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Wednesday, 1 March 1967


Mr HAROLD HOLT (Higgins) (Prime Minister) - I move:

That the Bill be now read a second time.

The purpose of this Bill is to make alterations to the two provisions of the Constitution which make explicit reference to people of the Aboriginal race. One alteration - that proposed by clause 3 of the Bill - is designed to repeal section 127. An identical proposal was passed unanimously by both Houses of the Parliament in November 1965. Section 127 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 The Government continues to believe that this section should be repealed.

The principal reason for including section 127 in the Constitution was the practical difficulty of enumerating the Aboriginal population at that time. No doubt in 1900 this was a very substantial problem. It is, however, no longer a serious difficulty, and the basis for the existence of the section consequently does not now exist. I should emphasise that section 127 does not affect the qualifications of Aboriginals to vote at Commonwealth elections. Section 41 has always guaranteed an Aboriginal the right to vote at elections if he has a right to vote at elections for the more numerous House of the Parliament of the State in which he is a voter, and this Parliament itself has removed all disabilities in respect of voting at Commonwealth elections so far as Aboriginals are concerned. They are now entitled to enrol and to vote and should, in the view of the Government, be counted as part of the population of the Commonwealth, or their State or Territory, for any purpose. The simple truth is that section 1 27 is completely out of harmony with our national attitudes and modern thinking. It has no place in our Constitution in this age.

The second alteration, which is contained in clause 2 of the Bill, is the deletion of the words 'other than the Aboriginal race in any State' from paragraph (xxvi) of section 51.

Section 51 (xxvi) of the Constitution reads: 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 speciallaws.

Since the Government's earlier proposals for constitutional alterations were put before the Parliament, a great deal of thought has been given, both inside and outside the Parliament, to the constitutional provisions relating to the Aboriginal people and there has been much activity by Government private members and organisations concerned with the welfare of the Aboriginals. In the light of this activity and the many representations made, the Government has reviewed the position and has decided that an amendment of section 51 (xxvi), as provided for in the Bill, should be put to the people, in addition to the proposal for the repeal of section 127. In coming to this conclusion, the Government has been influenced by the popular impression that the words now proposed to be omitted from section 51 (xxvi) are discriminatory - a view which the Government believes to be erroneous but which, nevertheless, seems to be deep rooted.

An effect of omitting these words will be the removal of the existing restriction on the power of the Commonwealth to make special laws for the people of the Aboriginal race in any State if the Parliament considers it necessary. As the Constitution stands at present, the Commonwealth has no power, except in the Territories, to legislate with respect to people of the Aboriginal race as such. If the words other than the Aboriginal race in any State' were deleted from section 51 (xxvi), the result would be that the Commonwealth Parliament would have vested in it a concurrent legislative power with respect to Aboriginals as such, they being the people of a race, provided the Parliament deemed it necessary to make special laws for them. It is the view of the Government that the National Parliament should have this power. If the proposals relating to Aboriginals are approved by the people, the Government would regard it as desirable hold discussions with the States to secure the widest measure of agreement with respect to Aboriginal advancement.

I think I should say a few words about the suggestion that has been made that we should include a constitutional guarantee against discrimination on the ground of race. Such a proposal was put forward, in particular, by the honourable member for Mackellar (Mr Wentworth) in a private member's Bill. The recommendation to include such a guarantee in our Constitution has the obvious attraction of providing evidence of the Australian people's desire to outlaw discriminatory practices of every kind, but the disadvantages of the inclusion of such a guarantee are so substantial that the Government does not believe that it should be pursued. Such a guarantee could provide a fertile source of attack on the Constitutional validity of legislation which we, at this point of time, would not consider discriminatory. The extent of litigation that has arisen from section 92 provides a serious warning of the ramifications of an apparently straightforward constitutional guarantee. Moreover, such a guarantee would operate only to limit government action, lt would not affect actions by individuals. Racial discrimination, if it exists in a community, is the outward manifestation of beliefs rooted in the hearts and minds of some men and women. I do not believe that such beliefs are to be found on any significant scale in this country; but even if it were otherwise, 1 do not think the position could be remedied in practice by a constitutional guarantee.

Accordingly, the Government believes that the best course, the most effective course, for the Commonwealth to adopt is to seek the amendments proposed in the Bill. It proposes to submit them at the same time as the referendum on the nexus provision - section 24 of the Constitution. I commend the Bill to the House.

Debate (on motion by Mr Whitlam) adjourned.







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