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Thursday, 9 May 1985
Page: 1700

Senator TATE(9.17) —I oppose the Constitution Alteration (Appropriation Bills) Bill 1984 [1985] brought into this chamber by Senator Rae in order to bring about an alteration to the Constitution. I do this for the simple reason that I believe it is quite inopportune to bring before the chamber at this time such a proposal when, as Senator Rae must know, it is doomed to failure in the electorate to which he would be appealing in any referendum. It is well known, it is part of the historical and political culture of Australia, that, when one major political group in the country does not support and actively opposes a referendum proposal, it gets defeated. What the honourable senator has put forward by way of a proposal to alter the Constitution this evening has as its core an institutionalising of the right of the Senate to reject Supply. We can argue for a long time as to whether the Senate actually has that power vested in it by the Constitution as it stands, but Senator Rae could not expect the Australian Labor Party to support any proposal which reinforced or institutionalised that particular power in the Constitution. Therefore, I think what we have before us tonight is some play acting, a bit of symbolism, and bears no relation to the reality--

Senator Peter Rae —No, be fair. I introduced it 12 months ago. It has just managed to come up.

Senator TATE —I am surprised that the honourable senator has not learnt from the experience of late last year, because what makes this doubly inopportune is the experience we had late last year when proposals had the support of the Constitutional Convention, of which Senator Durack has just made a lot-all parties and political leaders supported simultaneous elections and the interchange of powers proposals-but because it was politically opportune to exhort the people to vote no against the Labor Government late last year the position was changed from what it had been in the Constitutional Convention. So I think it falls particularly ill from the lips of those members of the Liberal-National parties opposite, the coalition, to come into this chamber and talk about certain proposals which at one stage had the support of the Constitutional Convention when, in fact, it has never been something which has weighed with them when political opportunity arose, as it did last year, to do damage to proposals for constitutional reform.

Senator Peter Rae —You will accept that I have been consistent.

Senator TATE —I accept Senator Rae's good faith in this, but given the fact that it has no hope of being supported sufficiently in the community to get the majority required in a referendum, namely, that in a majority of States a majority of electors voting have to approve it, I believe it is a fairly futile exercise-that is the point I am making-to raise it for discussion at this time when the Senate should be considering so many other really important matters.

Let us recall that the real reason for this proposal, which I think was first put forward by Sir Charles Court, then Premier of Western Australia, was not so much to submit the Senate to some sort of discipline so that the Senate would know that it would face a full dissolution of the chamber in the event that it forced the House of Representatives to an election by refusing Supply to the Government. I heard pious statements to that effect as I re-entered the chamber and listened to Senator Durack. That was not the real reason for that proposal. The real reason, as I recall-those who can recall the early constitutional conventions will back me up I am sure-was to make the consequences of refusal of Supply as automatic as possible. So there was no compromise. Senator Durack spoke of compromise many times during his address. There is no compromise on the central issue of whether the Senate can refuse Supply so as to force a government enjoying the confidence of the House of Representatives to an election. The proposal was to make this situation as automatic, as step-by-step as possible, in order that the Governor-General would not be put in a position where he had to exercise some sort of discretion, to make some choice, to make some sort of decision.

The real reason for the Sir Charles Court proposal-I recall this well-was to ensure that the Governor-General was taken out of the political process, so that he could remain untainted by the political furore that would erupt if the Senate rejected Supply. It was to preserve his position as the representative of the Queen, in that exalted position accorded to him by the Constitution where the Executive power of the Constitution is vested in the Queen by the Governor-General as her representative. It was for very conservative political reasons that this proposal was put forward. I do not think it ought to be forgotten that that is the real rationale of the true conservatives who put forward this proposal initially. Senator Rae may have a different emphasis for taking up the proposals.

Senator Peter Rae —It is not even the identical proposal that was put forward.

Senator TATE —That was a very strong reason for taking the Governor-General out of the process and making it as automatic as possible, thus leading to a double dissolution. The kernel of our disagreement can be re-stated quite briefly. We simply believe that when the Westminster system of government-responsible government-was wedded to the Federal system in Australia, when the Commonwealth of Australia was constituted, quite properly, provision was made for the Senate, a House which it was thought would in some measure or way represent the States, the members of that Federation. But as we know the Houses are composed and voted for in quite different ways. It is clear that a government which commands a majority in the House of Representatives and enjoys the confidence of a majority in the House of Representatives may, and quite commonly does not, enjoy the confidence of a majority in the Senate. The question simply is whether a government is entitled to remain in government when, not having lost the confidence of a majority in the House of Representatives, it nevertheless finds a Senate which consistently, and over a long and broad range of programs, tries to frustrate it to the point of refusing it money for the ordinary annual services of the government.

