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Tuesday, 23 November 1965


Dr J F Cairns (YARRA, VICTORIA) . - I should like to support the remarks of the honorable member for Mackellar (Mr. Wentworth), the honorable member for Wills (Mr. Bryant) and the honorable member for Fremantle (Mr. Beazley) and to say a few words on an aspect of the Bill that puzzles me somewhat. First of all, of course, there is the question of relevance. You, Sir, have made a ruling on this matter. 1 notice that in his speech the Prime Minister (Sir Robert Menzies) used about 270 words to tell us why he was introducing a Bill to provide for a referendum to repeal section 127 of the Constitution, and used about 900 words to tell us why he was not going to provide for a referendum for the repeal of section 51 (xxvi). It seems to me to indicate that on the bases laid by the Prime Minister, a discussion on why the right honorable gentleman was not prepared to put a question on the repeal of section 51 (xxvi) has some considerable relevance to the debate. I should like to follow the Prime Minister for a moment or two in his examination of this section, because what he had to say puzzles me very considerably. He said -

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 1 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.

It seems to me that we have already passed laws to do precisely what the Prime Minister says we cannot do in respect of this. The honorable member for Wills referred to section 137a of the Social Services Act of 1 947-64 which provides -

An Aboriginal native of Australia who follows a mode of life that is in the opinion of the DirectorGeneral nomadic or primitive is not entitled to a pension, allowance, endowment or benefit under this Act.

We have made laws discriminating against Aborigines and section 51 (xxvi) has not prevented us from doing so. It is one argument to say that these laws are necessary - that section 137a is necessary in the opinion of the Government because it would be wrong to try to pay a pension to nomadic natives. That is one argument that may be admitted and accepted, but the truth of the matter is that we have made laws discriminating against Aboriginal people and that section 51 (xxvi) has not prevented us from doing so. In other words, it seems to me that the proposition is just the opposite to that put by the Prime Minister in the long statement from his speech which I have just quoted.

This, of course, raises the question: Is section 137a of the Social Services Act valid if, as is the opinion of the Prime Minister, section 51 (xxvi) prevents us making such laws? If we have made such laws, are they valid laws? As the honorable member for Fremantle pointed out, the laws that have been made by the Commonwealth - and the honorable member for Wills cited a number of them - have always discriminated against the Aborigines. I do not know of one that has provided something for Aboriginal people that has not been provided for other people. What we are asking is that the Government consider providing for the removal of something that has discriminated against the Aboriginal people. This seems to be a fairly simple thing to do. 1 agree that when we in this country are designing a referendum proposal we have to design it as simply as possible but I do not agree with the proposition put by the Prime Minister in respect of this additional question. I do not agree with the Prime Minister's other argument that it is unnecessary to put the question. I agree that what should be the aim of the Government is the integration of the Aborigines in the community generally. There should not be a state of affairs where the Aborigines are treated as being of a race apart. I think it is rather stretching the argument to say that it would be wrong for the Commonwealth to make particular laws in favour of the Aboriginal people, to assist them to become integrated. I think it would be wrong to say that such a favourable law would be a law that treated them as being a race apart.

I think we can justify discrimination in favour of people and I do not think we should get that argument confused with an argument that we should be against discrimination against people. Therefore I think that the argument on which this proposition is based by the Prime Minister is not sound. In his speech the Prime Minister said -

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.

Of course we do. The Prime Minister continued -

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 and so forth. Is this desirable?

Contrary to the conclusion drawn by the Prime Minister, I think it is desirable. I do not think we need worry about creating for the Commonwealth power to do something for the Aboriginal people. Surely this is not a legitimate concern or something that we should be unwilling to do. Certainly our overall objective is to treat the Aborigines as on the same footing as the rest of us, with similar duties and similar rights. But surely this is not an argument against providing for the Commonwealth a simple power to be able to do something for the Aborigines. I do not suggest that, technically, this is necessary. I think there are other ways of going about it. The Commonwealth could, for example, make grants to the States. Anyway, we should do something directly for the Aboriginal peoples. I do not think anybody would object to that. There are other ways of doing things for the Aborigines. I would not object to their being adopted. The proposal to remove discrimination by repealing placitum (xxvi) is justifiable. The Prime Minister said -

The second proposal was to repeal placitum (xxvi) altogether. Quite frankly, this has its attractions. The power has never been exercised.

I have suggested that it has been exercised by the Commonwealth. The Prime Minister continued -

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 -

I do not think Nauruans are aboriginal people of a State in any sense of the word, but 1 concede that we may wish to pass laws with regard to them. The Prime Minister continued -

The third proposal that has been made ... 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.

In my view, the proposal submitted by the honorable member for Mackellar in a suggested amendment is the most desirable course to adopt. I cannot see the validity of the Prime Minister's reasoning with respect to placitum (xxvi), nor can I see that it is necessary to have a specific provision to make laws in respect of Aboriginal people, because we can achieve our purpose by grants to the States or directly.

Question resolved in the affirmative.

Bill read a second time.







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