As you can see from the sample above, the INCLUSION of specific Aboriginal provisions in the original constitution has been sold as a negative, with all manner of accusations and probable anti-aboriginal motivations levelled at them.
Not even those paid to populate the Australian Parliament House website can manage to specify why they may have been included. Perhaps it suits their purposes to allow conspiracies to propagate in the vacuum.
What surprises me about this is that there is no mystery behind why Sect 51.xxvi was included in the Constitution, and nor should there be. We have a full written transcript of all the debates and discussions undertaken by the drafters of the Constitution between 1890 and 1898 (Records of the Australasian Federal Conventions of the 1890s).
From the records, it is clear that the drafters wished to protect Australian society from “any practices from taking place which are abhorrent to the ideas of humanity and justice of the community” which might arrive with foreign cultures.
Note: ‘foreign cultures’…not indigenous cultures!
The below is an extract from one of the few aboriginal sites that have got it right in regards to why Section 51 existed as it did, without automatically playing the racism card.
Section 51 meant that the federal government could make laws for anyone in Australia – except its Aboriginal population. Originally this clause was worded that way to enable parliament to make laws discriminating against racial groups like the Kanakas in Queensland. The words ‘other than the aboriginal race in any State’ were intended to exempt Aboriginal people from discrimination.
The 1965 prime minister Robert Menzies argued passionately against changing this section and held that if the phrase was removed the parliament could set up “a separate body of industrial, social, criminal and other laws relating exclusively to Aborigines”. The inclusion of the words were thought to be “a fundamental safeguard against discriminatory Commonwealth legislation directed against [Aboriginal people]”.
But as it stood the Commonwealth also had no power to make laws for the benefit of Aboriginal people.
Creative Spirits – Australian 1967 Referendum
Note this: “But as it stood the Commonwealth also had no power to make laws [SPECIFICALLY/SOLELY] for the benefit of Aboriginal people.”
The debates clearly show that they were concerned about the characteristics of other racial groups (besides the Kanakas). The Afghans and Chinese, for example.
It’s interesting to note that the clause was also originally drafted to protect both Aboriginals and Maoris (when New Zealand’s inclusion in the Federation was being considered). That the Maoris had a treaty, and that they were placed within the same exclusionary clause, lends further weight to the non-discriminatory nature of it.
Bottom line:
Racist? Yes (although some might say understandable in the context of the period).
Discriminatory against Aboriginals? No, quite the opposite. That is, unless your aim is affirmative action/positive discrimination, and I dare say the founders didn’t have that notion at the forefront of their minds.
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