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Wednesday, 27 November 1974
Page: 2833

Senator CAVANAGH (South AustraliaMinister for Aboriginal Affairs) - I move:

That the Bill bc now read a second time.

The purpose of this Bill is to supersede certain provisions of the laws of Queensland that discriminate against Aborigines and Torres Strait Islanders and deny them basic human rights. Some of these laws are discriminatory on grounds of race and others are of general application. They have the effect of imposing on Aboriginal and islander reserves a legal regime that is different from that which applies to persons in other parts of Queensland. The elimination of racial discrimination has been one of the major preoccupations of the international community since the Second World War. The United Nations charter is based on the principles of dignity and equality inherent in all human beings and the charter provides that one of the purposes of the United Nations is to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race.

A comprehensive series of instruments has been developed by the United Nations in fulfilment of these objectives. The Universal Declaration of Human Rights, the 25th anniversary of which was celebrated on 10 December 1973, proclaims that all human beings are born free and equal in dignity and rights, that everyone is entitled to all the rights and freedoms set out in the declaration, without distinction of any kind, in particular as to race. The declaration and subsequent instruments provide, for example, that all are equal before the law and are entitled without any discrimination to equal protection of the law. Everyone has the right to freedom of movement and residence and no one shall be subjected to arbitrary interference with his privacy, family or home. Everyone has the right to just conditions of work without discrimination and to protection from forced or compulsory labour. The International Convention on the Elimination of All Forms of Racial Discrimination (1965), which was signed on behalf of Australia by the then Minister for External Affairs, Mr Hasluck, on 13 October 1966, and to which 81 countries have subscribed, requires countries to prohibit racial discrimination in all its forms and to guarantee equality before the law without distinction as to race.

The United Nations has supplemented these instruments with numerous resolutions, conferences and programs designed to promote the elimination of racial discrimination. For example, the Proclamation of Teheran issued by the International Conference on Human Rights in 1968 observed that the implementation of the principle of non-discrimination, embodied in the United Nations Charter, the Universal Declaration and other instruments constituted a most urgent task of mankind. It further stated that gross denials of human rights arising from discrimination on grounds of race outraged the conscience of mankind. The Australian delegation to this conference included the then AttorneyGeneral, Mr Bowen, the present shadow Minister for Foreign Affairs, Mr Peacock, and Senator Murphy. Subsequently, the United Nations designated 1971 as the International Year for Action to Combat Racism and Racial Discrimination, and vigorous programs for the year were conducted throughout the world, including Australia. On 6 December 1971, the General Assembly of the United Nations adopted a resolution urging further ratifications of the Racial Discrimination Convention and this resolution was carried by 10 1 voting in favourincluding Australia- none against and 5 abstentions. On 10 December 1973, the Decade for Action to Combat Racism and Racial Discrimination was inaugurated by the United Nations. The program proposed by the United Nations for action on the national level during the decade includes the introduction of legislation, where appropriate, to prevent racial discrimination.

Against this background, it has been the conscious policy of both Liberal and Labor governments to eliminate all legislation in Australia that contains elements of racial discrimination. In his policy speech on 8 October 1 969, the then Prime Minister, Mr Gorton, stated:

In recent years most discriminatory legislation against Aborigines has been abolished. We intend to see that this process is completed in the life of the next Parliament upon both State and Federal levels.

In the Governor-General's Speech on the opening of Parliament on 3 March 1970 the following statement was made:

My Government . . . hopes that during the lifetime ofthe Parliament any remnants of discriminatory legislation against Aboriginals will bc eliminated.

On 2 1 May 1970 Senator Keeffe received a letter from the then Minister-in-Charge of Aboriginal Affairs, Mr Wentworth, in relation to the Queensland legislation observing that, as a result of the 1967 referendum, the Commonwealth had concurrent legislative power with the States regarding Aborigines. The then Minister stated that the Commonwealth and the States had been discussing discriminatory and special legislation for some years, and that in the previous decade major changes had been made in all State Acts relating to Aborigines. He went on to say, as reported in Senate Hansard, 2 1 May 1970, at page 1750:

I would hope that the Commonwealth will not be compelled to bring down legislation in order to invalidate some sections of a Slate law.

The letter went on to say that discriminatory State legislation was being discussed with individual States and that he had asked the Attorney-General to assist him in these discussions. In a subsequent answer to a parliamentary question, Mr Wentworth identified the Queensland legislation with respect to Aborigines and Torres Strait Islanders as being 'prima facie discriminatory'. On 19 January 1971, the then Prime Minister, Mr Gorton, speaking in Singapore, said:

Racism is an unmitigated evil . . . I am prepared to say and mean that we will abolish racism within Australia. . . . There is legal discrimination still in some Australian States against Aboriginals, but my Government has told those States that those laws repealed by those States within two years, or if they are not, we will move in and repeal them.

