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Wednesday, 22 August 1984
Page: 167


Senator MISSEN(6.00) —I rise to speak to the two referenda proposals in the Constitutional Alteration (Simultaneous Elections) Bill 1984 and the Constitution Alteration (Interchange of Powers) Bill 1984. Last night and today there has been considerable debate on this legislation. It is interesting to note the amount of interest in and support that the Government is giving to these proposals. It is clear from the list of honourable senators who are to speak in the debate, that no Labor Party senators will speak, apart from the Attorney-General (Senator Gareth Evans) who will valiantly reply at the end of the debate. Unless, of course, in the meantime, as a result of my words, a Labor senator is dragooned into speaking, no Labor senator will support him. One feels almost sad about the Attorney-General. On looking across the chamber during Senator Mason's interesting speech, one would have thought that there would be some interest by the Labor Party in this subject. The Attorney-General now has an adviser with him, but he did not even have that person before.

Apart from the Attorney-General, there is not one Labor senator sitting in the chamber and taking any interest in the debate, and the position was almost the same last night. Practically no interest was shown by Labor senators. That action is indicative of the fact that this is just one of the procedures through which they are going. This is the last stage of a betrayal of constitutional change and decline of interest in the subject. I am afraid that the present Government must take responsibility for that decline. No senator on this side of the chamber, and even some senators such as myself who have encouraged and supported the Government's earlier initiatives in this regard and who have thought that those initiatives should have multi-party support-and they had that support-could now do other than feel that there is no reason why we should bother to follow the Government down this burrow. As I shall show, the Government has had three choices for proper constitutional change, and this is the third and worst and weakest. What the Government has done with regard to constitutional change is shameful. The result has been a complete loss of interest by the community in constitutional change.

Some years ago, Senator Gareth Evans, Senator Chipp and I were appointed patrons of an organisation called the Committee for Constitutional Change. The idea was to promote--


Senator Gareth Evans —It was the Campaign for Constitutional Change.


Senator MISSEN —That is right.


Senator Gareth Evans —We were joint patrons. Do not let us forget that.


Senator MISSEN —One can be correct about the title, but the Attorney-General and Labor Party members have probably lost all interest in the organisation's operations, and that is the problem. The problem is that, because of the twists and turns which the Hawke Government has performed with constitutional change and because of its betrayal of election undertakings, the Campaign for Constitutional Change has lost its membership. Interest in it has been lost, and its promoters have had to put the organisation into what could be called receivership. It is in receivership now. We are patrons of nothing. Unfortunately, the blame must lie largely with the Attorney-General and, more particularly, with his Party because of what they have done to constitutional change in the last year and a half.

I remind the Attorney-General, as have other senators, that the Government's first choice was a fixed term parliament proposition. Frankly, I think that is the only real solution to the problems of quick elections and the opportunity that Prime Ministers have to decide the date of elections. I am sorry that some of my colleagues were not so supportive of that idea when it was proposed last year. A number of Opposition senators were keen to see a fixed term proposition adopted so that Prime Ministers would not have the right to go before the people ahead of time and continue the cycle of elections every two years or so, with all the consequent effect of interrupting business and causing a lack of confidence in business and in the community. That interruption means that Parliament fails to get on with its work and to achieve properly. The decline in the Parliaments committee operations has been noticeable in the past year or two . Parliaments do not last long enough for people to become properly involved.

The idea of fixed terms for parliament, which has long since been abandoned by the Labor Party, appealed to the Attorney-General when he was in Opposition. He introduced Bills to bring in such a change. Senator Gareth Evans's second reading speech in 1981 on his Constitution Alteration (Fixed Term Parliaments) Bill concluded:

. . . I remain reasonably confident that when its implications are fully absorbed and understood-and even more importantly when the alternatives are considered-a new fixed term parliament system will be seen by most Members and Senators as the only presently realistic solution to the institutional problems inherent in our present Constitution.


Senator Martin —Who said that?


Senator MISSEN —That was said by Senator Gareth Evans, then the shadow Attorney- General, but when he emerged from the shadows and became the Attorney-General that belief fell away.


Senator Gareth Evans —I still believe that. You can put that in Hansard if you like.


Senator MISSEN —I have here the Attorney's second reading speech. It is not the Hansard copy, but I do not think that it is wrong. My copy was presented to me by the Senate Records people, and I believe that they do so competently. I draw attention to the fact that the present Attorney-General said: 'When the alternatives are considered'. The alternatives are, of course, the things with which we are left today. The honourable senator said that the only presently realistic solution was fixed terms. He was right, of course. Unfortunately, he has been rolled many times by his Cabinet and hard-nut friends in the New South Wales Right. I feel very sorry for him in the situation in which he finds himself. But if he wants to stay in office, I am afraid that he must put up with the humiliations involved.

