I recently found out that the South Pacific Island Protection Acts (1872 and 1875) were repealed by John Howard in 1999.

I used to think that these acts have not much to do with Aboriginal sovereignty. If you read the acts, and consider their context – they work on the assumption that the Australasian colonies are fully part of the British Dominions. The acts only protect the rights of tribes who are outside of British Dominions and in the Pacific. The acts do not protect the rights of any tribes in what is now Australia, with the exception of Torres Strait Islander tribes who were not part of British Dominions at the time of the acts.

But I since figured out that these acts may be important for Aboriginal sovereignty for another reason. And it is related the repeal of these acts.

I found it interesting that this was repealed in 1999 because it was the year of the republic referendum. I have also noted that the Pacific Island Protection Act is a very special act. It is a special act – not so much because it is to do with protecting the interests of tribes, but because it is in regard to extra-territorial jurisdiction of the imperial system.

The repeal of the Acts

The full repeal of the Pacific Island Protection Act happened in two steps, one step in London 1986 and the other in Canberra 1999. Periodically – for example every year or every few years – a form of legislation housekeeping takes place in common law parliaments, and many old acts are changed and repealed in bulk en masse.

In 1986, the British/Imperial parliament did a mass cleanup of some cobwebs. Here are a few interesting Imperial acts that may have some relevance to Australia that were completely repealed in 1986 just after the Australia Acts passed (full list here):

• Pacific Islanders Protection Act 1875: is an Act to ensure British subjects who are in the Pacific to protect the rights and interests of the local inhabitants. I wrote on a bit about it here

• The British Settlements Act 1887 is: An Act to enable Her Majesty to provide for the Government of Her Possessions acquired by Settlement. It is about giving her majesty the power to establish courts and related activities in terra nullius possessed lands.

• The Nauru Island Agreement Act 1920 was a dead letter since 1973, but it wasn’t until 1986 that it was repealed. It was an agreement to for Australia administer/plunder phosphate in Nauru in a spoils sharing deal with New Zealand and the UK.

I will concentrate on the Pacific Islanders Protection Act for this post – but the other two are also interesting and related to colonialism and the Australia Acts: I might write more about them later.

Timeline

Here’s a timeline of a few things I’m going to put together here;

• Pacific Islanders Protection Act – Two related acts, 1872 and 1875
• Federation – 1901
• Australia Act (Commonwealth) – Assent 4 December 1985, Commenced 3 March 1986
• Australia Act (Imperial) – Assent February 1986, Commenced 3 March 1986
• Statute law repeals act (Imperial) – 2nd May 1986, where the Imperial Pacific Islanders Protection Act was repealed in London
• Criminal Code Amendment Sexual and Slavery Servitude Act 1999 (Commonwealth) assent 24 Aug 1999 – where the Australian Pacific Islanders Protection Act was repealed in Canberra
• Republic Referendum – 6 November 1999
• Amending Acts 1990 to 1999 Repeal Act 2016 – February 2016
• Uluru Statement – May 2017

The Pacific Islanders Protection Act.

For the purposes of this post, concentrate more on WHO and WHERE this act applies, not so much WHAT the act is about. So please forget about slavery, protecting tribes or Blackbirding for now. The special thing about this act is the WHO and WHERE – the jurisdiction of the act.

The 1875 act sets out laws that apply to British Subjects who are temporarily NOT in British dominions. If you are a British Subject, you are normally resident in the Australasian colonies, and you take a trip into the Pacific – this Act applies to your behavior. The laws apply to you even when you are not on British soil, and British soil here includes the Australasian colonies. So these are extra-territorial laws. Wherever an Englishman goes, his law is taken with him.

In a way, a colony runs entirely extra-territorially, because a foreign Crown is the authoritative head of the colony, and assents to all laws. Legislative, administrative and executive function may gradually be shifted to happen on “Australian soil”, however the final assent and sign-off is executed by the foreign Crown.

The Pacific Islanders Protection Act was special because it was a two-hop, extra-territorial act. It was for British Subjects, normally resident in the colonies, regarding their behavior in a third location (the Pacific). It was not a law for ALL British Subjects in the Pacific.