It is pretty obvious that in our party system which dominates both chambers we cannot sensibly expect a government to operate in a way which requires it to be responsible to both chambers. Where we have a political culture such as ours dominated by the party system and where both chambers are constituted so differently, as I say, it is quite likely that a government will be faced with a hostile political majority or coalition of forces in the Senate while enjoying the confidence of a majority in the House of Representatives. As is well known we on the Labor side are quite adamant that governments are formed by those members of parliament who are chosen by the Governor-General, on the advice of the Prime Minister, the Prime Minister being the person who enjoys the confidence of a majority in the House of Representatives. He is the person whom the Governor-General ought to select to become Prime Minister. That is the convention of the Constitution.

The formation of a Government depends on a body of parliamentarians having the confidence of a majority of the House of Representatives and no doubt that can be tested in various ways on various votes. But no one is suggesting that the Governor-General should seek to know the mind of the Senate in relation to the formation of the government. A vote of no confidence passed by this chamber in a government which still enjoys the confidence of the House of Representatives would make no impact on the Governor-General in whom he selected to be Prime Minister and who then advised him as to the members of the Executive Council, the members of the Government. It would have no impact on His Excellency whatsoever. So the position as to the formation of a Government is very clear, and everyone agrees with it.

However, we in the Labor Party can see no reason to adopt a different outlook or policy in relation to the destruction of a government. Once again, the House of Representatives should be the chamber which is pivotal in the question of formation and destruction of a government. A Prime Minister who cannot command the confidence of a majority in the House of Representatives either has to be replaced-the Governor-General can select another person from that House to be Prime Minister and it can be quickly demonstrated whether he or she has the confidence of that House-or there can be an election to re-constitute that chamber. It is as simple as that. Whilst it is true that there has been no direct vote of no confidence in a House of Representatives such as the government being forced to resign because of such a vote being carried, nevertheless there have been, I believe, some eight occasions when governments have either resigned or advised of dissolution following their defeat on important questions in the House of Representatives. That is the political situation in Australia and we say that it is quite adequate to the formation and destruction of governments.

Senator Rae's Bill virtually asks us to accept a situation where, as I say, the Senate not having the power to remove a government by passing a vote of no confidence nevertheless can bring about the same result by blocking Supply. That is, it does not have an effective power to vote on or approve the Governor-General's choice of a Prime Minister by any vote of confidence or no confidence, as the case may be, nevertheless, apparently it can starve a Prime Minister of the funds necessary to carry through his government's programs when he is seeking money for the ordinary annual services of government and in that way bring the machinery of government to a halt. Senator Rae has tried to define what are the ordinary annual services of government.

Senator Peter Rae —I am glad you are going to address that. I hope you will support that part.

Senator TATE —I am not sure that I do because the honourable senator has attempted to define them by reference to the 1965 compact, and that has some merit. However the distinction which is embodied in that 1965 compact is properly expressed, I think, as a convention of the Constitution. This is something which I do not think can be very usefully written in hard and fast terms into a constitution. It is of the nature of a compact, of an arrangement, of an understanding, of a true convention of the Constitution. To try to reduce it in this hard and fast way, as Senator Rae's Bill proposes to do, I think gives a rigidity to what really was an arrangement between the two Houses, an arrangement for a quite different purpose. I think it has to be remembered that the arrangement was made in order to give the Senate a power to amend those Bills which, in Senator Rae's list, are matters which will not count as measures to obtain Supply-for example, financial arrangements with the States or financial arrangements to do with the implementing of new programs of government. Of course the compact was designed to allow the Senate to amend such Bills and in that way allow it to have some sort of say in the moneys that were proposed to be allocated to those purposes. But it is not clear to me that to refuse a government certain moneys to do with financial assistance to the States, which, as we know, is a matter of great importance to the Australian Federation, to refuse a government moneys to implement new policies not previously specifically authorised by legislation, would not be as damaging to the programs of the government-it might be as central, as crucial, as significant to the government, to its announced program-as would be simply refusing to provide the government with the money for the ordinary annual services of government.

It seems to me that the distinction which was drawn for the purpose of enhancing the ability of the Senate to obtain amendments may not be appropriate when we are trying to define those matters to do with the provision of moneys to government which are central, crucial and of the utmost significance to its ability, its standing and its status as a government able to implement its programs. For that reason I cannot give the Bill the fullest support that I might otherwise like to.

As I say, the real difficulty for the Australian Labor Party, the present Government, remains the same as it has been in the years of opposition; that is, that there is no true compromise in the essence of the Bill. There is compromise, I agree, to a certain extent in the machinery provisions. Nevertheless, there is no compromise in the central matter, which is that once again the Senate's ability to bring down a government which still enjoys the confidence of the House of Representatives is, if anything, enhanced, because the Governor-General has been taken out of the political process, the steps being so automatic. Whilst the Senate would then bear the enormous burden of facing the people, nevertheless its exercise of the power is probably enhanced or strengthened because it has no discretionary supervision by the Governor-General to stop the automatic steps which are outlined in the Bill. For those reasons I cannot support the Bill and I guess nobody on this side of the chamber can do so either.