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Tuesday, 21 August 1984
Page: 59


Senator HILL(10.02) —I wish to speak to the Constitution Alteration (Simultaneous Elections) Bill 1984. I do not wish to speak for long; the material is well known to us. It might be said that we went through all of this discussion not so long ago. To date the Government's record on constitutional change has been disappointing. We were said to have a constitutional reformist as an Attorney-General. To date I believe that it can fairly be said that he has let down his supporters badly.

It is interesting to note that, according to the speaking list tonight, not one member of the Government is prepared to speak in support of the Bill of the Attorney-General (Senator Gareth Evans). Let us examine why that might be the case. Last year we debated a Bill proposing a fixed term for the House of Representatives. I supported that Bill. It was an imaginative and worthwhile constitutional reform. I thought that it could and probably would result in fewer elections and would facilitate holding simultaneous elections for the House of Representatives and the Senate. I support that principle for obvious reasons-economic advantages, cost savings and convenience to government and the electors. Probably the most important reason for supporting it is that the reform would force a government to govern in both good times and bad. Over a year ago I said in my contribution to the debate on that Bill that the legislation would stop Prime Ministers assessing a time for an election simply because it was the time at which the governing party would be most likely to be returned to office. I said that the legislation would, therefore, enable the public to assess a government's performance during the whole of its three-year term, which is desirable. I said that the legislation would remove uncertainty about and speculation on early polls, which I think all Australians believe is damaging to business and the general conduct of affairs in this country. As I said, that was a potentially courageous reform, and I still believe it to be so.

What did the Government do with that legislation? The Government went to water. It failed to have the courage of its convictions. It never gave the people the opportunity to express their views on that proposal. I believe that that platform has been removed from the Labor Party's policy and that it has fallen into the too-hard basket. That action by an Attorney-General who, we were told was to be a reformist one, can be described only as most disappointing.

Not so long ago there was a whole series of Bills for constitutional change, including the so-called Constitution Alteration (Simultaneous Elections) Bill 1983 and the legislation on advisory opinions, exchange of powers and four-year terms. The Senate put a great deal of work into debating those Bills and, on occasions, improving them. I refer modestly to the small improvement to the Constitution Alteration (Advisory Jurisdiction of High Court) Bill 1983 to which I contributed through an amendment. On that occasion the Senate did its job. I supported some of the Bills and opposed others. We believed, as did all members of the Parliament, that we would go to the people with the legislation and that they would have an opportunity to consider it and to make a determination according to the Constitution's provisions.

The Government set a date for the referenda and started to expend money on them . It purchased the paper to prepare the for and against cases under the provisions of the Referendum (Constitution Alteration) Act. The Government properly said at that stage that it would give the people of Australia an opportunity to make a decision. The Government, however, decided to abuse the referendum process by financially supporting only the Yes case. It decided to spend $1.25m on the Yes case. Clearly that was contrary to the spirit of the Referendum (Constitution Alteration) Act, which enables Yes and No cases to be prepared and information on them distributed at public cost. Fortunately, the Senate managed to stop that abuse.

What was the reaction of the Government and the Attorney-General? They decided that if the people heard both sides of the argument and if there were equal government spending on both the Yes side and the No side of the case or if there were no spending on either side of the case the people might decide in a way contrary to the Government's wish. In those circumstances, the Government again decided not to proceed. It decided that the people should not be given the opportunity to make a choice. That was an example of what might be called democracy in action. The referenda proposals were withdrawn. That was very disappointing to those who were looking to this Attorney-General and this Government to match their promises on constitutional reform.

The Attorney-General has come back with two of the Bills. He decided to reintroduce them in the Senate and said that they will be put to the people at the next election. One might be excused for being somewhat unsure about whether that will occur, even if the legislation passes through both Houses of Parliament. Why does the Government now propose to put these issues at the time of a general election? The reasons are obvious. The first reason is that this action can be fairly described as an attempt to snow the issues, to camouflage the referenda issues and to bury them within the general election campaign. That action is disappointing because it was not the way in which we understood the Government would act. The Government said that it would give the people a fair opportunity to assess alternatives for constitutional reform. The second reason why the Government is putting the proposals to the people at the general election rather than well in advance of the election is that the Government does not want any argument. The Government's argument for the unnecessary early election is that it wants to put the elections for both Houses back into synchronisation. Of course, if it puts through these referenda at an early date it runs the risk of losing that argument. So it is really a quite cynical approach. Therefore, I assess that the methodology of what the Government is attempting to do has little about it that is honourable.

However, that leads me to look briefly at the content of what is proposed in this so-called simultaneous elections Bill. On the last occasion it was before the Senate I opposed it, and the reasons I opposed it then are the reasons I will again oppose it. It is dressed up to be a simultaneous elections Bill but if one reads the title one will see that it gives a hint as to its real purpose. The title reads:

An Act to ensure that Senate elections and House of Representatives elections are always held on the same day, and to adjust the terms of senators accordingly .

The hint comes at the tail of that description, in the words 'to adjust the terms of senators'. This Bill is really intended to abolish fixed terms for the Senate and to give the Prime Minister (Mr Hawke) the same control over the Senate as he now has over the House of Representatives. That power is to terminate the Senate term at his will simply by calling an early election for the House of Representatives. Therefore, all the advantages of a fixed term which I argued for in relation to the first Bill of this sequence which was put a year or so ago and which the Senate now has would be lost. The Prime Minister would take control of the Senate in a way he has never been able to before. I do not believe that is in the best interests of the Australian people.

