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Friday, 22 February 1985
Page: 85

Senator MISSEN —My question is addressed to the Leader of the Government in the Senate, or alternatively to the Minister representing the Attorney-General. I refer to the legislation passed by the last Parliament, the Representation Act 1983, providing for an increase in the size of both Houses of Parliament and in particular to the provision that enabled the additional members of the House of Representatives to serve from the date of election-1 December 1984-while the 12 additional senators did not take their seats and receive remuneration until the first sitting day of this Parliament. I ask: Firstly, is the Government aware that this discrimination between the two Houses is in direct conflict with the nexus provision, section 24 of the Constitution, which requires the number of representatives chosen to be as nearly as practicable twice the number of senators? Secondly, has the Government taken advice to ascertain whether, in the circumstances, the members of the House of Representatives elected on 1 December 1984 were properly and constitutionally elected and, if so, what advice has the Government received? Thirdly, if there is any doubt as to the validity of the election of members of this Parliament, has the Government considered the introduction of retrospective legislation to backdate the taking of office by new senators to 1 December 1984 in order to avoid a future constitutional challenge and to remove the 'inequitable and anomalous' differentiation, as the Chifley Government did in 1949?

Senator GARETH EVANS —To the extent that the question involves the operation of the Representation Act, it is properly one directed to the Special Minister of State. To the extent, however, that it involves, as it clearly does, questions of constitutional validity and legal interpretation, it is properly directed, I suppose, to the Attorney-General. In both events, I will ensure that a quick response is obtained for the honourable senator. My recollection is that such advice was sought and, in fact, given within the Attorney-General's Department in the context of the preparation of the legislation, questions of that kind having been very much to the forefront of our consideration of how the legislation would operate in the transitional period. However, I will see what information can be made available to the honourable senator as soon as possible, given the obvious interest that not only he but also other senators and senators-elect have in the question he put.

Senator MISSEN —I ask a supplementary question. Will the Minister also let us know whether the provision is different from the legislation of 1949? If so, why is it different in this way and unlikely to be challenged?

Senator GARETH EVANS —I have taken that part of the honourable senator's question on notice also.