Koori History Newspaper Archive

History favours a Native Title compromise

Courier Mail - 1st January 1998

THIRTY years ago, the Australian people decided by an overwhelming majority that constitutional discrimination against the Aboriginal people should cease. What the Cabinet papers from that era now reveal is that there were substantial divisions within Harold Holt's government as to whether the people should even have been asked to right that constitutional wrong. The Country Party minister for the territories _ who essentially was responsible for Commonwealth policy in relation to Aboriginal people _ tried to persuade Cabinet that ``the Aboriginal problem'' (as he described it) was ``largely a social one''. He expressed concern that the advantages of removing a provision in the Constitution discriminating against Aborigines were outweighed by ``the practical and political disadvantage of placing the Commonwealth in a position where it must either take over responsibility for Aboriginal welfare throughout Australia . . . or be subjected to increasing criticism for not doing so''.

The referendum only took place because the Menzies government in 1965 and the Holt government subsequently were determined to try to break the constitutional nexus between the size of the House of Representatives and the Senate. The Constitution required that the House be as near as possible to twice the size of the Senate. The Government wanted to increase the House, but not the Senate. It decided to put an additional constitutional question to the people to abolish the ban on Aborigines being counted as part of the Australian population. That was an uncontroversial but popular issue, which would have done nothing to improve the conditions of Aboriginal people. Its inclusion was intended to enhance the prospects of passing the nexus question (which was eventually defeated).

During 1965 and 1966 the Menzies and Holt governments had ignored pleas by attorney-general Billy Snedden to include another referendum question concerning the Aboriginal people. Section 51(xxvi) of the Constitution gave the Commonwealth power to make special laws with respect to the people of any race, other than the Aboriginal race in any state. This was seen by many people as being discriminatory, although it probably was not intended to be so: as it stood, the section actually prevented the Commonwealth from passing discriminatory laws against Aboriginal people. The section was designed and used to allow the Commonwealth to make laws to deport people of specific races _ such as South Sea Islanders.

Many Liberals in the mid-1960s thought this section should be changed to allow the Commonwealth to make laws for the benefit of Aboriginal people. The Labor Party had also raised the issue in parliament during Sir Robert Menzies' last years as prime minister. The issue was finally brought to a head by a Liberal backbench MP, William Charles Wentworth, who gave notice of a private member's Bill to give the Commonwealth power to make laws for ``the advancement of the aboriginal natives of the Commonwealth of Australia'', and to outlaw all racially discriminatory laws throughout Australia. It may be that the possibility of an embarrassing vote in the House persuaded the Cabinet to adopt the less radical proposal to change the race power _ the actual submission made by the new attorney-general, Nigel Bowen, was essentially the same as that written by his predecessor, Snedden.

But the passage of the referendum did little at the time to advance the cause of Aborigines. Although the government established a small Office of Aboriginal Affairs headed by Nugget Coombs, it was determined not to use its newly acquired legislative powers to override the states. While the Whitlam government later introduced a few laws based on this 1967 constitutional power, the Keating government's Native Title Act was the first time its potential was realised.

Bill Wentworth was one of the few people in 1967 who had any expectation that the Commonwealth would pass laws dealing with Aboriginal lands. He supported the Bill authorising the legislation in a speech in which he said, ``I believe that these people need some discriminatory legislation in their favour . . . These people need help. They need a secure title to their lands.'' The Country Party _ now renamed the National Party _ rightly recognised that there would be pressure on the federal government to use beneficially any power it obtained from the people. It had a sectional interest in preventing the Commonwealth from interfering with the way the states administered their land laws and dealt with their Aboriginal people.

Harold Holt was not one of Australia's great prime ministers, but he has been rightly praised for his concern to diminish discrimination in Australian life and to promote national unity. He saw the need to change his government's previous proposals for the Aboriginal referendum to take account of deeply rooted concerns in the community about the discriminatory effect of the constitutional provision. On the third reading of the referendum Bill, he said he believed the House could take great pride in the quality of the debate.

Regrettably, no similar claim can be made for what happened in the House of Representatives earlier this month when it rejected the compromises adopted by the Senate to the present Prime Minister's 10-point plan to amend the Native Title Act. John Howard told the House that the national interest must be asserted over a sectional or political interest, yet he told the Coalition parties that he was bound by his ``covenant'' with the miners and pastoralists to accept no changes to his 10 points.

Over the next few months, the Prime Minister should reflect on how history will regard his approach to this divisive issue. The fact that some of his backbenchers have spoken out in the Parliament and elsewhere against his adoption of the ``bucketloads of extinguishment'' approach of the National Party leadership should make him reconsider. The 1967 referendum was a remarkably unifying experience, which promised much for the Aboriginal people. A double-dissolution election with race as a central issue would be divisive.