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Tuesday, 23 November 1965


Mr BEAZLEY (Fremantle) .- The Constitution Alteration (Repeal of Section 127) Bill which is now before the House seeks to delete from the Commonwealth Constitution section 127, which states -

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.

This provision was originally put into the Commonwealth bill of 1891 by Sir Samuel Griffith, one of the delegates from Queensland. The section provoked so little debate in the 1891 convention that we scarcely know Griffith's motives in putting in the section, but we do know that at that time in Queensland no attempt was made to count Aborigines, that in Western Australia only Aborigines in contact with civilisation were counted - this was a very few thousand compared with the numbers who then lived in the State - and that Aborigines were not counted in South Australia, which then included the Northern Territory. But estimates of the number were made. In New South Wales and in Victoria they were counted, and in Tasmania, of course, they were extinct.

We are conferring nothing tangible on Aborigines by deleting section 127. That does not alter the fact that the Opposition is strongly in favour of its deletion and will strongly support the Government when this matter is before the Australian people. I think that, psychologically, the section is very important. Nevertheless, we should recognise that, strictly speaking, this is not an amendment of the Constitution relating to Aborigines; it is an amendment of the Constitution relating to the census. At the time when this section was finally adopted by the Constitutional Convention of 1897 the number of Aborigines in Australia was estimated at 59,603. When Section 127 - then section 120 - was before the Constitutional Convention, Dr. Cockburn, one of the most prominent members of the South Australian delegation, questioned its Tightness. He feared it would debar Aborigines from the right to vote. He was assured that it did not affect the voting rights of Aborigines. I remind the House that Aboriginal men had the entitlement to vote in South Australia in 1859, that is 103 years before the Commonwealth enacted that right - save where it followed a State aboriginal franchise under section 41 of the Constitution - and 35 years before European women, and Aboriginal women of course, gained the right to vote in South Australia. In 1894, South Australia became the first Australian colony to grant voting rights to women. Dr. Cockburn's instinct to oppose the proposed section 120 - now 127 - was sound because the wording of the section has helped to spread the delusion in Australia that Aborigines are not British subjects. I was told this by a member of Legislative Council for the Northern Territory, not in evidence but in conversation when I was on the Select Committee on Aboriginal Voting Rights.

I should like to read to the House how briefly the Constitutional Convention of 1897 discussed this matter and the interesting observations that were made. Dr. Cockburn rose to question the clause, which was then clause 120, and the record reads as follows -

Dr. Cockburn:As a general principle, I think this is quite right. But in this colony-

He was speaking in Adelaide and was referring to South Australia - and I suppose in some of the other colonies, there are a number of natives who are on the rolls and they ought not to be debarred from voting.

Mr. Deakin:This only determines the number of your representatives and the aboriginal population is too small to affect that in the least degree.

Mr. Barton:It is only for the purpose of determining the quota.

Dr. Cockburn:Is that perfectly clear? Even then, as a matter of principle, they ought not to be deducted.

Mr. O'Connor:The amendment you have carried already preserves their votes.

Dr. Cockburn:I think these natives ought to be preserved as component parts in reckoning up the people. I can point out one place where 100 or 200 of these Aboriginals vote.

Mr. Deakin:Well, it will take 26,000 to affect one vote.

I think Deakin meant one seat -

Mr. Walker:I would point out to Dr. Cockburn that one point in connection with this matter is, that when we come to divide the expenses of the Federal Government per capita, if he leaves out these Aboriginals South Australia will have so much the less to pay, whilst if they are counted South Australia will have so much the more to pay.

I can see one South Australian member laughing. Evidently he feels that the reference acknowledges that the right way to appeal to South Australians is through the hip pocket nerve. Anyway, there was no further querying of this section from South Australians or anybody else.

I think the section has been tragic in its effects. The allusion to an amendment that Dr. Cockburn had already carried, was a reference to section 41 of the Constitution which says -

No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.

That section 41 which conferred upon Aborigines the Commonwealth franchise in all those States where they had the State franchise - that is, Victoria, New South Wales and South Australia - was somehow or other interpreted to mean that the Commonwealth had to follow the States. And we did follow the States until 1962. We gave Aborigines a vote in States that had already conferred the State voting right and denied them a vote in States that had not conferred the State voting right.

There seems to have been a fatal trend. Every reference to Aborigines in the Australian Constitution has been interpreted in some way to deprive them of some right all through the years. I encountered the damage that section 127 has done to Australia's standing when in India in 1954. I travelled through India and I think I met the leader of nearly every important trade union in that country. There had been a visit of some Australian Communist women just previously and they had informed the Indians that in Australia Aborigines were constitutionally declared not to be people. This is not the meaning of the wording, but it can definitely be construed in that way. The section simply states that in reckoning the numbers of people of the Commonwealth or of a State, or of any other part of the Commonwealth, aboriginal natives shall not be counted. The deletion of the section will, therefore, make for a valid census. It has never been a valid census without the Aborigines. Secondly, it will remove a seeming insult. Thirdly, it may lead, psychologically though not legally, to an improved status of Aborigines.

