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Thursday, 11 November 1965


Sir ROBERT MENZIES (KooyongPrime Minister) . - I move -

That the Bill be now read a second time. The purpose of this Bill is to alter the Constitution by repealing section 127. That section provides that in reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, Aboriginal natives shall not be counted. The Government believes that the first opportunity should be taken to have it repealed and proposes to submit the Bill to referendum at the same time as the referendum on altering the method of determining the number of members of the House of Representatives. The Joint Committee on Constitutional Review recommended repeal in its report - that is the 1959 report - at paragraph 398.

No doubt the principal reason for the inclusion of section 127 in the Constitution in 1900 was the practical difficulties that would be encountered in satisfactorily enumerating the Aboriginal population. There were no doubt real difficulties then in ensuring that a census of Aborigines could be effectively taken. In modern times, this is not so. Moreover, section 127 is not related to the qualification of Aborigines as voters in Commonwealth elections. Section 41 of the Constitution has always guaranteed an Aboriginal the right to vote at Commonwealth elections if be had a right to vote at elections for the more numerous House of the Parliament of a State. The Commonwealth Parliament itself has removed all disabilities in respect of voting at Commonwealth elections so far as Aborigines are concerned. Consequently, Aborigines are now entitled to enrol and to vote and they should, in the view of the Government, be recognised as forming part of the population of their State for any purpose.

I think I should at this point make reference to the Government's decision not to put forward any amendment of section 51 (xxvi.). I mention this because the Deputy Leader of the Opposition (Mr. Whitlam) had a question on the notice paper about it and I am now, in effect, answering that question. Section 51 (xxvi.) provides that the Parliament may make laws for the peace, order and good government of the Commonwealth with respect to " the people of any race, other than the Aboriginal race in any State, for whom it is deemed necessary to make special laws ".

Some people wish - and indeed the wish has been made clear in a number of petitions presented to this House - to associate with the repeal of section 127 the removal of what has been called, curiously to my mind, the " discriminatory provisions " of section 51 (xxvi.). They want - and I understand their view - to eliminate the words "other than the Aboriginal race in any State", on the ground that these words amount to discrimination against Aborigines. In truth, the contrary is the fact. The words are a protection against discrimination by the Commonwealth Parliament in respect of Aborigines. The power granted is one which enables the Parliament to make special laws, that is, discriminatory laws in relation to other races - special laws that would relate to them and not to other people. The people of the Aboriginal race are specifically excluded from this power. There can be in relation to them no valid laws which would treat them as people outside the normal scope of the law, as people who do not enjoy benefits and sustain burdens in common with other citizens of Australia.

What should be aimed at, in the view of the Government, is the integration of the Aboriginal in the general community, not a state of affairs in which he would be treated as being of a race apart. The mere use of the words " Aboriginal race " is not discriminatory. On the contrary, the use of the words indentifies the people protected from discrimination when it is remembered that section 51 (xxvi) was drafted to meet the conditions that existed at the end of the last century - for example, the possibility of having to make a special law dealing with kanaka labourers. The power has, in fact, never been exercised. If the words were removed, as some people suggest - and there is quite an attractive argument in- favour of that - it would change dramatically the scope of the plenary power conferred on the Commonwealth. That must be borne in mind. If the Parliament had, as one of its heads of power, the power to make special laws with respect to the Aboriginal race, that power would very likely extend to enable the Parliament to set up, for example, a separate body of industrial, social, criminal and other laws relating exclusively to Aborigines. It is difficult to see any limitations on the power to do any of these things, because the existing power is a plenary power in the Constitution. Conferring such a new power could have most undesirable results.

The Joint Committee was quite clear in its recommendation that section 127 should be repealed. In relation to the question that I have just been discussing, namely, conferring a power on the Commonwealth to make laws with respect to Aborigines, the Committee, at the time, it ceased its deliberations in 1958 - and I mention this as an historic fact - had, paragraph 397 of the report states, given some consideration to the very important question as to whether the Commonwealth Parliament should have an express power to make laws with respect to Aborigines, and representations from various quarters advocated the adoption of a recommendation to this effect. The Committee had, however, not completed its inquiries on all the issues involved and consequently no recommendation has been made. I have quoted this because I do not want to have it said against anyone on the Committee that he has committed himself. This is not true: This was left open. What I have said will show that the removal of the exclusion of the Aboriginal race from the scope of section 51 (xxvi), that is, to include them within the power, is not the simple matter it is often represented to be. The inclusion would, in the view of the Government, not be in the best interests of the Aboriginal people.

Returning to the Bill before the House, the matter can be simply put by saying that section 127 is completely out of harmony with our national attitudes and with the elevation of the Aborigines into the ranks of citizenship which we all wish to see. To sum up, three possibilities have been examined: First, to omit from section 51 (xxvi.), the words " other than the Aboriginal race in any State". This would give the Commonwealth Parliament power, a plenary power, to make laws, unlimited except by such general provisions as those of section 92, with respect to Aborigines - for example, industrial laws, social services laws, health laws and so forth. Is this desirable? I have endeavoured to point out that we do not think it is. Should not our overall objective be to treat the Aboriginal as on the same footing as all the rest, with similar duties and similar rights? Section 51 (xxvi.) does not create discrimination in the case of the Aboriginal. It avoids it. The second proposal was to repeal placitum (xxvi.) altogether. Quite frankly, this has its attractions. The power has never been exercised. Yet, in the modern and complex world which changes around us almost every week we might conceivably wish to employ it. For example, we have great obligations in the case of Nauru. We might, some day, under some circumstances, wish to pass a special law with regard to Nauruans - the people of the Nauruan race - in order to. help them to be re-established somewhere outside their existing island. We might. Therefore, it would be unwise, perhaps, to deprive ourselves of the machinery for dealing with a problem of that kind should that problem arise. The third proposal that has been made - and I say this with great deference to some of my friends and supporters who have mentioned it - is to add a new provision rendering invalid laws regarding Aborigines by, for example, invalidating any Commonwealth or State discrimination on the grounds of race.

Well Sir, all I can say, with lively memories of what happened in the United States of America over their amendments - over what they called the "Bill of Rights", the crop of litigation, and the reduction to terms of somewhat wide and rhetorical expressions - is that any provision of that kind would produce a crop of litigation. It would involve arguments of definition. It could readily invalidate laws which, while designed to protect the special interests of Aborigines, could be held technically to discriminate either for or against them. Sir, I repeat that the best protection for Aborigines is to treat them, for all purposes, as Australian citizens.

Debate (on motion by Mr. Calwell) adjourned.







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