Senator Gareth Evans agreed to certain proposed amendments to his legislation. The Senate will recall that Senator David Hamer, I and others comprised the original propounders of the fixed term scheme. We insisted on alterations to the Bill because it was not good enough. Senator Gareth Evans agreed to amendments. As he said:

I hope that the proposed amendments will now ensure that the Bill receives clear majority support in the Senate. Even more importantly, I hope that they will persuade the Government of the Labor Party's genuine desire to find a compromise, consensus solution to what is obviously a crucially important constitutional problem, and will encourage the Government--

that is, the Fraser Government--

to reconsider its general attitude to the proposed constitutional amendment accordingly.

I do not know the feelings of honourable senators, but I do not think that today there is much belief in the genuine desire of the Labor Party in these matters. I should give other quotations, but I do not want to be tedious about that.

The fact is that during the election campaign the Labor Party pledged that there would be no talk about simultaneous elections and the matters that we had debated in previous years-no, the talk was about fixed terms. When the then Prime Minister, Malcolm Fraser, went for a hurried election and used the powers available to him under the Constitution, the Labor Party screamed blue murder and said that that was a terrible thing for him to do. Labor Party members were, of course, glad when his plan failed, but they regarded it as monstrous that Malcolm Fraser should go to an election long before time. The Labor Party undertook-and it did so soon after gaining office-to bring in a fixed term proposal. That was its solution to our constitutional problems and the problems of quick parliaments and elections to suit the convenience of Prime Ministers.

The Labor Government brought in a Bill, and it was not long before some members of the Labor Party decided: 'Perhaps, this is not a good idea. Perhaps, we want to reserve to the Prime Minister the right to pick a nice time after a soft cushy Budget, which will confuse the people and make them think that they are getting a tax reduction when in fact they are losing much more money than they are getting back from the Budget. While they are in that state of delusion, we can have an early election'. So, the Labor Party pulled out the provision for fixed term parliaments. That proposal had considerable support from those on this side of the chamber and, according to gallup polls, had very strong support throughout the country. However, it was not satisfactory to those members of the right wing of the Labor Party, the people under whose control Senator Gareth Evans is and on whom he must depend if he is to go off to the House of Representatives, which he now threatens to do. That might be a difficult jump, and he obviously must have the support of the people who are pragmatists in the Parliament, not men of principle who said: 'No fixed term; out it goes'.

So the first choice was gone. Later, a second choice was put forward. This time , five different referenda proposals were advanced. They were not as good because they had some difficulties about them. Senator Mason pointed out some of the problems that can occur with simultaneous elections. There is a possibility that the Senate might lose some of its control. I do not actually have the same fears as Senator Mason. I think it unlikely that governments will clean out the Senate in that way and, by calling very early elections, take the risk that overtook Malcolm Fraser-the risk of losing government altogether.

One of those proposals was for simultaneous elections along the lines of what is now proposed and another was for four-year parliaments. Together those two proposals appeared to have some importance. It appeared that we would have longer parliaments and perhaps reasonable terms. We might not have had terms of more than three years, because governments could still go to the people early, but the probability was that we would have had something more like a decent term of parliament. There were three other important proposals, including one concerning advisory opinions. All those proposals had the official support of the Liberal and National Parties. There were people in some of the peripheral States who dissented, I readily agree, but those recommendations had the support of the party organisations and of the parliamentary parties. Some of us thought that they were not the best choice, that they were the No. 2 choice. Nonetheless , they certainly would have meant a considerable improvement on the current situation. Of course, a little later they also were withdrawn. There was trouble over the financing. The Government wanted to finance those referenda with public funds and, because of a problem in the Senate, it took the opportunity of removing them altogether.

Yet now the Government has come forward with a third proposition. It proposes that there will not be a separate vote by the people dealing with a referendum by itself. That would have happened in February of this year had the Government gone ahead with its earlier proposals. Those proposals, I am afraid, would ultimately have lost for Mr Bob Hawke the opportunity of having the early election which he wants in about December; consequently, they went by the board. It was decided to stand them over and to have them jumbled up in an election campaign where they might not be seen or debated properly and where, the Government will find, opposition will be more intense, which is one of the substantial reasons that my colleagues have decided to oppose them. Of course, in an election campaign attitudes to referendum proposals are not dispassionate. They become linked with the party political struggle. It is a very unsatisfactory time to deal with those matters. The Government has decided to rush these proposals forward now into this election for the purpose, I suppose, of getting them through without too much discussion.

One very interesting thing is that the referenda proposals now before us are not the five that were thought last year to be excellent. The Government has picked and chosen among them. It has decided: 'Yes, we will have simultaneous elections. No, we will not have four-year parliaments'-that has gone. It has decided: 'Yes, we will have the proposal for the interchange of powers'. I will say something more about that later. That in my opinion has always been quite a good proposal. The Government has decided: 'No, we will not have advisory opinions or the last proposal, to remove some outmoded and surplus provisions from the Constitution'. Who chooses? The Government chooses. The people did not choose. No, the Government decided that these are the two proposals it will put to a referendum. One interesting thing about this is that, while the Labor Party got into office by pledging among other things to have fixed terms, lo and behold what has now been translated into its constitutional and legal policy? I will read points 2 and 3 on constitutional reform.

