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Friday, 15 June 1984
Page: 3200


Senator CRICHTON-BROWNE(8.55) —I link my remarks on clause 6 with the provisions of clause 7. I want to record my objection to the fact that, as the clause states:

This Act binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island.

We have been told often that this legislation is a result of the imprimatur given by the referendum in 1967. As I said in my speech on the second reading, the wording of the Yes case stated that it was not intended that the States be disenfranchised in terms of their capacity and competence to legislate in respect of Aboriginal people; there would be goodwill, co-operation and mutual and compatible legislation between the Commonwealth and the States on this matter. We now find that we have unilaterally cast like a shadow on the federal system Commonwealth legislation described as emergency interim legislation. I do not have the slightest idea what emergency has occurred or arisen in the last weeks. The reason this legislation is being described as interim legislation is that it will be incorporated into more draconian legislation later on. The spirit of this legislation is quite at variance with the spirit of those people who voted yes in 1967 to give the Federal Parliament jurisdiction in respect of the making of laws for the Aboriginal community. In the event that a referendum were put in the same form again it would be defeated by the same percentage by which it was carried last time.

I see no reason why the Australian Labor Party cannot, in co-operation, collaboration and perhaps even collusion with the Labor States at least, introduce legislation in the Commonwealth and State spheres that is complementary. There is such legislation in Western Australia; I am not familiar with the legislation in the other States. Inasmuch as the platforms of the State and Federal parties are almost identical I do not see any reason why there cannot be complementary legislation. As a senator representing Western Australia and as a member of a chamber that purports to represent States I find it totally objectionable that this legislation, as I have said, has been introduced unilaterally, without consultation in any shape or form, and crushes and overrides the responsibilities of the States. It ought to be recorded again what was said by the Western Australian Labor Government. A newspaper report states:

Proposed . . . legislation to protect Aboriginal sacred sites had taken the State Government by surprise, the State Minister responsible for Aborigines, Mr Wilson, said yesterday.

As in many relationships, having been taken by surprise, he was happy to lie down and be raped. The Commonwealth Government has the goodwill and the blessing of the Western Australian Labor Government to proceed with this legislation to take from that Government what would normally be its responsibility. I can see no reason and no justification for Commonwealth legislation which seeks to go past introducing legislation into the Northern Territory. The Minister for Aboriginal Affairs, Mr Holding, said that he saw the 1967 referendum as providing the Federal Government with the exclusive responsibility for all matters in respect of Aboriginals.


Senator Grimes —He didn't say that.


Senator CRICHTON-BROWNE —Does the Minister want to know exactly what he said? He said:

The prime constitutional responsibility-

prime being first-


Senator Grimes —You said exclusive.


Senator CRICHTON-BROWNE —In most races I have been in if one is first one damned well is exclusive.


Senator Macklin —That is illogical. It can never be exclusive.


Senator CRICHTON-BROWNE —I am being logical.


Senator Zakharov —Prime does not mean exclusive.


Senator CRICHTON-BROWNE —In the terms it was put it does because the Minister has said that in the event that any State government introduces legislation which is not to the satisfaction of the Commonwealth Government he will introduce legislation which will override that legislation. If that does not make it 'exclusive', what does? The Commonwealth Government has taken unto itself for all time the exclusive rights to legislate for the Aboriginal community.


Senator Macklin —What does clause 5 say?


Senator CRICHTON-BROWNE —We are talking about clauses 6 and 7.


Senator Grimes —We are talking about 6 actually.


The TEMPORARY CHAIRMAN (Senator Coleman) —We are talking about clause 6. You have strayed to clause 7. I suggest at this time that it might be wise for me to entertain a motion that we take clauses 6, 7 and 8 together and that might satisfy the debate. Senator Crichton-Browne, you will need to seek leave that clauses 6, 7 and 8 be taken together.


Senator CRICHTON-BROWNE —I seek leave to take clauses 6, 7 and 8 together.

Leave granted.


Senator CRICHTON-BROWNE —Madam Temporary Chairman, I would much rather argue with Senator Grimes. He sits there and takes no notice, but he does not interrupt me.


The TEMPORARY CHAIRMAN —Yes, but I am in the chair.


Senator CRICHTON-BROWNE —Senator Macklin takes no notice of me and continues to interrupt anyway.


Senator Macklin —I am directing you to 7 (1).


Senator CRICHTON-BROWNE —I thank the honourable senator for his riveting assistance. Clause 7 (1) states:

This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.


Senator Macklin —That is right.


Senator CRICHTON-BROWNE —That is right. In other words if one happens by the grace of God to have legislation which is compatible it will not be exclusive.


Senator Boswell —Or worse.


Senator CRICHTON-BROWNE —No, it is not saying that.


Senator Macklin —Compatibility; concurrence is not compatibility.


Senator CRICHTON-BROWNE —That is right. It is capable of operating concurrently. In other words, if there is legislation of like nature in a State there is no difficulty, but if the State does not have legislation similar to this, of course, this legislation will operate. That is the point I am making.


Senator Grimes —Oh, what a shocking thing!


Senator CRICHTON-BROWNE —Yes, it is a shocking thing. I thank Senator Grimes for saying it is a shocking thing. It is a shocking thing because we have a centralised government in Canberra which has decided to take unto itself all the traditional responsibilities which have been resting in and have been vested in the hands of the States in the past.


Senator Grimes —What was the 1967 referendum all about?


Senator CRICHTON-BROWNE —The 1967 referendum was all about providing the Commonwealth with a capacity to implement laws for the welfare of the Aboriginal community. The Yes case made it quite clear-


Senator Macklin —This is what the Act says.


Senator CRICHTON-BROWNE —Senator Macklin should take his time and have his say. The 1967 referendum was intended to provide a capacity for the States and the Commonwealth to act together. The people who voted in the 1967 referendum never intended to hand over to the Commonwealth of Australia exclusive responsibility in these matters. In fact the Commonwealth Government itself did not know that it had that responsibility until some recent decisions of the High Court of Australia, not the least of which related to the dams case. Since then we have had this unbridled, unfettered, headlong rush by the Minister for Aboriginal Affairs, Mr Holding, to take unto himself, as I have said, all responsibility for the Aboriginal community. That was not the intention of the referendum. Anybody who uses the referendum as an excuse for this legislation is not being honest with himself, is not being honest with the community and is not being honest with this chamber. I take grave exception to this legislation taking the responsibility away from the States as it very clearly does, and quite improperly so.