatives and the Senate would be contested at the election to be held on 2 July. Only a handful of double dissolution elections have occurred sine Federation in 1901, with the first double dissolution called by a Liberal Prime Minister occurring in 1951, requested by Sir Robert Menzies.

Menzies had won government in December 1949, defeating Ben Chifley’s Labor government, which had been in power since the end of the Second World War. The Liberal-Country Party coalition had made significant gains in the House of Representatives, but Labor still controlled the Senate, which made the passing of controversial legislation difficult, especially as a central part of the LCP’s programme in the lead up to the election was the proposal to ban the Communist Party of Australia (CPA).

The CPA had been briefly banned during the war while Menzies was Prime Minister, but this was reversed by Chifley’s predecessor, John Curtin. As the Cold War erupted in the late 1940s, the CPA took a particularly militant line, partially inspired by the rise of communism in Asia and assertion by the Soviets that the world was falling into two opposing camps – the democratic and ant-fascist bloc of the Soviet Union and the Eastern European ‘People’s Democracies’ (soon to be followed by China) and the anti-democratic and fascist bloc of the Western nations. This led to fierce battles in the Australian labour movement over its stance towards Chifley’s Labor government, with the CPA-led trade unions pushing for confrontational industrial militancy in several industries. This came to a head in 1949 with the Coal Strike that led to the Chifley government ordering troops to break the strike and the imprisonment of several Communist trade unionists.

Sir Robert Menzies

This industrial unrest gave Menzies the opportunity to campaign on the programme that an LCP coalition would ban the CPA. Drawn in tandem with the Suppression of Communism Bill by the Malan government in apartheid South Africa, the Menzies government drafted the Communist Party Dissolution Bill in early 1950. First introduced into the House of Representatives in April 1950, the Bill was opposed by Labor and heavily criticised outside of Parliament by the Communist Party and a significant portion of the trade unions. Initially rejected by the Labor controlled Senate, Menzies threatened a double dissolution election and Labor senators, possibly against the public statements made by Chifley, passed the Bill into law in October 1950. The legislation banning the CPA was broad in its scope and meant that fellow travellers who sympathised with Soviet communism could be prosecuted, as well as ‘official’ members of the Party.

As soon as the Bill became law in November 1950, it was subject to a High Court challenge by the Communist Party and several trade unions, with H.V. Evatt (soon to be Labor leader) acting as one of several counsels for the trade unions in this case. On 9 March, 1951, a 6-1 majority of the High Court of Australia found that the Communist Party Dissolution Act was unconstitutional and its powers to prosecute individuals for their alleged connection to the CPA violated what could be included in Commonwealth legislation. To re-introduce legislation banning the CPA would need a change to the Constitution, which itself needed a referendum to allow these changes. Without control of the Senate, Menzies felt that he would be unable to pass the necessary legislation to alter the Constitution and subsequently, formally ban the Communist Party of Australia.

On 15 March, 1951 – a week after the High Court’s decision – Menzies formally requested that the Governor-General order a double dissolution election, on the grounds that the Labor controlled Senate had already twice rejected his Commonwealth Bank Bill. Two days later, both houses of Parliament were dissolved and a bicameral election was held on 28 April, 1951. While Labor gained five seats in the House of Representatives, Menzies won control of the Senate and now had a majority in both houses.

This allowed the Menzies government to introduce legislation that would start the process to change the Constitution that would render any new Bills to ban the Communist Party legal and without grounds to challenge. With control of the House of Representatives and the Senate, the Menzies government quickly passed the Constitution Alteration (Powers to Deal with Communism and Communists) 1951 Act and a referendum was held on 22 September 1951.

As the above graph shows, the states of New South Wales, Victoria and South Australia voted ‘no’ and at the federal level, a slight majority voted against altering the Constitution to allow the banning of the CPA. While the gamble of the double dissolution had paid off for Menzies, his attempt to change the Constitution to ban a specific political organisation failed and was seen as government over-reach by many commentators.

The CPA’s weekly newspaper, The Tribune, after Menzies’ referendum defeat.

Since Menzies, there have only been four double dissolutions, by Gough Whitlam in 1974, by Malcolm Fraser (in caretaker mode) in 1975 and 1983, and by Bob Hawke in 1987. Each time the incumbent government, besides Fraser in 1983, has retained power – although in the case of Whitlam, only briefly. It could be argued that powerful political conviction on a controversial, yet important, topic has helped governments get over the line in double dissolution elections. The question is whether the Turnbull government have this conviction or the right issue to take to the electorate if they proceed with a double dissolution.

