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Thursday, 9 May 1985
Page: 1696

Senator GARETH EVANS (Minister for Resources and Energy)(8.45) —One can really be quite brisk in disposing of Senator Rae's Bill or at least in expressing opposition to it. I debated this matter in October 1983, and although I do not normally quote myself, what I said on that occasion puts the matter very succinctly. What I said then is this:

I think the only remotely respectable aspect of this proposal so far as the Government is concerned is that it would require the Senate to go to the polls to face an election in the event that it exercised its Supply-blocking power. However, as to its basic substance, its picking up of the so called Sir Charles Court resolution at the earlier Australian Constitutional Convention makes it completely unacceptable to the Labor Government. That will not be news to any honourable senator. What it does is simply institutionalise the outrage of 1975. So far from discouraging the Senate from exercising the manifestly excessive powers it has to determine not just the content of legislation but the life or death of properly elected governments, those manifestly excessive powers will not only not be curbed in any way by this particular measure but also their exercise will positively be encouraged. There is no question under any circumstances of this measure achieving any support whatsoever from this side of the House. I have no doubt at all that Senator Rae appreciates the fate in store for him, if not here today, then certainly in the other place.

I do not resile from a word of what I said in 1983 as I believe that encapsulates with some precision the merits and demerits of this Bill. In deference to Senator Rae's persistence in again bringing the Bill forward in the way he has and to the grand nature of this occasion, as always when we are debating constitutional matters with the nation agog at every word we utter, let me say a little more about the particular measure before us. Senator Rae's Bill involves an acceptance of two principles which conflict in a quite fundamental way with stable, responsible and efficient government in Australia. These principles are, firstly, that the Senate is entitled as of right to reject or defer supply and, secondly, that when the Senate does so, the popularly elected government of the day, whatever its majority, must promptly go to an election.

For the Senate to be justified in the exercise of these extreme powers it could only be on the basis of one or other of two distinct rationales. The first possible rationale is that the Senate is a fully democratic chamber representing the electorate as a whole, responsible for protecting the interests of the electorate as a whole and for determining the composition of the government of the day. The other rationale which I suppose could found the kinds of claims that Senator Rae is seeking to make is that the Senate is somehow charged with protecting, if not the democratic interests, then some other kind of interest which needs protection and which would otherwise go by default. In a Federal system such as ours, this is usually seen to be that of the States, particularly the less populous ones, whose voice might otherwise be swamped. The difficulty is that neither of these rationales is borne out by the factual situation.

The Senate has never been a democratic chamber in the same way as it is proper to describe the House of Representatives as a democratic chamber or as a people's House. This is basically because of the method of election to the Senate. Democratic though it may be, looked at solely within the confines of any particular State, it entirely loses that character when one looks at the composition of the Senate as a whole. As has been acknowledged on innumerable occasions, the situation is that the value of the vote of each elector in Senate elections varies enormously as between the States, with Victoria and New South Wales, for example, each having more than ten times the population of Tasmania and with the votes accordingly of Tasmanians being worth, for this purpose, ten times as much as those of Victorians or New South Welshmen.

Senator Peter Rae —It is a sort of IQ test.

Senator GARETH EVANS —I do not think even the hubris of Senator Rae, which is much in evidence here tonight could possibly justify that particular distinction on democratic grounds. It has to be on some other ground; of course the other ground is the old chestnut that the Senate, if it does not protect democratic interests, at least it protects some other interests that are worth protecting, that is, the States and the Federal system. Of course, it cannot be established with credibility that the Senate is or ever has been a States House any more than it can be established with credibility that it is a democratic chamber. The Senate is a party House. It acts in accordance with the decisions of the majority party or the parties comprising the majority of the day or the majority on a particular issue.

This fact was most spectacularly and powerfully demonstrated in 1974 and 1975, but it is a recurring fact of our daily existence. It has been throughout the course of this century and we all know it. I hope that in any future edition of Mr Odgers's book one of the examples of the Senate not acting as a States House that creeps its way into print, because it is one of the more spectacular examples I can remember during my tenure here, is the vote in this chamber on the question of the composition and jurisdiction of the National Crime Authority and the method by which the jurisdiction, or the scope of the references, of that Authority would be determined. It will be recalled that an effort on the part of the Labor Government to give a meaningful decision making role to the States was rejected on party lines in this chamber. That was a classic demonstration of the sheer hypocrisy that is talked so often by those who would claim that this House is more sensitive than other organs in the political process to the rights, interests and role of the States.

The simple reality at the end of the day is that to accept that the Senate, which is not a popularly elected representative chamber, should have the power to send the House of Representatives to the people is simply an affront to representative democracy. It is and must remain the right of the House of Representatives to preserve and maintain a properly and democratically elected government of the day. I should say that the Labor Party's approach to these issues is very well known. The proposal of former Prime Minister Gough Whitlam at the 1976 Australian Constitutional Convention in Hobart was that the Constitution ought to be amended so as to remove the power of the Senate to reject, defer or in any other manner block the passage of crucial Supply Bills. That proposal remains the policy of the Australian Labor Party. It is one of the specific planks in our constitutional reform policy. I continue to nurture the hope, unrealistic though it may be, that it will one day assume its place in the Australian Constitution as a proper statement of the subsidiary role of this chamber in the political process. I add by way of parenthesis that I have said on many other occasions that I believe this chamber has a meaningful, positive and constructive role as a House of review and in a number of other respects so far as the political system is concerned, but as a house of destruction it has no place at all in our present political system.

Finally, I will make some quick comments on some points of detail in Senator Rae's speech which I think should not be allowed to go unchallenged. Senator Rae's citing of an opinion by Mr Ewart Smith, formerly of the Attorney-General's Department, in support of the insertion of his proposed new section 53A can be described politely as disingenuous, to say the least. Mr Smith, after commenting that the '1965 Compact', having been followed since 1965, can be regarded as 'firmly establishing a practice that may achieve convention status in the strictest sense as its observance continues', goes on to say quite specifically that in his view it would not be appropriate for inclusion in the text of the Constitution. Senator Rae's citation of the resolution of the Adelaide Constitutional Convention in 1983 is also quite misleading. That resolution simply cannot be regarded as indicating any measure of cross-party support for this proposal. I expressly stated at Adelaide, on behalf of the Government, that the proposal was anathema to the Government. What we were debating on that occasion, of course, was not the substance of the resolution but its drafting form. I had hoped that Senator Rae might have acknowledged that in his speech rather than cheapening what was a perfectly rational debate, alone among others, on that occasion.

Finally, I think it should be said that Senator Rae's expressed personal preference for the joint sitting device in the event of a continuing deadlock after a dissolution over Supply is interesting. Although it is not in his Bill, he suggests that if not even a joint sitting were capable of resolving a dispute the whole matter should be sent back to the people. If nothing else, this at least illustrates the inherent instability in the system of government embodied in the Opposition's and Senator Rae's approach to this matter. I complete my remarks by saying that this Bill would do nothing whatsoever, were it ever to be enacted and implemented as part of the Constitution, to enhance the quality of democracy, the quality of our system of government in this country. By contrast, its passage would go an enormous way down the track of destroying that very democracy that we are pledged to uphold.