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Thursday, 10 March 1966

Mr WENTWORTH (Mackellar) . - I move -

That the Bill be now read a second time.

This is a bill designed to put a third question to the people at the foreshadowed referendum. A short time ago there was some degree of urgency about this Bill because the referendum was to take place on 28th May 1966. Now that the referendum has been postponed there is not the same degree of urgency, particularly since our Constitution provides that a Bill for its alteration evaporates, in effect, unless it is put to a referendum within six months of being passed through this House. In those circumstances it would be inadvisable for this House to finalise the Bill before the date of the referendum is known. The consideration of this Bill is urgent but its finalisation is urgent no longer.

In common with other members of this House I welcomed the Government's decision to put to a referendum a proposal to repeal section 127 of the Constitution which provides that Aborigines shall not be counted for certain purposes. This is good, but does it go far enough? I believe that it does not go far enough, and I have two motives in bringing before the Parliament this expanding Bill which provides that there shall be more responsibility on the Commonwealth to help the States to deal with Aborigines and to prevent racial discrimination in Australia.

Let me refer first to the Aborigines themselves. I think that everyone who has had contact with Aborigines, as I have, has a personal liking for them and a feeling that we have a responsibility to them. They are nice, good people. Most of us would also have some sense of failure in relation to the way in which we have dealt with our Aborigines in the past. This is a failure which perhaps is not peculiar to the Australian people. Other people, not only white people, have sensed it elsewhere outside Australia. However, there is an inherent difficulty in dealing with this problem. It is not just a matter of saying: " We will regard the Aborigines as merely poor white people". They are not. They are special people and they do need and deserve some special help. We have a special responsibility in this sphere. Hence, in a sense, some discrimination is still necessary but it must be discrimination in their favour, not discrimination against them.

The Commonwealth so far, except in the Northern Territory, has had no direct responsibility in this sphere but there is a feeling that it should assume some greater degree or direct responsibility. That feeling stems from several sources. First, the Aborigines themselves want this to happen. If we were dealing with the rights of trade unionists or companies or pastoralists or any other group in the community we would consult with that group. The Aborigines are such a group and should be the first people to whom we would turn before deciding anything relating to their future. What do they want? What are their feelings in this regard? As a result of inquiry and a very considerable degree of contact with Aborigines, I know - I think the House would agree with me on this - that they want the Commonwealth to assume a greater degree of responsibility towards them, their rights, their opportunities and their advancement.

That is the first reason for desiring some Commonwealth responsibility. I think it is a compelling reason and one to which we have not as yet given sufficient weight. We must not regard the Aborigines as having no rights. We must not regard them as merely a group in the community with no feelings, or as being not even proper people. This is the wrong way in which to regard them. We must look first and foremost to what the Aborigines want, and they want the Commonwealth to accept a greater degree of reponsibility towards them.

The second reason why I believe the Commonwealth must assume responsibility is that considerable funds will be nc:dec and these are most readily available from Commonwealth sources. From time to time in the past the States have said: "We would like to do more for our Aborigines but we do not have the funds. There are competing claims for State funds. The Commonwealth has all the cash ". In those circumstances and because this is a pressing human problem, the Commonwealth should go to the aid of the States. Indeed, apart from those reasons, it should go to the aid of the States also because the burden of assisting the Aborigines is not shared equally among the States in proportion to their total population. Western Australia and Queensland, for example, have a more than proportionate need for assistance. It is unfair that the taxpayers of Western Australia and Queensland should be asked to bear a disproportionate share of what is really a national responsibility. It is a national task; it is a national problem with international implications. For that reason also the Commonwealth should be playing a direct part.

The Aborigines, very rightly, require equal protection throughout the Commonwealth from adverse discriminatory laws. All of such laws should go. The present position is that an Aboriginal in Queensland has quite different rights before the law from those of an Aboriginal in New South Wales. At the moment I am not suggesting which is correct and which is incorrect. I am saying that it is bad that there should be a lack of uniformity and that the Aborigines throughout Australia need equal protection against adverse discrimination.

For all of these and similar reasons, the Aboriginal problem will be handled better with some Commonwealth help. This does not mean the end of the State welfare administrations. Rather does it mean their extension as more funds become available to them properly from Commonwealth sources. In the administration of Aboriginal welfare there is a great deal to be said for the principle of decentralisation. The problems at Wyndham are not the same as those in Redfern. There are differences. Whilst all Aborigines are entitled to equal protection against adverse discrimination, the special welfare measures that are needed for them may well be different in different parts of Australia.

