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Thursday, 24 February 1977

Mr ELLICOTT (Wentworth AttorneyGeneral) - in reply- This debate has been very interesting and I think very productive because there have been contributions from both sides of the House without the customary abuse that accompanies a discussion on electoral matters. I can remember that the debates which took place in 1975 were somewhat more heated than the debate which we have had in this House today. It is proposed that we go into Committee on this legislation, but there are a number of matters with which I want to deal before we do that so that I can answer some of the questions raised by honourable members.

Honourable members opposite have asked the question: Why do we need the legislation? Obviously it is unthinkable that in a democracy we should not put into our legislation the basic steps by which the democratic process will come into operation. In the Commonwealth Electoral Act we provide for redistribution. In the Representation Act we provide for the determination of numbers. In the Census and Statistics Act we provide for the counting of the people of the Commonwealth. Those are all matters that have to be dealt with by legislation. Although in a sense one could have a redistribution on an executive basis, at the same time obviously it is highly desirable that our people know what the Distribution Commissioners are about. What they are about, of course, is implementing the provisions that this Parliament will lay down in this legislation.

The Representation Act, the Census and Statistics Act and the Act that we are debating are a trilogy which will implement the decision of the High Court. That decision has made it quite clear that there is a need to amend the existing relevant legislation in order to bring it into accord with the Constitution as it was interpreted in the 2 High Court decisions. For instance, although the High Court said that it was enough just to rely on section 24 of the Constitution, there is a need to do something about section 10 of the Representation Act and the amending legislation in fact does that. The Leader of the Opposition (Mr E. G. Whitlam) seemed to get some glee from the fact that perhaps the Chief Justice had approved the legislation of 1964. I only wish that the Leader of the Opposition had looked at the Act of 1964. Had he done so he would have found that it was introduced on 15 October 1964. He will find also that the Chief Justice left this place on about 27 April 1 964. So I guess, as usual, the barb was in his tongue because of things that he can never forget.

Much of the debate has turned on the amendment to section 19 and the amendment to section 25 of the Commonwealth Electoral Act. For instance, section 19 deals with the principle in relation to 5000 square kilometres and the other section deals with redistribution being forbidden, in effect, because of the quota coming out of balance within a period of 7 years. The attack in this regard has been based on the principle of one vote one value. Obviously that is not a principle which is practicable in any sense whatsoever. I want to demonstrate as quickly as I can, first of all, that you cannot apply the principle, that the Constitution does not require it, and that the Labor Party has never adhered to it. When you add those 3 things together, I am not sure what you get- I will not call it humbug or hypocrisy- but let us just put the principle of one vote one value in its place, because to try to espouse it in a logical way just is not possible.

For instance, the Constitution itself belies the principle of one vote one value. Section 24 of the Constitution provides a method of dividing States in proportion to the respective populations and it allows the quota system. If after the appropriate division is made there remains greater than one half of the quota, one more member can be chosen in that State. Quite clearly, if the remaining number is less than one half of the quota- in other words, if it amounts to only 49 per cent- the State concerned does not get another member. If the remaining number represents5 1 per cent of the quota, the State concerned does get another member. It does not take a great mathematician to work out that that system immediately takes one away from the one vote one value principle. Then again, section 29 of the Act, which deals with representation and the subdivision of boundaries and so on for the States, allows allegiance and reference to State law. If the founding fathers had intended that one vote one value be written into the Constitution, they would hardly have left it in that form. Of course, the Commonwealth Parliament did not legislate for a certain period, and the State laws applied.

The reference in section 24 of the Constitution is to the people of the Commonwealth, not the electors of the Commonwealth. The High Court has recently re-endorsed that. The term 'the people of the Commonwealth' means all the people of the Commonwealth and not just those chosen to be electors. It says that the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth. Of course, that does not mean that it is chosen by people of unsound mind or by babes in arms. It is a political expression but, at the same time, when you come to the numbers and the nexus in section 24, you find that the term the people of the Commonwealth' does include all those people, because honourable members in this chamber do represent all the people in a very real sense. Those who are given the privilege of voting do so on their own behalf and on behalf of the people in the electorate. Therefore in that sense the Constitution does not espouse the principle of one vote one value. We know that each of the original States was to have at least 5 members of Parliament and we know that Tasmania divides up in a certain way. So again you cannot have one vote one value; it just is not possible. It is not written into the Consitution.

Of course, there are certain other practical effects. The senators are chosen by the people but there is an equal number of senators in each State. I do not have to take honourable members through the figures, but it can be seen that again you do not get one vote one value. If you go through the quotas of electors -

Mr Cohen - Oh, come on!

Mr ELLICOTT - The honourable member for Robertson should not leave. I have something for him in a moment. If we look at the quotas based on the latest figures we find that ley are different for the various States. So again you do not get one vote one value. Really the Labor Partyhas never espoused the principle of one vote one value except in this chamber when its members take part in debates on electoral matters. Let me read to honourable members the terms of the 1974 referendum. I do not know that Labor Party members yet understand what they were espousing at that time. They proposed an amendment to section 29 of the Constitution in these terms:

The numbers ascertained in respect of the several divisions of a State by dividing the number of people in each division by the number of members to be chosen for the division shall be, as nearly as practicable, the same.

In other words, the purpose was to divide the electorate into equal numbers. Of course we know why that was proposed. If it was carried out in that way the result would be more city seats and fewer country seats. The Labor Party did it in that way to instal itself, it thought, in power. That was not one vote one value; far from it. That system was a complete departure from that principle. So the Labor Party has not espoused the principle of one vote one value in terms of what it has done outside this chamber.