The honorable member for Mackellar (Mr. Wentworth) referred to certain of the statements of the Prime Minister in which the Prime Minister explained why he had not extended the referendum proposals to include other sections of the Commonwealth Constitution which relate to Aborigines. I do not intend to labour this, but I do want to answer the Prime Minister. The section which has been under discussion reads as follows -

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: - (xxvi.) The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.

This also originated with Sir Samuel Griffith of Queensland. It originally read in these words -

The Parliament shall, also, subject to the provisions of this Constitution, have exclusive legislative power to make all such laws as it thinks necessary for the peace, order, and good government of the Commonwealth with respect to the following matters: -

1.   The affairs of people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so this power shall not extend to authorise legislation with respect to the aboriginal native race in Australia and the Maori race in New Zealand;

There is no doubt that when, at the 1891 Constitutional Convention, it seemed that New Zealand might join the Federation, one of the motives of Sir George Grey, a representative of New Zealand, was to keep Maori affairs in the hands of the New Zealand Government. Then, when New Zealand withdrew, the conception of depriving the Commonwealth of power over indigenous people remained. Thus there exists the proviso that the Commonwealth can make laws regarding races but not laws regarding people of the Aboriginal race.

The honorable member for Mackellar has spoken of the actions of the Government with respect to Aborigines. I think every advance in Aboriginal welfare in this Parliament has been bipartisan, and I hope it stays that way. For instance, the proposal to confer voting rights where the States did not was enacted by the Government, but this had been advocated for some time by the Opposition. The extension of social service benefits to Aborigines had been begun by the previous Labour Government and was continued by this Government, and extended after advocacy by the Opposition. I remind honorable members that the former

Minister for Social Services, Mr. Roberton, who is now Ambassador in Ireland, used to say that he was up against the difficulty of this section of the Constitution. There is no doubt that it was misinterpreted to produce adverse discrimination against Aborigines for many years. This is just another of the sections of the Constitution where a reference to the word "Aborigines" has had an unfortunate effect on the fate of the Aboriginal people. We agree with the honorable member for Mackellar that the Constitution would be improved by his suggestion that there be conferred upon the Commonwealth a positive power to make laws for the benefit of Aborigines.

The other thing to which I want to refer very briefly was also discussed at the Constitutional Convention. It is what the honorable member for Mackellar has to propose about section 117. Section 117, in so far as it confers a right, seems to me to be like the peace of God - it passeth all understanding. The section reads -

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

There is no doubt that Aborigines are subjects of the Queen. This was one of the points that the Select Committee on Voting Rights of Aborigines stressed. The status of " Subject of the Queen " does not confer intrinsic rights. Since our conception of nationality is, at root, feudal, any person born in the Queen's dominions is born with an obligation to allegiance. Aborigines, as subjects of the Queen, have an obligation to an allegiance. Whatever rights he has thereafter are conferred by the deliberate enactment of law. He is not in the position of an American citizen who is guaranteed certain rights under the American Constitution. The whole debate on citizenship in the Constitutional Conventions raged around this section. The House of Assembly of Tasmania wanted a section based on the XIVth Amendment of the United States Constitution, and had the House of Assembly of Tasmania succeeded it would have achieved what the honorable member for Mackellar is now endeavouring to achieve by one of his proposals. The XlVth

Amendment of the American Constitution reads -

All persons born or naturalized in the United States-

The Tasmanian Assembly would have substituted " Australia " for " United States "- and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I quite sympathise with the Prime Minister (Sir Robert Menzies) in his desire not to collide with any State Government. I realise also that he wants to reduce the referendum proposal to the simplest, clearest, most unanswerable and defensible terms. I do not underestimate the psychological importance of deleting from the Constitution a section which appears to declare that Aborigines are not people, but at the same time I think it is regrettable that it is quite possible for the States to continue what are marked discriminations against Aborigines, and that we as a national Parliament, supporting a national Government - which is answerable internationally on race issues - are so powerless to legislate to make a meaningful Australian citizenship not only have force in the Commonwealth in regard to voting rights but also where a State has not enacted voting rights for people who are fully of the Aboriginal race.

With these observations I congratulate the Government for providing for a referendum proposing to delete section 127. The Labour Party believes that this referendum proposal should be carried by the people. I hope it will be carried by an overwhelming majority. I believe that the Bill will be carried unanimously by the House of Representatives and that this part of the referendum proposals will also be carried unanimously by the Senate. I understand from the Attorney-General (Mr. Snedden) that a unanimous vote will leave no opportunity to prepare a " No " case from the Parliament. That is not to be regretted. There is no case for not counting Aborigines as Australian people.







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