The support of the Australian people will be sought for amendments to the Australian Constitution--

. . .

2 To provide for four-year terms for the House of Representatives.

That has pride of place. To continue:

3 To provide for the simultaneous elections of the Senate and the House of Representatives.

We are going to No. 3; we are not going to put up No. 2 and we do not even choose the order--


Senator Harradine —Not yet.


Senator MISSEN —Not yet. The Government might do so later, but it makes this choice. The public finds that it elected a government on a certain platform of policies and that now there is a new one. I must say that it is understandable that there is a lot of cynicism about this. It is not surprising that most of my colleagues now think that they cannot support such proposals in view of the way it is proposed that they be handled and in view of the way in which the interests of the Government party only are to be served. This string of changes reminds me very much of the happenings in George Orwell's Animal Farm. I had the privilege while in London of seeing the magnificent production of the play based on that book. This situation reminds of the way in which the animals who quite innocently took over control of the farm from the farmers found that commandments were laid down, like Labor Party commandments. The first was: ' Whatever goes upon two legs is an enemy'. The second was 'Whatever goes upon four legs or has wings is a friend'. Only a few months later they found that the sheep who were actually bleating away--


Senator Harradine —The poor old chooks.


Senator MISSEN —The chooks did not do very well either, but the sheep, who of course were loyal supporters of the Government of the farm, were bleating: 'Four legs good, two legs bad'. But quite soon after this another doctrine is sown and we find the sheep saying: 'Four legs good, two legs better'. So in this and other areas one finds that one can reverse oneself.


Senator Mason —Some animals were more equal than others.


Senator MISSEN —I thank the honourable senator for reminding me of that. They finally wiped out all the rules of the farm and had just one saying: 'All animals are equal but some animals are more equal than others'. Of course, in this Parliament some members of parliament are more equal than others. All that consensus rubbish which we were told was going to happen but which does not happen as far as members opposite are concerned and all those lovely promises Bob Hawke made on the night he was made king have been forgotten. I hope that the people will remember them. He was going to bring all members of parliament into these things. Of course, we have to wait to hear what comes from the rich man's table, from the rich government's table, and what we are then expected to follow.

The fact is that the Labor Party has dis- honoured its electoral promises and its undertakings on constitutional reform, which I regard as disgraceful. It has done so for purely pragmatic reasons and the Attorney-General has had to follow his right wing masters in going through these humiliating changes all the time. Of course, I campaigned in 1977 in favour of the then Government's proposal for simultaneous elections and for three other referendums. I remind the senate that that was a high point in successful constitutional change. Three of the proposals were adopted. The fourth, for simultaneous elections, received 62 per cent of the vote throughout Australia, but three of the peripheral States did not give it a majority: It received 48.5 per cent of the vote in one, 47 per cent in another and was badly defeated in Tasmania, of course.


Senator Harradine —Less populous, not peripheral.


Senator MISSEN —Peripheral geographically and also, for the honourable senator's benefit, I would say 'less populous' not 'less popular'. It is a pity that we did not take that chance to get on with the spirit of co-operation in constitutional matters. Of course, I accompanied the Rt Hon. Malcolm Fraser up and down the country through most of that campaign and I expressed the view then that the simultaneous election proposal, although not as good as we might have, was quite a sound proposal. Of course, four-year terms do not afford the Parliament the same protection. Nonetheless, I think on balance they would be better than the present position. But that proposal was the third choice, and the worst of the three choices is now to be put before the people. I could not feel very keen to campaign for something that is so much of a political choice.

The other proposal, that for interchange of powers, has always been supported I think by people on this side of the chamber. Because it is now proposed to force it through as an election matter, they have changed their minds. I must say that this idea to give the States and the Commonwealth power to make flexible arrangements to interchange powers with each other, and to do so temporarily, takes away the fears of the States that, once they give away powers, they could not do so temporarily or get them back. That proposal, which was formulated by the Constitution Convention and supported by all parties at that time, still has great merit.

If these Bills get through this chamber-it is up to the Government to see whether it can manage that-and the proposals are put to the people at the election, we shall have to make our choices on the matters. I will probably vote for them, certainly with some reluctance on one. The interchange of powers proposal is a highly desirable one because the family law of this country has been prejudiced and held back for years because of the States' fears about transferring rights over ex-nuptial children and over property. So there is a fragmented jurisdiction. There are, therefore, quite important reasons why this Bill should be carried. There are important reasons why the Government should not be prejudicing it by bringing it forward during an election campaign when all the other things which are raised will mean that it will receive a lack of attention.

One could not think of campaigning for these proposals in this way. The Government has done a very grave disservice to the Australian people and to the cause of constitutional reform by the way in which it has handled these matters since it has been in office. It has betrayed its undertakings to the electorate, which it made before it was elected. It deserves the utmost condemnation of the people for the way in which these matters have been handled.