So I hope that the administration of Aboriginal welfare will continue to be decentralised among the States. Indeed,

I believe that at this moment we should be paying some tribute to the new spirit that has come over many of the State administrations in the last few years. They are doing much better with the indadequate resources at their command. They may not be doing as much as we or they would like; but let us acknowledge - I think the Aboriginal people themselves recognise this - that a new and better spirit, which we all should gratefully acknowledge, is abroad in the State administrations. So much for the first motive for bringing in this expanded bill, namely, to help our Aboriginal people.

The second motive is the elimination of racial discrimination inside our Australian Commonwealth. This also affects the Aboriginal people because the Aboriginal problem is best treated within the proper framework of avoidance of racial discrimination in Australia. It is by far the most important part of the Australian picture; but I believe that it is a part which is best treated in relation to the proper framework of the elimination of racial discrimination. That is one part of the motive. The other part is that in the Australian Constitution there are anachronisms dating back to the old Chinese and Kanaka problems of 70 years ago, which no longer exist. It should be a matter of pride for us to remove these anachronisms from the Constitution. It is certainly a matter of avoiding danger because they are subject to misinterpretation overseas and in certain circumstances could imperil Australia's total security considerably. That is the other leg of the problem. First and foremost, the motive is to help our Aboriginal people. Secondly, it is to put this matter in its proper framework by avoiding the expression of the principle of racial discrimination in our Australian Constitution.

Let me pass now from the motive to the drafting of the Bill before the House. As honorable members will see, there are two operative clauses. The first provides for the repeal of the present sub-section (xxvi) of section 51 of the Constitution, which in its present form gives the Commonwealth power to make laws 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", and its replacement by a simple provision that the Commonwealth shall have power to make laws for " the advancement of the Aboriginal natives of the Commonwealth of Australia ". The second operative clause provides for the addition of a new section 117a after the existing section 117. The proposed new section reads -

Neither the Commonwealth nor any State shall make or maintain any law which subjects any person who has been born or naturalised within the Commonwealth of Australia to any discrimination or disability within the Commonwealth by reason of his racial origin.

There are the two proposals. Let me refer, first, to sub-section (xxvi) of section 51. There are two possible ways of dealing with it: First, the way that I have described and, secondly, the way of simply omitting the words " other than the Aboriginal race in any State" so that the Commonwealth would have power to pass discriminatory laws in regard to people of any racial origin, including Aborigines.

The mere omission of the words seems to me to be unsatisfactory for several reasons. First, the sub-section does not say whether the discrimination should be adverse or favourable. If one looks at it one sees some implication, at any rate, that the discrimination would be unfavorable. We do need the power for favorable discrimination; we should not have the power for unfavorable discrimination. For that reason, I believe that it would be unsatisfactory just to omit the words.

Another reason is that the omission of the words would not confer full protection against State discrimination. It would give the Commonwealth power to legislate and, as honorable members will know, under section 109 of the Constitution Commonwealth legislation overrides State legislation. But, if honorable members will turn their attention to the judgment delivered by the High Court of Australia in the case of the City of Melbourne v. the Commonwealth of Australia in 1947, they will see that the operation of section 109 may not be quite as untrammelled as some people are inclined to suppose, lt may be that the High Court, applying the principles that it laid down in that case, would find, for example, that a Commonwealth law providing that Aborigines shall be eligible for a State franchise was a law relating not to Aborigines but to the organisation of State government and, as such, beyond Commonwealth power. So, in spite of section 109, these protections would not be absolute simply because of the removal of those few words.

Thirdly, honorable members will know that there are practical and proper impediments to getting through this House legislation aimed at any specific provision of a law of a State government. Fourthly, we do not want to retain in our Constitution the power to make laws providing for adverse racial discrimination. That power would remain if we just removed those few words. Hence, I think, this sub-section, which has never yet been used, should come out and be replaced by the positive sub-section I have suggested, giving the Commonwealth responsibility for the advancement of our Aborigines.

When I speak of this, I must speak of some things which have been said previously in this House about our need to retain what are described as the plenary powers in this sub-section (xxvi). The Nauruan question, for example, was raised in relation to it. I think there was an error of law here, because the Nauruans are not a race; hence the powers of sub-section (xxvi) could not be used in regard to them. But there are plenty of alternative powers that we could use in regard to such a problem. Sub-section (xxvi) is not operative but there are other sub-sections which would be operative: sub-section (xix) - naturalisation and aliens; sub-sections (xxvii) - immigration and emigration; sub-section (xxix) - external affairs, with the treaty making powers; subsection (xxx) - relations with the islands of the Pacific. These powers exist and their operation has been determined by a series of High Court decisions. They are sufficient to cover any conceivable situation. The plenary racial powers in sub-section (xxvi) are not needed and, indeed, they are an impediment to the good name of Australia overseas.

