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Friday, 24 August 1984
Page: 334


Senator DURACK(9.54) —Yesterday when I moved my first amendment, which was fortunately carried by the Senate, to change the short title of the Bill from Constitution Alteration (Simultaneous Elections) Bill to Constitution Alteration (Terms of Senators) Bill, I referred to the second amendment standing in my name, which would have caused the long title to read:

An Act to allow the Prime Minister to shorten the terms of Senators so that he may call elections for the House of Representatives and half the Senate whenever he so desires.

I believe that is the whole purpose and effect of this legislation, but it has been put to me rather vigorously from some quarters which I will not name that that is rather more a political statement than a desirable statutory provision.


Senator Crichton-Browne —Who would say that?


Senator DURACK —I do not want to disclose all the advisers I have in my armoury. In one sense it may not be strictly true that this proposal will shorten the terms of senators, although overwhelmingly it will have that effect. But we could have the situation of two Houses of Representatives in succession running over their three-year terms. That seems to be very unlikely; it does not happen often. But it does happen and it could happen. As a result of this proposal. some senators might get slightly longer than a six-year term. Strictly speaking this provision may not shorten the term but I do not resile from that as a political statement because by and large it will have the effect of shortening the terms of senators. We know the proclivity of Prime Ministers to call early elections. We have a most glaring, patent and cynical example of that at present . As soon as a favourable wind blows for a government a Prime Minister wants to have an election. The power that will be given if this constitutional provision is passed by the electorate will I think inevitably mean that because the term of the House of Representatives is a maximum of three years, although over the last 30 years the average has been 2.4 to 2.5 years, the average term for senators will be something like less than five years. If there is a little change the term might be a little longer, but the provision overwhelmingly will shorten the terms of senators. It is a pity that we cannot actually say that in the legislation because that is what will really happen, but I take the point that it would not be appropriate actually to say that in the long title.

There is also an objection to what I proposed because it contains a reference to the Prime Minister. The Australian Democrats have suggested that it would be better to talk about the Governor-General and how he was advised. I agree that that would be more appropriate. I do not concede that it would be an improvement , because I know what I previously proposed is a fact and I know that the Democrats believe it is a fact too. But from a drafting purist's point of view it is better to talk about the Governor-General-in-Council as he is advised and so on. There are some other problems with the long title which I have agreed to and therefore I now propose to move the amendment headed 'Amendment to Title' which has been circulated. I move:

Leave out 'to ensure that Senate elections and House of Representatives elections are always held on the same day, and to adjust the terms of senators accordingly', insert 'to change the terms of senators so that they are no longer of fixed duration and to provide that Senate elections and House of Representatives elections are always held on the same day'.

I do not think even the greatest purist would be able to object to that, because the amendment deals with both aspects of this legislation. Certainly there is a provision for Senate and House of Representatives elections to be held on the same day. That is of some importance because, as the Constitution stands, they do not have to be held on the same day although, as I have already pointed out, there is no reason why they cannot be adjusted to be held on the same day.

Nevertheless, the main purpose of this legislation is to change the terms of senators so that they are no longer fixed terms. The main effect of this legislation would be to restrict the role of senators and the Senate in order that senators may be accommodated to elections held from time to time for the House of Representatives, rather than simultaneous elections being ensured by the House of Representatives accommodating itself to senators' terms. The fundamental and important thing about this proposal is that it would change the fixed terms of senators to terms of no fixed duration. It could be a term of a few months only, or even less I suppose. It would change a six-year term to a term of perhaps a few months. In a period of political instability we could get two House of Representatives elections in a year.

We agreed in previous debate and by our vote on this legislation yesterday to change the words 'simultaneous elections' in the short title of the Bill to read 'terms of senators'. Obviously the previous long title was deficient and I acknowledged that. The Attorney-General (Senator Gareth Evans) does not think I am giving him any acknowledgement these days, but when I spoke on this Bill yesterday I did say that his long title was an improvement on the long title of the Bill we introduced in 1977. The long title now refers to adjusting the terms of senators accordingly. However, that is only an afterthought in his long title . It is to be commended that the Attorney-General had an afterthought, but it is a bit late in the day. I think the significant feature of this legislation should be highlighted in the long title. That is why I have put the relevant words in my amendment, not this anodyne statement about adjusting the terms of senators. That might not convey to people the true effect of this legislation.


Senator Gareth Evans —That is a bit like tendentious.


Senator DURACK —I hope my use of the word is as accurate as the Attorney-General says his use of that word is. The point is that this Bill seeks to change the terms of senators so that they are no longer fixed. I think my words are a neutral way of putting it; it is quite factual. It might have been fairer to have said 'manipulate the terms of senators', but I think I might have met with some trouble from the advisers I have mentioned had I done that. I have settled now for this perfectly accurate statement of what this Bill is all about. I have moved that the long title of the Bill be amended accordingly.


The CHAIRMAN —Before I call the next speaker it might be helpful if I explained to the Committee the rules I will be applying to the question of whether title changes are in order. When considering a proposed amendment to any matter before the Chair the principal consideration is whether it is relevant to that matter. In the case of a proposed amendment to the title of a Bill I believe it is also necessary to judge whether a proposed amendment is properly related to the contents and purposes of the Bill. Whether the title accurately and adequately describes the contents of the Bill is a matter for the Committee to determine. Senator Durack's amendment is clearly in order.