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Wednesday, 15 May 1957


Mr WHITLAM (Werriwa) .- It gives me great pleasure to follow the Minister for Territories (Mr. Hasluck) this evening because, at question time this afternoon, he answered a question of mine inaccurately. However, he will have an opportunity to give an accurate answer to the same question which I have now put on the notice-paper and which, I hope, he will bestir himself to answer before the House rises for the winter recess. The Minister has also just given an inaccurate reply to the honorable member for East Sydney (Mr. Ward), who has objected, on behalf of the Opposition, to proposed new section 38a, which is to be inserted by clause 4 of the bill. The Minister has said that the provision proposed to be inserted is similar to that which governs the proceedings of this Parliament. It is not similar to the provision which governs the proceedings of this Parliament in a very material respect because this provision leaves to the Legislative Council the option of determining itself questions respecting the qualification of its members or of referring them to an impartial body, the Supreme Court of the Territory of Papua and New Guinea.

It is true that, under the Constitution, such matters, when they arose in this place or in another place, were left to the determination of the House until the Par liament otherwise provided. But the Parliament made other provision as far back as 1918. If the Minister will refer to section 203 of the1 Commonwealth Electoral Act he will see that this Parliament has no option of determining a matter itself or of referring it to the court of disputed returns - in our case, the High Court of Australia. If any determination has to be made it must be made by the High Court or the Supreme Court of a State to which such matters can be referred, not by this Parliament, but by the High Court. Section 47 of the Constitution reads -

Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives . . shall be determined by the House in which the question arises.

As I have said, other provision was made under that section of the Constitution, and the provision which now obtains appears in Division 2 of Part XVIII. of the Commonwealth Electoral Act. Section 203 of that act is in these terms -

Any question respecting the qualification of a senator or of a member of the House of Representatives . . . may be referred by resolution to the Court of Disputed Returns-


Mr Hasluck - It says " may be ".


Mr WHITLAM - Precisely. I thought I made it clear that if there is to be any determination of these matters we believe it should be made by the Supreme Court of the Territory just as the High Court or, if it so thinks, a supreme court of a State can make such a determination in any question of qualification concerning one of our members. The Opposition is not saying that whenever such a question arises in the Legislative Council it has to go to the Supreme Court of the Territory. We do not say that if any such question arises in this Parliament it has to go to the High Court. But we say that if such questions are decided by anybody they should be decided by the court.

The Minister for Territories is quite in error in comparing the procedure which he asked to have instituted in the Territory with the procedure which applies in this Parliament. For 40 years, whenever such questions have had to be determined, they have been referred for determination to the High Court and if the High Court has thought fit, they have then been referred to the Supreme

Court of a State. But neither this House nor the other place can determine such questions concerning its members. We say that the same conditions should apply to the Legislative Council of the Territory of Papua and New Guinea. It is quite wrong that a man's qualifications should be decided by his colleagues or his opponents. They should not be decided by nominated members or elected members. They should be determined by the members of an impartial body, in this case the Supreme Court of the Territory whose members hold office during good conduct. As I was saying, section 203 of the Commonwealth Electoral Act provides that such questions - may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question.

The clause at present under discussion provides that a question respecting the qualifications of a member of the Legislative

Council-


Mr Hasluck - Yes, read on.







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