New article in Journal of Australian Studies: Policing Protest in the Australian Capital Territory

Just a quick post to let you all know that the latest issue of Journal of Australian Studies features my long awaited article on policing protest in the ACT in the early 1970s. The full title of the paper is ‘Policing Protest in the Australian Capital Territory: The Introduction and Use of the Public Order Act 1971’. The abstract is below:

This article examines the reaction by the Australian Federal Government to the protest movements of the 1960s–1970s and their attempts to use public order legislation to thwart radical discontent in Australia. It argues that the Public Order (Protection of Persons and Property) Act 1971 was aimed at the threat of “violent” protests, particularly the tactic of the “sit-in”, and that to this end, the legislation was an overreaction to the actual threat posed by the protest movements at the time. It also shows that after a long gestation period, the Act was ill-equipped to deal with the changing nature of demonstrations in the 1970s, such as the problems caused by the erection of the Aboriginal Tent Embassy. Thus, after an initial flurry of use in mid-1971, the law has been seldom used since.

You can find the article here. If you use academia.edu, you can access the article here.

Public engagement ftw!

Two guest posts by yours truly have been published in the last two days. The first is on my research into the UK perspective on the dismissal of Gough Whitlam in 1975 and has been published by The Conversation. The second is on Oswald Mosley’s British Union of Fascists and their view of Australia as a ‘proto-fascist’ settler colony. This post has been published by the wonderful Imperial and Global Forum run by the University of Exeter.

I did a radio interview about the Whitlam controversy with Dom Knight on ABC Radio Sydney last night. I think the episode is available for reply for the next week.

 

The road to ‘The Dismissal’ in 1975: The British perspective

From The Guardian, 12 November, 1975, p. 13.

The Museum of Australian Democracy has announced that in commemoration of the fortieth anniversary of the dismissal of the Whitlam government, it will be tweeting the events of late 1975 leading up to 11 November. This will be a very interesting for those into in Australian history and helpful in understanding how the events in the weeks beforehand led to the dramatic dismissal of Whitlam by the Governor-General John Kerr.

For the last few years, one of my many research projects has been looking at how the UK government reacted to the dismissal and when I was last in the UK, I examined the FCO files relating to the ‘constitutional crisis’ of 1975. These files, which I discussed here and here, are mainly correspondence between the British High Commission in Canberra and the FCO in London, giving an account of the events leading up to the dismissal and then offering advice to the Wilson government on how to proceed, particularly as there was confusion over whether the Queen could have intervened in the crisis. One of the very interesting things to read in the files is the interpretation of the events leading up to 11 November, 1975 from the perspective of the staff at the High Commission. These are mostly letters written from J.M. Hay in Canberra to Alan Clark in the South-West Pacific Department of the FCO in London. I thought I would highlight some of this correspondence from the files.

On 22 September, 1975, Hay wrote:

The phoney war over the prospects for an early election continues thanks to Mr Fraser’s unwillingness to come out firmly one way or the other. It looks as though he is still casting around for an excuse but the indications are that the initiative is slipping out of his grasp…

There are indeed strong hints that the Mr Whitlam would soldier on should the Senate block supply and would return the budget bills to the Upper House for reconsideration while gradually turning off the tap on various Federal financial commitments. I doing so, he would hope to persuade the electorate that the Opposition was doing damage both to the Constitution and to the economy and thereby reverse the trend in the opinion polls.

On 23 October, Hay outlined that while the Senate continued to block supply to the Whitlam government and the Prime Minister refused to hold an election, both Whitlam and Fraser were looking to the Governor General to make a decision on this stalemate. Hay wrote:

Mr Whitlam and Mr Fraser seem set on a collision course, and more and more often the Governor-General is mentioned as the final arbiter. Mr Whitlam has given his very firm opinion that the Governor-General cannot take any step such as dissolution of Parliament without the advice of the Prime Minister… Mr Fraser, on the other hand, has made equally clear his opinion that the Governor-General has the power and the duty to dismiss the Government in order to resolve the crisis. It must be a very lonely time for Sir John Kerr.

On 31 October, Hay wrote:

We do not seem to be much nearer a solution to the political deadlock in Canberra and both Mr Fraser and Mr Whitlam are standing firm on their positions. It begins to look, however, as though the former’s support, both amongst his own colleagues and in the country, is beginning to leak away.

The letter continued:

Mr Fraser is now in the position that he can no longer be absolutely sure of the support of his colleagues in the Senate… Mr Fraser must now seriously doubt whether Opposition Senators will continue to fall into line on motions of deferral, never mind one of outright rejection of supply.

