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Thursday, 9 May 1985
Page: 1697


Senator DURACK(8.56) —Senator Gareth Evans's contribution tonight has revealed once again the near impossibility of achieving the constitutional reform which he allegedly so much desires to achieve. Any likelihood of achieving constitutional reform requires an ability to compromise and to exercise some forbearance about one's political prejudices in the interests of getting some sort of broad agreement. I hesitate to use the word that has been so popularised by his Leader, namely, consensus. Clearly, to achieve changes in a Constitution requires, by and large, agreement across party lines. That is the one thing Senator Evans has shown himself to be quite incapable of understanding, much less achieving.

When the Hawke Government was elected just over two years ago constitutional reform was very high on the agenda, particularly when Senator Evans was Attorney-General. We spent a good deal of time in this chamber over that period of 18 months or so in the life of the first Hawke Government debating constitutional questions. Of course, all efforts came to naught. At the election on 1 December last year two relatively minor matters were referred to the people as a result of all the huffing and puffing by Senator Evans, both in opposition and in government, in favour of constitutional reform. Those proposals failed. They failed for many reasons, but probably more than anything they failed because of the intransigent and pig-headed way in which Senator Evans approached this whole issue. His speech tonight has demonstrated his total incapacity-I think this is probably also true of his colleagues-to face this question.

It is very interesting that since the election and the change in occupancy of the Attorney-General's portfolio there has been a facing of reality about these matters. Indeed, the present Attorney-General (Mr Lionel Bowen) seems to have gone to the extreme of being totally disinterested in the subject. He has made almost a joke of constitutional reform by his suggestion that his way of approaching it would be to have some sort of convention of sporting figures and recipients of Australian honours to draw up a new Constitution. That might be as successful as what has been proposed by Senator Evans, with all his legal erudition and philosophic ideals. However, I do not think that in the life of this Government we will see any progress at all-any more than we have seen so far-in relation to constitutional reform. It comes back to the fact that some compromises are required and yet, judging by Senator Gareth Evans's reaction this evening to Senator Peter Rae's Bill, it is clear that Senator Evans is not prepared to face any compromise at all on this subject.

Senator Gareth Evans has stated the views of the Australian Labor Party about the Senate and its attitude to powers of the Senate. There is nothing surprising or new about that. We have known for many years the views of the Labor Party on the Senate. Those views have been modified to some extent because, until recent years, the Labor Party simply wanted to abolish the Senate, but because it has proved to be an agreeable place for members of the Labor Party such as Senator Gareth Evans who have found it to be a way of achieving a political career on the national stage which they would not otherwise have been able to achieve, those views have been modified. Now it appears that the Labor Party believes there should be some emasculated institution playing a fairly minor role in the political life of this country, but still enjoying the emoluments and comforts of members of the national Parliament. If that is the Labor Party's view of the Senate, and we know that as a basic political philosophy it would favour its abolition-


Senator Tate —That is not right.


Senator DURACK —If Senator Tate had been here earlier he would have heard me give the background to that statement. It is not helpful for him to come into the debate at this stage and seek to interject, not having heard my earlier remarks. If the Labor Party had the courage of its convictions and if the Labor senators in this chamber had the courage of their convictions, even regarding the Senate in this emasculated form which they now espouse, they would put to the people of this country a referendum to abolish the Senate, or at least a referendum to emasculate it. Labor's policy now is to emasculate the Senate.


Senator McKiernan —That is not so.


Senator DURACK —Senator McKiernan would not know these things because he was not here at the time and probably was not following anything much that was going on here, but Senator Gareth Evans introduced a Bill in this Parliament some years ago, when he was in opposition, which contained the proposal that the Senate should not have power to refuse supply. That part of the Bill was withdrawn. He went on with other aspects of the Bill dealing purely with fixed term parliaments-another issue altogether. But Senator Gareth Evans and the Labor Party, either in opposition or in government, have never had the courage to go frankly to the Australian people and put their views to them, as Senator Gareth Evans has put his views to the Senate tonight. It is all very well for him and no doubt for Senator Tate, who is to follow me in this debate, to come into this chamber, with its comfortable atmosphere and in the presence of a few senators-and very few other people-who are interested in this debate and state the high-sounding principles espoused by the Labor Party about government in this country. But they are not prepared, and never have been, to argue their case to the people. They have not done that for the simple reason that they know perfectly well that that would be laughed at and scorned by the electorate.

Their proposals would be thrown out neck and crop-not just by, as Labor regards them, the backward States of Queensland, Western Australia or Tasmania, but by a majority vote throughout Australia, and probably a majority vote in all the States of Australia. The same sort of thing happened to the fairly minor proposals that the Labor Party ultimately summoned up the courage to take to the electorate last December. Even then the Labor Party could not obtain a majority vote in the Australian electorate. That had nothing to do with the politics of the matter. It shows that the Labor Party has never been prepared to face up to its convictions and to argue its case to the Australian people. If that is to be its approach to constitutional reform, we shall never get anywhere. What I have said is required is some ability to compromise.


