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Tuesday, 18 October 1983
Page: 1846


Mr LIONEL BOWEN (Minister for Trade)(5.40) —I move:

That the Bill be now read a second time.

The Australian Constitution is now 82 years old. One of the tasks it performed in 1901 was to unite six British colonies into a federal commonwealth and to lay the basis for full national sovereignty. In so doing it was necessary for it to include a large number of provisions dealing with transitional matters which ceased to have any significance five or 10 years after Federation and should now be removed. It was also necessary for the Constitution to make interim provisions for a number of other matters pending the enactment of Federal legislation. Provisions of this kind are scattered throughout the Constitution and can be readily identified by the draftsman's tag 'until the parliament otherwise provides'. To some extent these provisions are a source of Commonwealth power and care needs to be taken in identifying those provisions which can safely be regarded as 'outmoded' or 'spent'.

A third category covers those provisions which, having regard to Australia's status as a fully sovereign nation state, are no longer appropriate since they derive from, and reflect, an earlier colonial way of thinking. The removal of outmoded provisions of these kinds from our Constitution will amount to a pruning of 'dead wood' so that the document will be uncluttered, or at least less cluttered, by irrelevancies of a bygone era. It will not, however, make any change of substance to the Constitution and is therefore an exercise which can only be justified when other proposals are also to go to referendum.

An attempt to identify all the constitutional provisions which could safely be removed so as to modernise the text of the Constitution without making changes of substance was carried out by a bipartisan working party of the Australian Constitutional Convention in 1974 convened by Mr Terry McRae, the present Speaker of the House of Assembly of South Australia and Chairman of the recent Adelaide Convention. Following the completion of that working party's report most of its recommendations were endorsed by the then Standing Committee C of the Convention and that Committee's recommendations were unanimously approved by the Hobart Convention in 1976. There the matter rested until the recent Adelaide Convention unanimously approved a further proposal for the incorporation of particular 'practices' into the Constitution. That resolution also involved the removal of some outmoded provisions.

The Bill largely reflects the Hobart resolution of the Convention and incorporates the recommendations made by the Adelaide Convention. Two further matters are included. The first is the removal of the transitional provisions which were inserted in 1977. They related to Senate casual vacancies at the commencement of that constitutional alteration and no longer have any operation. The second is the repeal of section 89 which provided for the distribution of the 'federal surplus' before the uniform tariff was imposed. That provision is clearly of no further relevance and ought to be repealed. It appears to have been inadvertently left out of the Hobart resolution.

Some recommendations contained in the Hobart resolution have not been incorporated in the Bill. In most cases this is for technical reasons. For example, changes to the 'covering clauses' of the Constitution raise a number of esoteric issues and it may be more appropriate to regard the 'covering clauses', which are not part of the Constitution itself but form the first eight sections of the British Act which contains the Constitution, as simply part of the historical context of the Constitution. Some other recommendations from the Hobart resolution have been omitted because they would themselves involve further complicating the text of the Constitution by writing in lengthy savings clauses.

Without going into excessive detail of the various changes in the Bill it may assist the House if I briefly indicate the provisions in each category which it is proposed to remove. The transitional provisions are:

The last paragraph of section 5 dealing with the summoning of the first Parliament;

the last four paragraphs of section 15 dealing with Senate casual vacancies;

section 26 which deals with representation in the first Parliament;

the first words of the last paragraph of section 64 referring to the first general election;

the second paragraph of section 83 which deals with expenditure in the first month of the life of the Commonwealth;

the last paragraph of section 84 dealing with the rights of State public servants transferred to the Commonwealth at its establishment;

that part of section 85 which provides for the contingency that certain property transferred from the States at Federation may be returned to the States at some stage-among the property transferred at Federation were some post offices and Customs houses; if it were proposed to transfer such property to a State this could be done independently of section 85;

section 86, by virtue of which the collection and control of duties of customs and of excise and control of the payment of bounties passed to the Commonwealth;

section 89 which provided for the distribution of surplus revenue to the States until the imposition of the uniform tariff;

the savings provision in section 90 concerning grants or agreements for bounties made before 30 June 1898;

the second paragraph of section 92 which provided for duties to be imposed on the interstate movement of goods which had been imported into a State before the imposition of the uniform tariff;

section 95 which made special provision for Western Australia during the first five years after Federation by enabling that State to impose Customs duties during that period which were to be collected by the Commonwealth; and

the last paragraph of section 125 which provides that the Parliament shall sit at Melbourne until it meets at the seat of government.

In the second category of interim provisions employing the formula 'until the parliament otherwise provides' are:

section 87 which provides for the distribution of three-quarters of the Commonwealth revenue from customs and excise to the States for the first 10 years after Federation and thereafter 'until the parliament otherwise provides'.

this clause became known as the 'Braddon Clause' or the 'Braddon Blot' and was a compromise typical of the nineteenth century concern with the allocation of Federal revenue. It no longer has any practical application. The Commonwealth abandoned the formula in 1910 and instituted a States grants scheme in its place .

section 93 which provided for the payment to the States of surplus revenue during the first five years after the imposition of the uniform tariff 'and thereafter until the Parliament otherwise provides' on a similar basis to that provided for in section 89. The provision ceased to have any practical effect in 1907.

The final category of provisions-those which have been unanimously accepted by the Convention as no longer appropriate to Australia's status as a sovereign nation-are:

the reference in section 58 to the Governor-General's power to reserve Bills for the Queen's assent;

section 59 which empowers the Queen to disallow any Commonwealth law within one year of the Governor-General's assent;

section 60 which concerns signfication of the Queen's assent to reserved Bills; and

the reference in section 74 to the reservation of Bills limiting appeals to the Privy Council.

The alterations of sections 58 and 74 and the repeal of section 59 were included in the Adelaide resolution. The repeal of section 59 was also included in the Hobart resolution. As originally drafted, the Bill included a clause delaying the commencement of the repeal of section 59 until 1 January 1984. That commencement date was chosen because the last of the stock issued under the Colonial Stock Act 1900 of the United Kingdom-to which the existence of section 59 has in the past been considered relevant-matures on 1 December 1983. It is no longer necessary to include such a commencement provision and the clause has been deleted by the Senate.

A provision which does not fit neatly into any of these categories but which nevertheless is clearly outmoded is section 25. That provision excludes from the census the persons of any race who may be disqualified from voting by a State law. Its proposed repeal was unanimously endorsed by the Hobart Convention. The unanimous endorsement of these particular resolutions provides ground for hope that the removal of all the outmoded provisions dealt with in the Bill will represent a start on the task of modernising of Constitution in a systematic way . I commend the Bill to the House.

Debate (on motion by Mr Spender) adjourned.