Note the sequence and timing of how it was repealed in sequence with the Australia Acts;

• Pacific Islanders Protection Act – Before Federation, in 1875
• Australia Act (Commonwealth) – Assent 4 December 1985, Commenced 3 March 1986
• Australia Act (Imperial) – Assent February 1986, Commenced 3 March 1986
• Statute law repeals act (Imperial) – 2nd May 1986
• Criminal Code Amendment Sexual and Slavery Servitude Act 1999 (Commonwealth) assent 24 Aug 1999
• Republic Referendum – 6 November 1999

In 1986, the Pacific Islanders Protection Act 1875 was taken off the Imperial books. This happened AFTER the Australia Acts, so it had no effect on Australian law because the Australia Acts created a separation between Imperial laws and Australian laws. The Statute law repeals act (Imperial) 1986 had no effect except cleaning up dead paperwork on the London side.

The Criminal Code Amendment Sexual and Slavery Servitude Act 1999

Moving on to 1999: this is where things get interesting. The Criminal Code Amendment Sexual and Slavery Servitude Act 1999 was passed in the lead-up to the 1999 Republic Referendum. This act repealed – in Australian law; the Pacific Islander Protection Act 1872 and 1875, and other imperial acts relating to slavery. This act basically re-enacted and modernised imperially inherited anti-slavery laws.

In jurisdictional scope, the Criminal Code Amendment Sexual and Slavery Servitude Act 1999 (I’m just going to call it the 1999 slavery act) is way more extensive than the Pacific Islanders Protection Act. The 1999 slavery Act overall does not just apply to Australian subjects/citizens whilst abroad in a specific region. Specifically, the sections regarding sexual servitude apply to actions committed overseas, and apply regardless of citizenship or residency status in Australia! This is extraordinary because a Crown normally has jurisdiction over Crown subjects and over Crown lands – yet this 1999 Act extends beyond both factors at the same time.

This act is perhaps Australia’s first home-grown, extra-territorial Act. This makes it a milestone of legislative independence. It has removed two-hops laws against slavery, and made a direct and distinctly Australian, extra-territorial, modern anti-slavery law.

This slavery act was assented to just before the failed 1999 Referendum when Australia was supposed to become a republic. I believe this special extra-territorial act was part of preparations to facilitate decolonisation of Australia via integration. Integration as a decolonial strategy (preambular recognition – 1999, YouMeUnity, Recognise) was dumped with the Uluru Statement. The 1999 slavery act was later repealed in 2016, not long before the Uluru Statement. The lifetime of the 1999 slavery act lines up perfectly with Australian policy towards decolonisation by integration.

Think about it – for Australia – perhaps all land is extra-territorial, because Australia has not yet properly secured it’s land through treaty. For decolonisation via integration/preambular recognition to happen, parliament needs to be able to “grab” the ability to legislate for territory it hasn’t gotten through treaty. Parliament demonstrates this extra-territorial jurisdiction using the 1999 slavery act. But the Uluru Statement has a treaty built-in, so demonstrating extra-territorial jurisdiction isn’t needed, as the treaty will secure the land. Hence the extra-territorial 1999 slavery act wasn’t needed, and was repealed before the Uluru Statement.

TL;DR

The real significance behind the Pacific Islander Protection Act is not about saving the rights of the tribes, it is about jurisdiction.

The British empire passed laws that apply to British Subjects who are normally resident in external British realms, but who are temporarily outside of those realms.

Australia one-upped that, and passed laws that apply to persons who are not Australian citizens, who are not even Australian residents, and for acts committed outside of Australian territory.

A head of a Commonwealth (a crown) has jurisdiction over acts committed on it’s territory, and has jurisdiction over it’s subjects even when those subjects are not present in the territory. So, as a constitutional monarchy – what basis of authority does the Australian Parliament have to pass legislation to prosecute acts committed by non-subjects outside of the Australian Crown’s territory?

I would argue that the 1999 slavery legislation is ultra vires (beyond their right authority). They are a law unto their own.

Another thing I would say is: don’t use the Pacific Islander Protection Act as a tool to argue for tribal autonomy or sovereignty. Not only did the acts never protect our rights to begin with, but the legislation that replaced it between 1999 and 2016 was very draconian in it’s jurisdictional scope. Bringing up the Pacific Islander Protection Act as an argument for tribal autonomy is like putting a sticker on your back saying “please use your fake Australian Crown to make laws over us”. We should be doing the opposite, and telling the colony to back-off and stick their laws where the sun don’t shine – at least until there is a political settlement.