However, in April 1971 the then Prime Minister Mr McMahon, had discussions with the Queensland Premier on this matter and he agreed, in relation to the Queensland law permitting the management of the property of an Aboriginal without his consent, that in special cases there was a responsibility to protect Aboriginal people from exploitation. He regarded the measure as one for the protection of the Aboriginal people and not one of discrimination- Hansard 20 April 1971, page 1663.

In 1971 the United Nations Association of Australia set up an Australian Committee to Combat Racism and Racial Discrimination, as part ofthe United Nations program for the year that I have mentioned. This Committee consisted of representatives from 125 prominent community organizations. The then Australian Government made a grant of $12,000 to enable the Committee to carry out its program. In its report of its activities of the year, the Committee stated that during the year it had repeatedly urged the Australian and State Governments to repeal all legislation of a discriminatory nature and to take all necessary steps to ratify the Racial Discrimination Convention. The report stated that in reply to representations made by the Committee the then Prime Minister said:

The Commonwealth is pledged to remove all discriminatory legislation against Aborigines by the end of 1972. 1 regret that it is impossible to complete during 1971 the action necessary for Australia to ratify the Convention. You may be assured, however, that the Government is continuing its efforts to end all forms of racial discrimination in Australia.

I draw honourable senators' attention to the policy platforms of the Liberal Party and the Labor Party on the issue of discrimination against Aborigines. The 1972 platform of the Labor Party included the proposal that the Australian Parliament should legislate against all forms of discrimination as part of a program to provide equal rights and opportunities for all persons. The federal platform of the Liberal Party, as approved by the Federal Council in October 1974, includes proposals for the implementation and enforcement of legislation to promote equality of rights between all Australian citizens and to remove any form of discrimination against Aborigines. The present

Australian Government has made numerous attempts to resolve these matters by consultation. Immediately after the 1972 elections, the Prime Minister (Mr Whitlam) wrote to the Queensland Premier on the matter and there were discussions on the matter at a meeting between the Prime Minister and the Queensland Premier on 28 March 1973. There were subsequent discussions between the Ministers of the Australian and Queensland Governments responsible for Aboriginal affairs.

As no action has been taken by the Queensland Government on these matters, provisions were included in the Racial Discrimination Bill 1973 to supersede the Queensland law that authorised the management of the property of Aboriginals and Islanders without their consent. In a teleprinter message on 27 September 1973 from the Prime Minister to the Premier the Prime Minister sought consultations with respect to the Bill. On 20 November 1973, the Prime Minister sent a further teleprinter message to the Premier of Queensland pointing out that, in addition to the provisions with respect to property management, there were other features of the Queensland legislation with respect to Aborigines and Islanders that were unsatisfactory from a civil liberties' viewpoint, including provisions relating to liberty of movement to enter a reserve, legal representation before and appeal from Aboriginal courts, and relating to compulsory labour and conformity to a code of conduct on reserves. The Prime Minister sought to make these matters the subject of consultations.

I discussed the matter with the Queensland Minister in charge of Aboriginal affairs on 8 January 1974. In addition the Attorney-General (Senator Murphy) wrote to the Queensland Attorney-General on 15 January 1974 stating that his officers would be available for consultations on these matters. On 24 January the Queensland Attorney-General replied stating that State officers would be made available for this purpose. However, tentative arrangements made for these discussions to be held on 1 1 February 1974 and 21 March 1974 were cancelled due to the unavailability of State officers. On 3 April 1974 the State officers wrote stating that the question of a convenient date for appropriate discussions would be kept in mind and that further advice would be provided as early as possible. No further reply has been received from the State officers.

The introduction of legislation to supersede the Queensland laws was envisaged in the Governor-General's Speech on the opening cf Parliament on 9 July 1974 and a further letter was sent by the Prime Minister to the Queensland Premier on 20 October 1974 informing him that draft legislation to override discriminatory aspects of the Queensland legislation was being drafted. He pointed out that on this and other matters he had sought mutually acceptable decisions through consultation and was prepared even at that stage further to pursue that course if there was still room for fruitful negotiation. The Queensland Premier replied on 1 November 1974 stating that steps had been taken to enact amendments to the Queensland Acts to remove restrictions on the control by an Aboriginal or Islander of his property. The Premier suggested that consultations be held but it has not yet been possible for this to be done.

