For the past couple of years I have been researching, on and off, the story behind the 1908 High Court case Potter v. Minahan – a case which revolved around the question of exactly who could be an Australian. A short article about the case and my research has just been published in in the National Archives of Australia’s Memento magazine, issue 38, 2010, pp. 16–18. You can download the whole issue as a pdf (4mb), or just read my article below.

It seems somehow fitting (although coincidental) that I’m posting this on Australia Day. Not only does Potter v. Minahan centre on the idea of who belongs as Australian, it was on 26 January 1908 that James Minahan arrived in Melbourne (via Sydney) from Hong Kong on the S.S. Wollowra. Instead of being allowed to land, and to meet the friends of his father’s who had come to collect him from the ship, Minahan was held on board until an interpreter could be arranged so that Customs officers could interview him. Customs decided that Minahan could not land in Melbourne, and he was sent back to Sydney so that he could be deported back to China.

But that didn’t end up happening either…

Aussie lad or Chinese scholar?

A researcher’s journey through the archives can lead to unexpected discoveries and unknown places. But what happens when a tantalising archival trail arrives at a dead end? Dr Kate Bagnall shares an unsolved archival mystery she uncovered while researching Australia’s historical connections to China.

In the winter of 1882, the parents of five-year-old Jimmie Minahan packed up their home in the small mining settlement of Indigo in northern Victoria and made their way south to Melbourne. Jimmie had been born at the lying-in hospital in Melbourne to 17-year-old Winifred Minahan in October 1876. Winifred was also Melbourne-born, the eldest daughter of immigrant Irish parents. Jimmie’s birth registration made no record of his father’s name, for his parents weren’t married, but he did not grow up fatherless. Soon after Jimmie’s birth, his father, Chinese storekeeper Cheong Ming, took Winifred and the baby back to their home in Indigo. Until the age of five this was the only home Jimmie knew.

The family’s return to Melbourne in 1882 was the first part of a journey that would see members of the small family separated forever. Cheong Ming had become ill and wished to return to China to recuperate, taking young Jimmie with him to receive a Chinese education. Winifred was not to accompany them, and spent her final weeks with Jimmie in Melbourne as Cheong Ming made preparations for the longer journey ahead. Having lost a baby daughter to severe bronchitis only months earlier, Winifred would likely have been saddened by the departure of her little boy – perhaps comforted by the thought that he would return to Australia once his father had recovered.

The father and son’s destination was Cheong Ming’s home village in the southern Chinese province of Guangdong. From Melbourne, the pair travelled to Hong Kong, then by boat to the district capital of Jiangmen, and from there to the village itself. The village name as recorded in Australian court records was Shek Quey Lee. It was the first time that Cheong Ming had returned home since he left for Australia in the early 1860s, but he quickly settled back to village life, taking on the role of local schoolmaster. The process of adjustment was more difficult for young Jimmie, who later described his tears as his father shaved his head according to Chinese fashion and as he encountered the ‘foreign devil boy’ taunts of his schoolmates.

From gum trees to Confucian classics

As time passed, Cheong Ming’s health did not improve and he and Jimmie remained living in Shek Quey Lee. They lost touch with Winifred, and Jimmie’s memories of his mother gradually faded. The little Australian lad, raised in the bush with red dirt and gum trees, became a Chinese boy, schooled in Confucian classics and fluent only in his father’s native tongue.

The Australian part of the story of Cheong Ming and Jimmie could well have ended there, as it did for many Chinese who chose to return to China after trying their luck in the Australian colonies during the second half of the nineteenth century. But when Cheong Ming left Australia, he had maintained a share in the business he owned at Indigo and his partner Chin Shing regularly remitted a share of the profits to China. Cheong Ming had also instilled in his son the belief that one day he should return to Australia, indeed that it was his birthright, to take up his father’s business and to become a teacher of Chinese children in the colonies. After Cheong Ming’s death in about 1896, young Jimmie, now aged 20 and known by the Chinese name of Ying Coon, decided to honour his father’s wishes. He continued to study, and attempted the gruelling imperial examinations in the provincial capital of Guangzhou three times – all unsuccessfully. After his third failure, he made the decision to return to his country of birth. He later said that he ‘always wanted to return to Australia.’

