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Thursday, 7 June 1984
Page: 2771


Senator HARRADINE(3.58) —In the same spirit, I suggest to the Committee that if we adopt the Australian Democrats' amendment without further amendment we may be adopting a proposal which has very grave dangers for our democracy. I will explain why. Democracy in Australia depends to some extent upon the public perception of the role of the Electoral Commission, the role of the electoral authorities. One thing can be said about that and that is that the public believes that the electoral authorities in Australia are people of integrity, efficiency, and fairness and are people who are above partisan politics. The people believe that. In my view this added function-I will prove that it is a function, added to what is in clause 7-will undermine that opinion which is widespread and almost unanimous amongst the people of Australia.

What the Government is asking the Electoral Commission to do by proposal (b) is to provide other information; that is, information other than what can be provided by the proponents for or against the referendum. Of course the 'other' refers to the preceding language in the Australian Democrats' amendment. It certainly will be other than what is contained in proposal (a). It could be that it is similar to the information contained in only one of the official arguments for or against the proposal. I give the Committee an example, bearing in mind what the Attorney-General has said. He asked why the Electoral Commission cannot give information such as advice based on legal precedent or predictive viewpoint . Is it suggested, for example, that the Democrats' amendment (b) would enable the Electoral Commission to provide information to the public about the Constitutional Alteration (Advisory Jurisdiction of High Court) proposal? I think a reading of the Democrats' amendment would enable the Electoral Commission to give advice to the people about the advisory jurisdiction proposal . What qualifications do the Australian Electoral Office or the Electoral Commission have to provide the people of Australia with an analysis of the advisory jurisdiction referendum proposal? Indeed, if we look at the scheme of the Australian Constitution, is it not very dangerous for the Electoral Commission to be involved in giving such advice? I say that because of the very clear and distinct divisions of power in the Australian Constitution between the Parliament, the Executive and the judiciary. Take that advisory jurisdiction referendum proposal as an example. As I see it, the Electoral Commission really has functions to do with the election of a parliament, the election of a government. It has nothing whatsoever to do with the judiciary. For example, what if it were to give information about the advisory jurisdiction proposal? The Attorney is shaking his head. Is it suggested that it could not do that?


Senator Gareth Evans —Its function is to promote public awareness of electoral matters, and electoral matters is defined to include referendums. There is your answer, in the text of the statute.


Senator HARRADINE —In other words, the Attorney is saying that it could in fact give information to the people about the referendum proposal relating to the advisory jurisdiction of the High Court of Australia?


Senator Gareth Evans —About the effect of the proposal, yes.


Senator HARRADINE —That is right; the effect of the proposal.


Senator Hill —Arguments for and against.


Senator HARRADINE —Exactly. That is the effect of the proposal. What about the High Court judges? For example, would the Electoral Commission quote what Sir Harry Gibbs, the Chief Justice of the High Court, said?


Senator Gareth Evans —That would be a matter for those propounding the No case, presumably.


Senator HARRADINE —Those propounding the No case, but not the Electoral Commission?


Senator Gareth Evans —Or those propounding the Yes case if they saw some advantage in it.


Senator HARRADINE —Yes, but the Attorney has said the Electoral Commission could give information as to the effect of a particular referendum proposal. One of the major effects of that advisory jurisdiction referendum proposal would be to overload the court. In that situation, would the Electoral Office quote Sir Harry Gibbs as saying that he and his fellow judges are against it? And if it did not, surely the people on the No side of the case would cry foul. I would certainly cry foul about the Electoral Commission being biased in favour of the Yes case if it did not include that comment. Can the Committee see what I am getting at? This is a very dangerous situation indeed. Section 7A (1) of the Commonwealth Electoral Legislation Amendment Bill says, quite clearly-the Attorney read it out:

The functions of the Commission are-

. . . .

(c) To promote public awareness of electoral and Parliamentary matters by means of the conduct of education and information programs and by other means;

I suggest that the referendum question relating to advisory jurisdiction has nothing to do with the Parliament.


Senator Macklin —No, it is included in the definitions, in section 6, what electoral matters means.


Senator Gareth Evans —So an electoral matter is a referendum.


Senator Macklin —It says referendum, specifically; it is part of the definition.


Senator HARRADINE —The honourable senators are talking one language and I am talking another.


Senator Gareth Evans —We are talking English. What is yours?


Senator HARRADINE —I am trying to carry on this debate in the spirit in which the Attorney spoke. I am saying that this could be very dangerous to democracy.


Senator Gareth Evans —It would if it were being done by a body other than an impartial body, on your premises.


Senator HARRADINE —I understand what the Attorney is talking about-its role so far as referenda are concerned-but we did not envisage the Commission giving information to the public about the nature of referenda proposals. I did not vote for that on that basis but that is what the Government is trying to impose. This is the obligation it is trying to impose on the Electoral Commission, and the Electoral Commission will be unable adequately to discharge that obligation without somebody calling foul. Under those circumstances I believe that it will undermine the public perception of the Electoral Commission, or the electoral authorities, as being fair and impartial.

I feel that Senator Hill's amendment does go some way to tightening up the amendment put forward by the Democrats. Passing the Democrats' proposal as it is will pave the way for people at the time to get up legitimately and cry foul about what the Electoral Commission might or might not say. People will inevitably do that, and I believe that is not a good thing for democracy. I hope that this Senate does give proper consideration to that viewpoint because, if anything, we do want to see the maintenance of public confidence and the confidence of all politicians in the integrity of the Electoral Commission.