I have permission from the former Prime Minister, Sir Robert Menzies, to quote from a letter which he wrote to me last week in regard to this when I raised this question with him. He traversed some of the ground that I traversed and I now quote an exact sentence from the letter -

I would shed no tears over the complete repeal of sub-section (xxvi). It is, I think, quite unlikely to be operated by the Commonwealth, having regard to modern circumstances.

I think this might be sufficient to dispose of that particular item.

I come to the second question, the new section 117a. I think it is advisable to write a prohibition against racial discrimination into our Constitution in something like these words, because unless we did so there would be inadequate protection for Aborigines in both the Commonwealth and the State spheres. Our international relations would be improved by the inclusion of this section, which is in accordance with resolutions of the United Nations. It would also give expression to the ideal of homogeneity in our population which was expressed by the Prime Minister (Mr. Harold Holt) only a couple of nights ago in this House.

The suggestion that I have made does not go too far and this does not raise controversial issues which might imperil the success of the referendum. It applies only to Australian electors including, of course, Aborigines, and their children and it applies only inside Australia. It leaves unimpaired other Commonwealth powers, for example, those over aliens, immigration and external affairs. It is not a prohibition which could be used to impede proper Commonwealth action. Objections have been raised that a section on rights of this character, a prohibitory section, is foreign to the spirit of our Constitution. This does not impress me overmuch, particularly when reading sections 116 and 117 which are in the Constitution already and which themselves have the same prohibitory form.

It is said by some people that the section as I have drafted it is not sufficiently watertight. If this be so, I shall be glad of any improvements in the drafting. This is always open in the Committee stage. I do not want to be dogmatic about the actual wording of the draft and I hope that if any improvements can be suggested they will be brought forth. Indeed, Profesor Cowen, the Professor of Law in Melbourne, has suggested to me one significant improvement - just one or two words to provide for the case of immigrants from the United Kingdom who are neither born in Australia nor naturalised in Australia but are " registered " as citizens in Australia. I think this provision might well be put in. But these are not serious matters and I am not proposing to take up the time of the House by traversing them overmuch now.

There has been great support for this Bill. First and most important, there has been support from the Aboriginal organisations themselves. This I regard as vital and, indeed, decisive. There has been support from church bodies. Three or four weeks ago the Council of Churches, meeting in Melbourne, decided to support these proposals and to ask ministers throughout Australia to work for them. I gratefully acknowledge also editorials in the " Catholic Weekly" of Sydney and the "Catholic Advocate " of Melbourne, giving full support to these proposals. I thank the 250 university people who have signed in support of the proposals. I include among those two vicechancellors, a dean of law and various other people, whose very weighty support will help.

Spokesmen for the Australian Labour Party in this House have given some support to these principles and the Democratic Labour Party has also indicated support. As regards the Liberal Party I gratefully acknowledge the support of the Women's Group in New South Wales. The Liberal Youth Council in New South Wales has seen fit to give support, as well as numerous branches and conferences.

Apex and Rotary clubs, while not formally committed as bodies to support, have helped very materially. I thank those very, very numerous helpers who have distributed pamphlets and otherwise worked. I express gratitude to these people and appeal for the continuance of their support.

I think that there is now a deep tide of popular sentiment running in favour of the kind of proposal that I have brought forward in this Bill. It may be that the Bill will be taken over by the Government. I hope that it will, and perhaps be improved on. I shall be very grateful if something of that kind occurs. All I am asking is that the substance of what I am putting forward be placed before the people at the referendum when it occurs.

Will this extra question imperil the success of other questions? I think not - rather the opposite - because there is some emotion and momentum behind this question now. It may help in clarifying these other questions and getting them carried. But this is a subsidiary point. The main point is to help our Aborigines, the people to whom we owe, as I have said, a special duty and for whom we should have a special feeling.

I ask those who support these proposals both inside and outside the House to continue to work for them. It will be necessary to dispel any suspicion that we are out to transfer immense powers from the States to the Commonwealth. This, of course, is not so. We should like the Commonwealth to share a burden with the States in a matter which, in terms of their total responsibility, is a small and embarrassing matter but which, from our point of view in this Commonwealth, should be a matter of quite prime responsibility. I have had some contacts, I am glad to say, with some of the States already. These have been on a confidential basis and I do not wish to discuss them in this House but I would say that I am not without hope and prospect that all will turn out well there. But we must see that this referendum succeeds.

Let us continue our campaign. Let us do this primarily because we want to help our own Australian Aborigines, to help them in this period of transition, to bring them through to full citizenship - a goal which we will not achieve overnight but of which we should never lose sight.

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