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Wednesday, 13 June 1984
Page: 2903

Senator MACKLIN(11.53) —The Cocos (Keeling) Islands Self- Determination (Consequential Amendments) Bill 1984 seeks to give effect to the act of determination made by the people of the Cocos (Keeling) Islands to enable them to vote in Australian elections now that they are Australian citizens. It seems to the Australian Democrats that really the proposition is relatively simple. An election will be held shortly-at least before the middle of next year under the Constitution-and therefore it is necessary that provision be made now to enable those citizens to participate in the electoral process. The choices as to which Federal electorate these electors will belong to really come down to the Australian Capital Territory or the Northern Territory. The Government has chosen the Northern Territory for reasons set out in the second reading speech of the Minister for Industry and Commerce (Senator Button). There has been a lot of discussion about whether it might be more appropriate for the Cocos Islands to be attached to Western Australia. Certainly, in terms of the criteria which are contained in the Commonwealth electoral legislation, there would seem to be strong arguments to that effect. However, it is not possible for that to occur at this time. I refer the Senate to a report of the Joint Committee on Foreign Affairs and Defence Sub-committee on Territorial Boundaries of 6 December 1976. That Sub-committee was asked to look at the changes to the existing boundaries between Queensland and Papua New Guinea. The Committee rehearsed the arguments about how boundaries of States might be changed. In particular, it referred to section 123 of the Constitution, which states:

The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected.

From a reading of that section of the Constitution it would seem that an inclusion of the Cocos (Keeling) Islands in Western Australia would not be possible. The Committee rehearsed other types of legal argument including an opinion of the Attorney-General of 1906, the Hon. Isaac Isaacs, expressing the view that it was within the power of the Commonwealth to so change boundaries. He said:

Covering Clause 8 cannot in my opinion be construed as referring solely to such extraordinary alterations.

I therefore think that the King . . . in Council has the power with the consent of the Parliament of the Commonwealth and without reference to the electors of Queensland, to alter the boundaries of the Commonwealth and incidentally those of Queensland, in the way proposed.

That judgment, however, seems to stand alone. When one goes, as the Sub- committee has done, through various other opinions that have been given, it seems fairly definite that from that point on almost all people who have been called upon to comment on this matter in an authoritative way have suggested that section 123 sets limits to the Commonwealth power in that regard. If one thinks for a minute about that, it certainly seems to be a doctrine which one ought to uphold.

I am quite sure that the members of the Liberal Party who have been very vocal about States and the rights of States would be very upset if the Commonwealth arrogated to itself powers to increase or diminish the territories of States simply by an Act of this Parliament. I think it can be and is fairly concluded that such a power does not lie with the Commonwealth and would have to be exercised in concert with State governments. If that is the case, I believe that one way out of the problem that has been posed about the seeming desire on the part of many people on the Cocos Islands to be associated with Western Australia might very well be to follow, somewhat, the line that has been put forward in Senator Durack's amendment to the motion for the second reading and, first of all, ascertain the wishes of the Australian citizens in the Cocos Islands. I am not at all sure that a State supreme court judge is the best person to do that. However, I suppose such a person would be capable of doing it. I think it could be assigned to any person of stature, standing and independence. Indeed, it came to my mind that a person such as ex-Senator Neville Bonner would be well equipped to undertake such a task as a certain amount of political understanding would need to be associated with it. But if such an investigation took place and the desire of the people in the Cocos Islands was that they be attached to Western Australia, it would obviously necessitate the holding of a referendum in Western Australia at some later stage to enable that process to take place. However, that cannot be done prior to the next election.

I think that the course of action that the Government is taking is the only course of action which is currently available to enfranchise the citizens of the Cocos Islands in the forthcoming elections. Whether or not they ought to be associated with the Northern Territory or the Australian Capital Territory, of course, is another matter. I expect, in terms of travel, that one could argue that there is not much in it either way. Arguments could be put forward that the member for the Northern Territory already has an enormous area to cover. But if one thinks of the person who would be likely to represent the Cocos Islands if a successful referendum were held and they were incorporated in Western Australia, it would fairly obviously be the member for Kalgoorlie, who represents a larger electorate than that represented by the member for the Northern Territory; indeed, I understand it is the largest electorate in the world. So I do not think we can push that argument against the Cocos Islands being included in the Northern Territory electorate.

I do not think there is much in it either way. We certainly do not feel that there is a great deal of relationship between either of those arguments, except possibly in terms of geographical proximity. I suppose the Cocos Islands are closer to the Northern Territory, as is Christmas Island, which I presume will suffer the same type of integration into the Northern Territory in the Budget session. It would seem, however, fair and reasonable, if the member for the Northern Territory is to be given this additional responsibility to look at the type of operation that one would need to go through to be able to get to the Cocos Islands. From Darwin one would have to fly to Perth and then out to the Islands. I understand that the plane schedules are such that one would have to wait a week to do the return trip. That may be very nice. Many members may devoutly wish to be able to spend a week there and not be able to be got at by other people. I wonder whether in that regard additional benefits by way of support ought not be made available to the member for the Northern Territory to in any way enable that person to--

Senator Kilgariff —Will this include Territory senators?

Senator MACKLIN —Territory senators will have a responsibility as well. It would mean that the Territory senators would also need additional support to enable them in any way to represent the people adequately. That additional support ought to be forthcoming to the senators and the member for the Northern Territory to enable them to undertake their task adequately. I hope that the Government will take on board the comments that have been made by Senator Durack and me and will not see that this legislation necessarily must be the cutting off point for consultation with the Cocos Islands people about their desires as to where they may finally fit within the structure of the electoral process in Australia. I believe that if the Government expresses itself in that way, further consultations will be able to take place and if necessary a referendum may be held at a later stage. However, I indicate that the Australian Democrats will be happy to support the amendment moved by Senator Durack to the motion for the second reading of the Bill. It does not delay the Bill in any way. I believe that as an expression of opinion it expresses the types of views that we have for further consultation. However, as I have already said, I would not necessarily want to be held to the proposition that a State Supreme Court judge should ascertain the wishes of the people.

Senator Durack, although he did not address the matter in his speech during the second reading debate, and I am not sure whether he intends to proceed in this way, had circulated for the Committee stage some amendments. I simply indicate now so that we may speed up proceedings that the Democrats do not propose to support any amendments in Committee; rather, we will support the Bill and hope that at a later stage the Government will review this in fairness to the people on the Cocos (Keeling) Islands.