The amendments referred to by the Premier were passed by the Queensland Parliament and came into force on 1 November. The amendments permit an Aboriginal or Islander to terminate the management of his property by notice in writing witnessed by a justice of the peace. However, the amendments leave intact provisions that authorise the continued management under the present legislation of property managed without the consent of Aborigines and Islanders under earlier Queensland legislation. Moreover, the amendments do not deal in any way with the matters of freedom of movement of an Aboriginal onto a reserve, legal representation before, and appeal from, Aboriginal courts, compulsory labour and the other unsatisfactory features of the Queensland laws. It is the contention of the Queensland Government that the Aborigines and Islanders in Queensland do not desire any further amendments to the Queensland law. The Australian Government does not accept this contention. It does not believe that any group of Australian citizens should be subject to laws that are inconsistent with fundamental rights.

The legislation now introduced will deal with the discriminatory aspects of Queensland legislation I have referred to. Clause 5 provides that any property in Queensland of an Aboriginal or Islander shall not be managed by another person without the consent of the Aboriginal or Islander and that any consent so given, whether given before or after the commencement of the Act, may be withdrawn at any time. The purpose of clause 6 is to provide that it is not to be necessary for an Aboriginal or Islander to obtain a permit to enter a Queensland reserve. The present Queensland law provides that, subject to certain exceptions, a permit must be obtained to enter a reserve. This means, for example, that Aborigines and Islanders are unable to visit their relations on reserves unless they apply for, and are granted, a permit to enter the reserve.

Clause 7 provides that an Aboriginal or Islander is not to be penalised by reason only that he has conducted himself in a way that is not to the satisfaction of an authority or person appointed under Queensland law if his conduct was not unreasonable. The purpose of this provision is to supersede such provisions as regulation 1 4 of the Aborigines Regulations, in its application to Aborigines which provides that a person authorised to be on a reserve shall conduct himself properly and to the satisfaction of the Aboriginal council and manager or district officer of a reserve. The purpose of clause 8 of the Bill is to deal with those provisions of the Queensland legislation that authorise persons to enter the premises of an Aboriginal or Islander for certain purposes. The clause provides that it is not to be possible for a person to enter the premises of an Aboriginal or Islander without his consent unless, if the premises were not situated on a reserve, the entry would not be unlawful. The purpose of the provision is to put an Aboriginal and Islander in the same position in this matter as a person outside a reserve.

Clause 9 deals with legal proceedings. It provides that an Aboriginal or Islander is to be entitled to be legally represented in proceedings for an offence before an Aboriginal or Island court. The present Queensland law permits representation only with the consent of the court. Clause 9 also deals with the question of appeals from Aboriginal and Island courts in criminal proceedings. It will have the effect of preventing an Aboriginal or Islander from being convicted by such a court of an offence against regulations or bylaws made under the legislation unless a right of appeal exists in the matter to a superior court. The present Queensland law provides merely for an appeal to a district officer and to a visiting justice.

The purpose of clause 10 is to deal with provisions of by-laws under the Queensland legislation which provide a system of compulsory labour. The by-laws provide that all able-bodied persons over the age of 15 years residing on the reserve shall, unless otherwise determined by the manager of the reserve, perform such work as is directed by the Manager or person authorised by the manager. Clause 10 provides that an Aboriginal or Islander on a reserve is not to be required to comply with any direction to perform work unless the direction is given in relation to the performance of reasonable community obligations or unless the work is in relation to an obligation that the Aboriginal would be obliged to perform if the direction were given outside the reserve.

Clause 1 1 deals with terms and conditions of employment. It provides that Aborigines or Islanders in Queensland are not to be employed on terms and conditions of employment that are less favourable than those applicable to other employees. Queensland laws with respect to Aborigines and Torres Strait Islanders contain provisions relating to the employment of Aborigines and Islanders in accordance with the provisions of awards, but these provisions only apply outside a reserve. There is also a provision which provides that an Aboriginal who is an aged, infirm or slow worker may be paid less than the basic wage or minimum wage prescribed by the award. This provision only applies to Aborigines and does not apply generally to persons in the work force.

The provisions of the Bill are not intended to replace the whole of the Queensland legislation with respect to Aborigines and Torres Strait Islanders. They are intended only to remove elements of this legislation that are inconsistent with what the Australian Government regards as basic civil rights to be enjoyed by all Australians, without regard to race or colour. The provisions that the BUI will supersede are quite contrary to the principles of equality and dignity contained in the United Nations charter and in the other international instruments that I have described. They should form no part of Australian law and ought to be removed. I commend the Bill to the Senate.

Debate (on motion by Senator Rae) adjourned.

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