I will look briefly at the arguments that the Attorney used for the Bill in his second reading speech. First, he said that by eliminating separate half-Senate elections the numbers of elections would be reduced. I remind the Senate that since Federation there have been only six House of Representatives elections and four Senate-only elections. So since Federation there have been very few single House elections. That might be compared with the number of simultaneous elections. There have been 21 House and half-Senate elections and an additional six House and full-Senate elections. Later this year, of course, we will have another simultaneous election. So the reduction in the number of elections is likely to be small. In fact it might be argued that, once the fixed term for the Senate has gone, it will be sufficiently tempting for the Prime Minister on future occasions to pull the Senate out earlier than three years and the ultimate result could therefore be more elections rather than fewer. Therefore, the first argument put by the Attorney in his speech I find far from convincing.

Secondly, the Attorney said that the elections being eliminated are unnecessary half-Senate elections which are unnecessary in that they do not affect who will govern Australia. But as I have said, there have been only four such elections since Federation. There have been very few of these so-called unnecessary elections. Therefore, that argument is not particularly strong. I accept that there are too many elections in Australia, but that is because Prime Ministers increasingly do not serve their full terms; they go to the people early. I think the average federal term in this country is about 2.4 years, and that is not going to be changed by this Bill. Simultaneous elections are desirable, but under the Constitution they are provided for now. Most elections are now simultaneous and if Prime Ministers would serve their full terms all elections would be simultaneous. In other words, this Bill is not needed for that purpose.

The Attorney also says that the proposal will ensure that the composition of the Senate reflects the current wishes of the people. I remind the Senate that under the current Constitution there will be an election for half the Senate every three years and that that, by comparative international standards, is a very short term. Therefore, the Senate will always be reasonably temporarily reflective of the position existing in Australia. So again that argument seems to have very little merit.

Lastly, the Attorney says that it will provide greater accountability of the Senate to the extent that senators will have to face the people if the senators' actions lead to a premature House of Representatives election. That, I believe, is getting to the nub of the question. We all know what that means. If the Attorney-General were seriously interested in the situation in which Supply was refused by the Senate, he would support Senator Rae's Bill whereby in that situation both Houses would go to the people. But he will not. What he really means by that statement is that when the Prime Minister wants to go to the people and to look to the Senate to justify what he is doing, he should have the opportunity to do so.

I want to look briefly at some of the achievements of this Senate over the last year and at the reaction of the Prime Minister to those achievements, which I think will indicate really what this Bill is all about. If one looks at the achievements of the Senate over the last year and at the role of the Opposition, particularly in the Senate, it will be seen that it has fairly and properly acted as a House of review. It has been able to highlight defects in government legislation which would otherwise have been imposed on the Australian people. I touch upon only a few: Labor's attempts to get through the Senate retrospective tax legislation in relation to bottom of the harbour schemes and more recently in relation to superannuation funds; its handling of the proposed assets test when the Opposition was able to highlight glaring anomalies and inequities after it was announced in the last Budget. We heard from the Government that the Senate was hindering and obstructing what the Government proposed to do, until on 22 February the Prime Minister said at the National Press Club that really what the Senate was about was accurate; there were anomalies and the proposals should be returned to a committee for further consideration.

The lump sum superannuation proposals were held up by the Senate against an outcry by the Government, but that delay resulted in improvements. We remember that the Attorney-General absolutely condemned the role of the Opposition in referring the National Crime Authority legislation to the Senate Standing Committee on Constitutional and Legal Reform and then, after that report had been put down by the Committee, he congratulated the Committee upon its work and , as a result, took up a number of its recommendations; and a better Bill has resulted. The Sex Discrimination Bill was held up by the Senate which led the Government itself to bring in 53 of its own amendments, thereby acknowledging that the Bill was deficient and needed gross improvement.

How does Prime Minister Hawke assess what the Senate has been doing in this regard, the constructive role it has been playing? He was quoted in the Age of 16 December 1983 as saying:

I've had enough of this recalcitrant Senate blocking the will of the Government . I am not going to be in a situation . . . where we are dictated to as the democratically elected Government by the mish-mash of opposing forces in this country. If they think they can determine the pattern of the Government, then they have another think coming.

That is what this so-called simultaneous elections Bill is all about-this Prime Minister wanting to be able to condemn the Senate for doing its job well and then taking the Senate to the people in the hope of gaining a majority and reducing it to a toothless tiger. I am pleased that that opinion is not just mine. I refer to the well-known commentator Malcolm Mackerras who in Notes on the News on 1 February 1984 said about this proposal:

In the case of so-called 'Simultaneous Elections' my view is that this is quite the most dishonest proposal ever put to the Australian people; the public case in its favour is a series of lies, and it has already been twice rejected, in 1974 and 1977.

It is not the purpose of that proposal to give the Australian people the benefit of joint elections for the two houses. Its purpose is to give more power to the Prime Minister and to weaken the independence of the Senate.

The great protection that the Senate has is its separation from the manipulative power of the Prime Minister through having a fixed term. I refer to Odgers in Australian Senate Practice, 1976, as the leading commentator and Australian authority in the field. He said:

All free systems of parliamentary government acknowledge the need for checks and balances against any concentration of unbridled power and, so far as the Australian system is concerned, the Senate is the most important of the constitutional checks and balances.

That check and balance would be largely lost if control were passed to the Prime Minister, in the same way that he controls the House of Representatives. In those circumstances, I trust that this Bill will be defeated and that that event will not come to pass. If the Bill is not defeated by this Parliament, I trust that it will be rejected by the Australian people later this year.