When, in 1967, Harold Holt’s government put to the Australian people a proposal to amend section 51 (xxvi) of the Constitution so that the Commonwealth could make special laws with respect to Aboriginal people, the maverick Liberal MP Billy Wentworth warned that this could mean that in the future, a government could not only make laws to benefit Indigenous Australia, but also to disadvantage it.

He was ignored; the Referendum was supported by the vast majority of the Australian people, who also voted to give Aboriginal Australians the right to vote.

But Mr Wentworth was right, although no one in 1967 imagined such an awful consequence to such a socially progressive change. Billy Wentworth will no doubt be sadly shaking his wise head, wherever he is (Wentworth died in 2003), as the Howard government dropped its 500 pages of laws to respond to its politically manufactured Northern Territory Aboriginal emergency, on the Parliament this week.

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This package of laws clearly, as former Federal Court judge Murray Wilcox argued yesterday, discriminates against Aboriginal Australians, but it’s probably constitutional. The Howard government is arguably the first Commonwealth government since 1967 to use section 51 (xxvi) to discriminate against, rather than for, Aboriginal people – and it knows it is on solid ground because it has done it before.

Ten years ago a challenge was brought in the High Court to a Howard government law designed to prevent Aboriginal opposition to the building of a bridge in South Australia at Hindmarsh Island – the island from which was spawned the phrase ‘secret women’s business’.

One of the arguments put by the representative of the local traditional owners of the Hindmarsh Island and surrounding waters, the Ngarrindjeri people, was that that s 51(xxvi) only authorizes laws for the benefit of the people of a race or, in the alternative, for the benefit of the people of the Aboriginal race.

That argument was knocked on the head by what was then a relatively liberal High Court, not without regret. As Justice Mary Gaudron lamented,

Whatever the international standards and community values in 1967 and whatever the intention of those voting in the 1967 referendum, the bare deletion of an exception or limitation on power is not, in my view, capable of effecting a curtailment of power. On the contrary, the consequence of an amendment of that kind is to augment power. Accordingly, if, prior to 1967, s 51(xxvi) authorised special laws which were not for the benefit of the people of a particular race, the referendum did not, in my view, alter that position.

When, in 1966, Billy Wentworth wanted to insert a clause into the Constitution, which would forbid the Commonwealth and the States from making or maintaining any law which subjected any person born or naturalised within the Commonwealth “to any discrimination or disability within the Commonwealth by reason of his racial origin”, with a proviso that the section should not operate “so as to preclude the making of laws for the specific benefit of the aboriginal natives of the Commonwealth of Australia”, he should have been heeded by MPs of all sides.

If he had got his way, Mr Brough would not have been able to introduce his nasty package of bills this week.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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