The National Archives holds two files which document the story of James Minahan’s return to Australia in January 1908 and the events which followed. In the time between his departure as a five-year-old boy and his return as a man of 31, the Australian colonies had federated and the attitude towards non-white immigrants, particularly Chinese, had hardened. The Immigration Restriction Act 1901 and its infamous dictation test set the tone with which Chinese arrivals to Australia were met – even those of long-term Australian residence, of Australian birth or those with part-white heritage. When he landed in Australia, James Minahan’s identity was questioned by Customs officials and he was made to sit the dictation test, which he failed, resulting in his arrest and prosecution as a prohibited immigrant.

Landmark court case

After a decision in his favour was granted in the Victorian lower courts, the Commonwealth appealed to the High Court. There, in a landmark decision, the High Court again ruled in Minahan’s favour. The case Potter v. Minahan continues to be cited in court judgements 100 years later.

The two files in the National Archives – one created by the Department of External Affairs (which administered the Immigration Restriction Act) and one created by the High Court – provide a fascinating background to the complex legal discussions found in the judgements of the five justices of the High Court. The case before the High Court centred around the idea of who exactly was an immigrant, and who could be considered a member of the Australian community. What did the framers of the Australian Constitution envisage when they gave the new Commonwealth powers over immigration? Did immigration simply mean the process of entering the country, or were there subtleties to its meaning and if so, what were they? Could a man, both a British subject by birth and the son of a British subject, be considered an immigrant (and, therefore a prohibited immigrant) when returning to Australia, the land of his birth?

To explore these issues within Minahan’s case, the courts heard evidence from James Minahan himself, as well as from a range of witnesses, many of whom were Chinese and who had known Cheong Ming, Winifred and their son in Victoria or had contact with father and son in China. Their testimony painted a picture of their lives, first in Indigo and then in Shek Quey Lee, detailing the ongoing connections maintained by many Chinese living in Australia, both with kin in Australia and at home in China. There was Deung Garng, a French polisher and kinsman working in Melbourne, whom father and son first met on their return to the village; and Ah Chew, a cabinetmaker from Carlton, who had been at the village school with Minahan and had attended Cheong Ming’s funeral. Dern Hoy, another Melbourne French polisher, had met father and son before they left for China in 1882 and had also seen Minahan in the village two years earlier and spoken with him at length about what life was like in Australia.

Then there were those whose testimony told of the family’s early life in Victoria, when Minahan was still a small boy. Cheong Ming’s business partner at Indigo, Chin Shing, told what he knew of the ‘English woman’ who lived with Cheong Ming and had his child. Chan Num, a Melbourne tobacco dealer, who employed Winifred Minahan’s younger sister as a nursemaid, said Winifred and her son had once stayed with him at Beechworth, Victoria. Ching Kay, formerly of Hang Yick & Co. in Melbourne, had done business with Cheong Ming and recalled the small boy who called Cheong Ming ‘papa’ and ‘Minnie’ Minahan ‘ma’.

James Minahan vanishes

Among all the detail in the court records and the departmental file on Minahan’s case, however, there is no clue to suggest what James Minahan did after the High Court ruled in his favour. After working all those years to gain an education, so that he could teach Chinese children in Australia, is that what he ended up doing? Or did he return to Indigo to work in the business he had inherited? Or did he decide, given the unhappy reception he had received in Australia, that he would return once again to build a life in China?

With the archives proving silent on Minahan’s fate, perhaps his hometowns of Indigo and Shek Quey Lee might provide some clues. A visit to Chiltern in northern Victoria revealed that the old mining settlements at Indigo no longer existed, but led eventually to contact with a descendent of Cheong Ming’s business partner, Chin Shing. She revealed that Chin Shing had continued to run the business at Indigo with his Anglo-Chinese wife into the early decades of the twentieth century. From what she knew, it seems that Minahan had not returned to make a life for himself there.

What then of the village Shek Quey Lee, described as being 20 li (Chinese miles) from the district capital of Jiangmen? Had Minahan returned to that home? A preliminary research trip to the area in the northern spring of 2009 provided some tantalising clues – a village now written as Shiquli, whose name in the local dialect is consistent with the earlier anglicised name Shek Quey Lee, and the revelation that the same village has had a long history of migration to Australia. What remains now is to continue following the leads in the archival trail, using details from Australian records about the village and its men, together with Chinese village records and the memories of local people, to establish the fate of James Minahan, the young man who had said he ‘always wanted to return to Australia’.