Senator Gareth Evans —After your performance last year? Humbug, absolute humbug.


Senator DURACK —The humbug was Senator Evans's. He had a compromise last year or the year before in this place and he rejected it. He rejected it because he was denied the money to sell his case, the Government's case, and not provide equal funding for the Opposition. Because Senator Evans could not get his own way on a thoroughly minor and irrelevant matter, he behaved in his usual childish fashion, picked up his playthings, took them home and abandoned the referendum on which he could have had some consensus. That is why his whole effort failed. He never had a genuine interest in constitutional reform or in obtaining agreement on both sides of politics.

This proposal by Senator Peter Rae is a proposal for compromise in relation to the powers of the Senate. Senator Gareth Evans has said what the Labor Party believes about the Senate. It is diametrically opposite to the views of the Opposition about the Senate. We must accept the fact that we shall never agree about that matter. But one thing that is clearly agreed between us is given effect in this Bill. The Opposition has always said-it took this view in 1974 and 1985-that if the Senate rejected Supply and if the Government played by the rules, which Mr Whitlam did not want to do but which it is now accepted a government has to do, if it sent the House of Representatives to the people the Senate shall itself go to the people. That was a fundamental aspect of the policy we pursued in 1974 and 1975. We did not exercise, and did not purport to exercise, the undoubted powers of the Senate and nobody has been prepared to challenge that-much less the Labor Party with all its view about the Senate. It has never been prepared to challenge the fact that rightly or wrongly, the Senate has those powers, and has them unchallengeably. In that circumstance, as a matter of law under the present Constitution the Senate can send the House of Representatives to the people without itself going to them. But we do not believe that that is an appropriate exercise of powers by the Senate.

Senator Rae's Bill is as he has brought it forward in this House. It has been supported in this chamber before, as I hope it will be supported tonight. He has brought forward a compromise to change the Constitution to ensure that the Senate could not act in that completely capricious way whereby there would be an election for the House of Representatives but not for the Senate if it exercised its powers to refuse Supply to the government of the day. That is a very reasonable compromise which, in light of the views expressed by Senator Evans on behalf of the Labor Party tonight and the views strongly held on this side of politics by the Opposition, is a way of ensuring that in future there will be an orderly and fair way of resolving conflict if it ever erupts again. Although that must be considered an unlikely event now because of the Opposition's views on this question, it is an event which could erupt again. Therefore, it would be highly desirable to change the Constitution to ensure that if a crisis of that kind ever arose again there would be an orderly, sensible and fair way of resolving it. That is all that Senator Rae's proposal entails. I would have thought that if the Government and Senator Evans, a former Attorney-General and a former great constitutional reformer, believed in constitutional reform and in an attempt to achieve some consensus on this subject, this Bill would have the support of both sides of this chamber.

The brief purpose of this Bill is to ensure that if the Senate does exercise its powers to refuse or defer Supply there must be an election within 30 days. It is a very well researched piece of legislation. It has been considered at the Constitutional Convention for a number of years. It was first proposed in October 1976. It has been closely looked at by a policy sub-committee of that Convention known as Standing Committee D. The Bill itself has been very carefully and closely studied over a period of years by that Committee and the major features of it were approved by the last Constitutional Convention in Adelaide in 1983.

There could still be debate about some provisions of the legislation. They are not sacrosanct and there have been divisions of opinion about how it should be drafted and so on, but that is not the response we have received tonight from Senator Evans. We have received a simple and firm rejection by the Government of this attempt at reaching what is undoubtedly a compromise, but a sensible compromise, on an issue of this kind. I can only express my disappointment that Senator Evans has revealed his total incapacity to understand how constitutional reform in this country can be advanced.


Senator Peter Rae —He is a constitutional reform troglodyte.


Senator DURACK —He has totally misunderstood the nature of the problem. That is not surprising. He is sitting opposite no longer as Attorney-General of this country. He has had the great toffee apple taken from him simply because he was unable to cope with the demands of that office and unable to implement any of the major reforms that he sought when Attorney-General. We had the classic example tonight of his attitude and of his incapacity to give any real effect to his desires to achieve constitutional reform in this country. I can only express my regret that this attitude persists, and I hope that other members of his Party will not do likewise, particularly now that we have a new Attorney-General in Mr Bowen in another place who has shown much greater realism towards how he may achieve reform of the law and of the Constitution. I am not impressed with some suggestions of Mr Bowen about the nature of the Constitutional Convention, of sportsmen and others---


Senator Gareth Evans —Bush nurses.


Senator DURACK —Well, he may well succeed more than Senator Evans has been able to do. I wish him well, and I hope that at the Constitutional Convention he is going to assemble in Brisbane in July this year we will have a much better spirit of compromise and a better understanding of the need for compromise and of the fact that that is the only way in which we will achieve any major changes in our Constitution, which of course are desirable from time to time. I give the very strong support of the Opposition and myself to Senator Rae's proposal. I hope that other supporters of the Government who may speak in this debate will have a somewhat deeper understanding of this proposal of Senator Rae and that it will have the support of the Senate once again.