Mr DEPUTY SPEAKER (Mr Lucock)Order!The honourable member of Adelaide has been constantly interjecting for the last few minutes as the Attorney-General has been -

Mr Hurford - Well, he has been advancing dishonest arguments.

Mr DEPUTY SPEAKER -The honourable member for Adelaide will cease interjecting and obey the Chair.

Mr Cohen - The Attorney-General has been -

Mr DEPUTY SPEAKER -The honourable member for Robertson will do the same. Even though he has returned to his proper seat he is still out of order. I call the Attorney-General.

Mr ELLICOTT - In addition, we have the 1975 redistribution, which reveals its own facts. In that redistribution one finds some very interesting figures. The Leader of the Opposition has spoken in this debate and has espoused the principle again of one vote, one value. But listen to this: In the 1975 redistribution that was brought forward in this Parliament the electorate of Gwydir had 67 560 people and Werriwa 59 070 people- a difference of 12 per cent. Is this an indication of one vote, one value? Ralph Hunt, with one of the largest electorates in his State, had 67 560 people; the then Prime Minister had 59 070 people in his electorate. Where is the principle of one vote, one value in that?

I am only saying this because I believe a lot of nonsense is spoken and espoused around the principle of one vote, one value. I am not suggesting that a principle is not involved in this, but lt is a very broad principle, for the simple reason that it is just not practicable to achieve the principle of one vote, one value. Honourable members opposite go on discussing it and talking about it, but all the time they are not able to aim for it. Perhaps it could be achieved in a fixed agrarian society, but it just cannot be achieved in the society we have in 1 977.

Quite obviously, in providing for a redistribution there must be a time lag between the time the numbers of the people are counted and the time they are divided up. We all know that it takes something like 12 months to have a redistribution and if one is to be held in a 3-year period it has to commence no later than the end of the first year. Of course, that is what these amendments seek to provide for in a practical way. Nothing is dictated by the Constitution in relation to this but, at the same time, by the time an election is held after a redistribution it may well be found that the precise numbers upon which electorates have been divided up have changed because of population changes.

I think it is fair to say that the Labor Party members have tended to adopt a rotten borough approach to this, particularly in their attacks in this Parliament. All I want to say about that is this: If they go to the figures for the redistribution of federal electorates they will find a fairly good record. They can go back through the figures. They have been quoted already and I do not want to quote them again. But they do show a reasonable adherence to the 10 per cent principle. It is only in more recent years, with a more volatile moving population, that the distribution gets out of kilter more quickly. We need to get away from this rotten borough idea in terms of the Commonwealth redistribution. The redistribution system has been reasonably fair. Even when one takes the figures in relation to the totality of numbers and votes they tend to reflect that the party that has the greatest number of votes usually is in power.

What are important in all this are the criteria that are laid down in section 19 of the Commonwealth Electoral Act. This Bill- the Commonwealth Electoral Amendment Bill- purports to introduce another criterion in relation to large divisions and small divisions. Quite clearly, it is fair enough to take into account the size of electorates. If I might suggest, it is fair enough to require that the electorate of Gwydir, for instance, which covers more than 5000 square kilometres, should not have more electors to service than Werriwa. Of course, that is what clause 7 of this Bill would achieve. I have given the figures for those 2 electorates under the Labor Party's attempted redistribution in 1975. This clause is intended to deal with that situation. It is an eminently fair clause. The honourable member for Burke (Mr Keith Johnson) said that the role of a member of Parliament was to come here and to talk, but also to speak to his electors. I suggest to honourable members that it is fair enough that factors such as this should be taken into account in determining the numbers in and size of electorates. That is what the amendment to section 1 9 is aimed at doing.

Something was said about the 7-year period provision that this Bill seeks to include in section 25 of the Act. We are all familiar with the arguments concerning this. But just to make it clear, despite the fact that the Executive can call for an earner redistribution if it wishes, the amendment is aimed to give stability and to make sure that people grow accustomed to their member and get to know him; that they are not confused by change at every election. This is highly desirable. We have had suggestions from honourable members that in the country there is a much more personal relationship between members and their constituents. But constituents in city electorates get to know their members also. It is a good idea for that situation not to be disturbed too often. Therefore, this is not an attempt to entrench provisions or politicians, or to require that a distribution take place no earlier than within 7 years. It is a method of ensuring adequate, proper and reasonable electoral representation. Of course, if the Executive sees some problem or if some event occurs that requires redistribution, it can have one at an earlier stage.

The other provision that has been referred to is the addition of sections 25a to the Act, which relates to elections at large. Senator Withers, the Minister for Administrative Services in the other place, indicated that he was concerned about this matter and thought that the Electoral Act ought to contain specific provisions in order to deal with elections at large. He indicated to the Senate that he was working on this matter. After all, the latest decision in the High Court was given only a fortnight ago. In due course the Minister will bring forward measures to govern the provisions of proposed new section 25a, relating to elections at large. That is to deal with the unlikely event of such an election occurring. If it does occur in the meantime, it would seem that under the Constitution such an election would have to be held in a way which added up to the description 'members directly chosen by the people of the Commonwealth', as contained in section 24 of the Act. No doubt that election, which could be subject to State laws which might to some extent be applicable, would be prescribed by the Executive. But this would not be desirable in this area. One can readily conceive of the method being otherwise than is provided for in legislation. Section 25a, one hopes, will be supplemented in the near future by provisions which will govern an election at large. Of course, the thought of an election at large is not something which fills any of us with any joy. It is a remote possibility that one would be held, but it is something that the Minister for Administrative Services has well in mind. One hopes that it will be dealt with in the near future.

Question put:

That the Bill be now read a second time.

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