Hay concluded his letter that there were ‘no signs of compromise’, but that Fraser was unlikely to ‘gain… the support he need either in the Senate or in the country’.

On 7 November, Hay described an offer by Malcolm Fraser to Whitlam to pass the supply bills being held up in the Senate if Whitlam would call for an election of the House of Representatives and half of the Senate. Hay said that the High Commission was surprised by this offer by Fraser, writing:

It is difficult to see what Mr Fraser hoped to gain out of making an offer which he must have known… that Mr Whitlam, who believes that Governments are made and broken in the House of Representatives, would reject out of hand. In making the offer Mr Fraser also damaged his own position by effectively shifting his ground from a stance of principle to an admission that his tactics have been no more than a grab for power. In doing so he showed weakness in the face of the enemy – and few now have any doubts about the degree of personal animosity which exists between the two leaders – which would inevitably stiffen Mr Whitlam’s resolve.

Throughout the correspondence from late September to early November, Hay expressed concern that the deadlock was continuing and lamented that both Whitlam and Fraser seemed unwilling to compromise. It seemed, from Hay’s writing, that the British High Commission were dissatisfied Fraser’s politicking and expected that the Opposition’s tactics would not lead to the dismissal of the government in Fraser’s favour. My reading of this correspondence suggests that the High Commission expected Whitlam to survive the crisis and that the Australian public were not interested in returning the polls so quickly, as an election had been held in 1974 and was not due to be held until 1977.

Also evident in the correspondence was a concern that the Governor-General might have sought advice from the Queen or the British government. The view expressed by the High Commission to the FCO was that this was unlikely, but not impossible. In a letter from the FCO to the Foreign Minister, Lord Goronwy-Roberts, dated 24 October, suggested that while the best strategy was to do nothing for the time being, but also wondered whether it would be appropriate for the Queen’s Private Secretary ‘be advised to get in touch with Sir John Kerr with a view of “blocking off” any attempt to involve The Queen in Australian domestic politics’. However it was decided:

such advice could well offend the Governor-General who might feel he was being told how to advise on a matter for which he is already well qualified, while Mr Whitlam, if he heard of it, would inevitably suspect the UK’s involvement.

However when the dismissal did occur, the High Commission were taken by surprise and there were debates about what to send Fraser after being made caretaker Prime Minister as ‘a message in conventional terms would clearly be inappropriate’. In a telegram from the High Commission to the Prime Minister’s Office, dated 12 November, it was recommended that Harold Wilson ‘be advised to send a brief but friendly message’, wishing ‘Mr Fraser and his government well in discharging the responsibilities of their new offices and look forward to working with them in the spirit of friendly co-operation which traditionally shapes relations between British and Australian governments’.

As anger in Australia was directed towards the Governor-General, the representative of the Queen in Australia, the British government was steadfast to avoid being involved in the crisis. A telegram sent on 13 November from the FCO to the High Commission clearly stated:

It has accordingly been decided that UK ministers should avoid any involvement in this exclusively Australian domestic political dispute.

It was proposed that the line to take by those at the High Commission would be:

There is no Ministerial or Parliamentary responsibility at Westminster. It would be highly improper for any of us to enter into these very difficult problems – constitutional and others – which have arisen in Australia.

Despite earlier predictions that Whitlam would survive this challenge by Fraser, after the dismissal, the High Commission predicted that the Liberals would win, although they feared that the Liberals would control the lower house while Labor would control the Senate, leading to the same predicament in 1976. The High Commission started to favour a Liberal-National Party victory as this would mean closer and more straightforward ties between Australia and the UK, believing that if Labor was re-elected, Whitlam would seek to loosen ties with the UK, particularly making moves towards abolishing Australia’s ties to the British Monarchy.

In the end, the fears of the British were allayed by the electoral victory of Fraser’s Liberal-National Party coalition. These files reveal that the British government were keenly following the events in Canberra leading up to the dismissal in November 1975, while hoping that the events would engulf them and require intervention by London or the Queen. It is interesting to see that the High Commission underestimated the tenacity of Malcolm Fraser to unsettle the Whitlam government and to provoke such a crisis that needed the Governor-General to act in the way that he did. The 1970s saw the relationship between Australia and the ‘mother country’ greatly change, with Britain’s entry into the European Economic Community and this constitutional crisis affecting the traditional ties. While the Australian side is well-known by now, the perspective of the British on this untangling is yet to be fully uncovered.

 

(And it would be great to find the US perspective on this in the future too!)

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).

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]

[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)