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Tuesday, 23 November 1965

Mr WENTWORTH (Mackellar) . - I find I have no substantial difference of opinion either with what the Prime Minister (Sir Robert Menzies) said in introducing this Bill or with what the Leader of the Opposition (Mr. Calwell) said in supporting it. I think that in this case, as the Leader of the Opposition said, there will scarcely be an Australian who will vote against the provisions of the Bill when it goes to a referendum. Nevertheless I am not entirely sharing his pessimism about the possibility of getting a little bit more included in the measure now before the House when it goes to that referendum. I agree with him that if the

Government sets its face against anything further being done, then it will not be practicable to put it forward at a referendum, because a referendum is unlikely to be carried unless it has the support of both Government and Opposition.

One would not wish to disturb the unanimity of that present support. But it still may be that the Government may see fit, itself, to go a little further so that something a little more than this could still be put before the Australian people with some prospect of success because it would be supported on both sides - supported both by the very great personal prestige of the Prime Minister and by the sincerity and eloquence of the Leader of the Opposition. In this case I think one must acknowledge both of these.

I do not think that in intention and, indeed, in substance, there is very much difference between the Opposition and the Government. This proposal that is before us is designed to remove an anachronism from the Constitution. Section 127 is, in point of fact, an anachronism. At the time it was inserted in the Constitution it might have been justified, perhaps, on the ground that the Aboriginals of those days - 65 years ago - were hard to enumerate because some of them were still living under tribal conditions. They could not be adequately counted in the census because no census could adequately count them. This state of affairs has now gone. There are very few Aboriginals still living under nomadic conditions. There is practically none for the purposes of practical census taking. So the physical difficulty of enumeration, which was a formidable difficulty 65 years ago, no longer exists. This section, as I have said, is an anachronism in the Constitution. It may well have been that in those early days there were feelings between the States, and when our own white population was smaller it may have been felt that the balance of Aboriginal population was big enough significantly to have affected the relative positions of the various States. In those days I would think that South Australia, which embraced what is now the Northern Territory, would have had the largest Aboriginal population. Western Australia and Queensland would have had a considerable Aboriginal population. So in those days it may well have been thought that to have counted in the Aboriginals might have imperilled the passing of the original foundation constitution and the referendum which established the Commonwealth of Australia. We can sympathise with these old difficulties but let us realise that they are gone.

But does the taking away of this section 127 go far enough? I do not think it does. The arguments advanced by the Prime Minister in relation to this in his second reading speech might be traversed again by the House. At the present moment, there is another anachronism in the Australian Constitution, namely section 51 placitum (xxvi.). Section 51 is the main empowering section in the Constitution. It sets out the fields in which the Commonwealth has not exclusive but concurrent powers with the States with, of course, the proviso that where the laws are in conflict the Commonwealth law prevails. Section 51 placitum (xxvi.) gives the Commonwealth power to make special laws for 'the people of any race other than the Aboriginal race. I put it to the House that this whole clause is an anachronism. It has never been used in any way at all. We have not made special racial laws in Australia for any race. It may have been thought originally - and I suppose this kind of thing goes back in the decade even before the Commonwealth was formally established - that a power would be needed to make laws for the Kanakas in Queensland or the Chinese on the gold fields, or something of that character. In those days racial distinctions, unhappily, were greater than they are today. So surely the idea of a racial distinction inside our Commonwealth of Australia is now an anachronism - another anachronism. We have never been called upon to operate any power under this section. It is never likely that we will be called upon to do so. Nor, indeed, is it right and proper that we should preserve this power.

Would it not be better - and the Prime Minister canvassed this in his second reading speech, as honorable members will recall - to excise the whole of section 51 placitum (xxvi.)? I do not think that this would meet the case because if we did that we would reach a position in which the States themselves would have this power to make special laws. Honorable members do not always remember that the powers which the

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Commonwealth does not have still reside in the hands of the sovereign States. So if we simply excised section 51 placitum (xxvi.) then the power to make discriminatory laws on a racial basis would remain in State hands and I do not think that this is something honorable members would want to happen. But more than that, if we simply excised this part of section 51 we would not gain any Commonwealth authority in regard to Aboriginal affairs other than in the Territories of the Commonwealth. The whole responsibility and burden of the Aboriginal situation would be thrown into the lap of the States. Therefore to take out the whole of section 51 placitum (xxvi.) would not meet the situation - not if we did this, and this only.

What about another suggestion? Suppose we took from placitum (xxvi) the words * other than the aboriginal race " so that the Commonwealth would have power to make special discriminatory laws in regard to all races including the Aboriginal race? Here I think that the Prime Minister's argument, advanced in his second reading speech, was unanswerable. To do this would not be to reduce the area of discrimination; it would be to enlarge it. I do not think that there is place for this racial discrimination inside Australia, whether it be in relation to the Aboriginal people or anybody else. Therefore it is not enough, I think, simply to take out these words because - and I put another argument - even if this were done the powers under section 51 are concurrent .and not exclusive powers, so that the States would still themselves maintain the power to make discriminatory laws. So far, I have been negative. I want to advance some positive suggestions in regard to this matter.

Sitting suspended from 5.55 to 8 p.m.

Mr WENTWORTH - Before the suspension of the sitting, I supported the Bill before the House, but suggested that it could be improved by going a little further. I made the point that the present position, even if this new provision were carried, would be unsatisfactory because it would still leave the Commonwealth with no specific powers in regard to the Aboriginal question, which, although not exclusively a Commonwealth question, must have vast implication for the Commonwealth. I said also that the Constitution would not then protect Aborigines against discrimination; indeed, the States would retain their present power of discrimination.

My second point was that it was unsatisfactory merely to take out from paragraph (xxvi.) the words "other than the Aboriginal race". If this were done, the State power of discrimination would still remain, because the powers in section 51 are concurrent and not exclusive. In addition, the principle of racial discrimination would not only be left in our Constitution, but, as the Prime Minister very rightly pointed out, it would be enlarged by bringing Aboriginals within the framework of that discrimination.

The third point I made was that it would be unsatisfactory just to take out the whole of paragraph (xxvi.), because that would leave the Commonwealth still without any specific powers in regard to Aboriginals and would still leave the State powers of discrimination completely unfettered. It is for that reason that I have brought forward a specific proposal.

My proposal is in two parts. The first part is to take out the whole of paragraph (xxvi.) from section 51 - racial discrimination inside Australia has no part, I think, in our national outlook - and replace it with a simple power over the advancement of the Aboriginal natives of the Commonwealth of Australia. The second part is that we add a new section to the Constitution, I think appropriately after section 117-

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