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Tuesday, 29 May 1973
Page: 2799


Mr KILLEN (Moreton) - I do not wish to upset my friend, the Minister for the Capital Territory and Minister for the Northern Territory (Mr Enderby), but I indulge myself to the extent of saying that I do not think he had his heart in his argument or, if I may put it another way, in an anatomical sense I think he put his foot in the argument. The best test of that is to be drawn from the honourable gentleman's observations about the Australian Capital Territory and the Northern Territory. He thundered: 'Who is it who has to look after all the rating responsibilities, the drains, the streets, the hedges, the roads and all the preponderence of local government matters? This does not happen in New South Wales'. That is precisely the effect of the analogy which the honourable gentleman drew. It is perfectly true and it points immediately to the argument before this House this evening. The simple fact of the matter is that the Territories are not States. They are in a process of transition. It is not a competent form of argument to contend that the Territories should be regarded as equal with the States.

In no sense do I cast any aspersion upon my distinguished and gallant friend, the honourable member for the Northern Territory (Mr Calder), whose advocacy in this Parliament on matters pertaining to the Northern Territory may be described, without being offensive, as persistent and competent. But I am not seeking to embarrass my honourable friend at all. What I am concerned about is the proposal now before the House that the Senate should have representatives from the Australian Capital Territory and the Northern Territory. Look at the Minister for Services and Property (Mr Daly). He made a speech which was remarkably redolent of the great conflict between the British Isles and the American colonies over representation. One could almost hear him declaim: 'No taxation without representation'. It reached almost a dull chant, to do him credit on the point. The simple truth of the matter is that the honourable gentleman asked in his speech - honourable members will recall the dulcet language in which he asked this question - 'Is it not strange that there is not one elected representative of either Territory in the Senate to expound the case for the local inhabitants?' He was lachrymose; the tears were pouring out of his eyes down on to the blotting paper. He was trying to encourage the view that there is something improper about the fact that the 2 Territories have no representation in the Senate.

Let me say this to the honourable gentleman, to this House and, I hope, to the country: This is one of the most blatant attacks ever on the Australian Constitution. The audacity of the Minister for Services and Property is matched only by his fecundity of mind in dreaming this up. This Bill is not one which merely seeks, in terms of clause 4, to put into the Senate 2 senators for each of the 2 Territories involved. This Bill, by dint of that clause, seeks to destroy the whole of the Federal Constitution. I want to test this. I do not want to gild the lily; these days I have a heavy preference for erring on the side of under-exaggeration. Let us take the Minister's speech. He recited section 122 in language that would have done credit to Sir John Gielgud. if any of the broadcasting stations or television channels could get him on the air they would score points galore for the sense of poetry in his voice. He recited the section and then he made these profound observations dealing with section 122:

It is clearly permissive. It was therefore the clear intention of the founders of the Australian Constitution that Parliament should be empowered to permit representation of residents of the Territories of the Commonwealth in the National Parliament.

For the benefit of those who may not be going to bed with the Australian Constitution tucked under their pillows, I point out that section 122 provides:

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

In summary, a Territory may be allowed representation on the terms the Parliament thinks fit. The honourable gentleman, who has swept himself into this spendid state of exuberance about mucking up the electoral laws of this country, says of that section: Tt is clearly permissive'. The second thing he says about it is that it was therefore the clear intention of the founders of the Australian Constitution to ensure that representatives of residents in the Territories came to this Parliament. I will deal with the last argument first. I am not culling them out in any terms of offence or, indeed, of substance.

The honourable gentleman says that it was the view of the founders of Federation that the Territories should be regarded in the same respect as the States. I would be interested to know his authority for that curious proposition. To go back to 1897, when this matter was argued and the clause was before the Convention of that year, Sir Edward Braddon drew attention to the nature of the clause and said, amongst other things:

I think there is a necessity for amending line 6.

That deals with the precise line here -

It states that the Commonwealth may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit. I would ask why it should be left to the Federal Parliament to decide? The representation in this instance is to be in both Houses, not in one House or in the other. Why should we not preserve in this question the ratio of representation which has been fixed already in regard to our representation generally?

After a mild exchange of interjections across the place, the distinguished Mr Barton said:

I thought you were harking back.

Sir EdwardBraddon replied:

No. I am barking forward.

And he was harking forward to the evening when the Minister for Services and Property came here with this scrungy little proposal seeking to demolish the Australian Constitution.

The debate continued, and Mr Deakin, the most percipient of the minds who have ever had anything to do with the Australian Constitution, appealed to Sir Edward not to press his amendment. Mr Barton joined with him in making this appeal. He said this:

I ask the honourable member not to insist on his amendment, which refers to territories and not to new States. It would be impossible for the Commonwealth ever to consent to the admission of territories which might be sparsely populated, and which would, according to the honourable member's proposal, be entitled to six members in the Senate. Territories or districts which are only in a primitive state of development are intended to be dealt with by a clause of this sort. They are in a transition state, and they are governed by the Commonwealth until such time as the States have reached a condition which would entitle them to representation in the Senate.

There is nothing in the debates dealing with the Federal Constitution which lends the slightest weight to the proposition put before this House by the Minister for Services and Property. To say that it was the intention of the founders of Federation that the Territories should be represented on the same basis as the States or as new States is to do history a dreadful disservice. For the purposes of illustrating the fatuousness of the Minister's assertion, let me deal with the matter in practical terms. It should not be imagined that the only 2 Territories for which this country is responsible are the Australian Capital Territory and the Northern Territory. What about Norfolk Island? What about the Australian Antarctic? What about Ashmore and the Cartier Islands? What about Heard Island and Macquarie Island? What about the Cocos (Keeling) Islands?


Mr Daly - What do they have?


Mr KILLEN - Let me deal with the interjection by the Minister for Services and Property merely to light up how utterly inadequate he is in terms of pressing an argument with any measure of conviction and frankness upon this great and grave issue. Does the Minister say that the Cocos (Keeling) Islands are uninhabited? There are people there who. to take the Minister's own argument, are entitled to representation in the national Parliament as residents of the Territories of the Commonwealth. Where is the consistency of the Minister? Where does he draw the line? What is his benchmark, other than the mere pragmatism of political opportunity? This is the Minister's position. There are 5 other Territories. The Minister's silence can only be described as rivalling that in a shearing shed after the cut out. If the Minister is correct that section 122 in the Constitution - to use his language, gloria in excelsis - is permissive, what of the consequences? Let honourable gentlemen opposite not put themselves into any curious position as far as this matter is concerned, because I confirm the view that there are no certainties in politics and the fact that they are in government today does not mean that they will not be in opposition tomorrow. If the Minister is now resorting to using section 122 of the Constitution for the purposes of adding a few senators here, a few members there, what is to be the end? The Minister says that it is his judgment that there should be 2 members. Why not, putting it in homely language, kick it up to three? Why not make it five, seven, nine or eleven. As my distinguished and learned friend, the honourable member for Parramatta, said earlier in this debate, where is to be the cut off mark? If the Minister is correct in asserting that section 122 of the Constitution is to be used, as some commentators describe its use, as a unitary section in the Constitution, a section which gives plenary powers to do anything, this section of the Constitution means in effect that all other sections in the Constitution can be trampled upon. A more impossible proposition I have never listened to in my life.


Mr Enderby - Is that what the High Court says about it?


Mr KILLEN - The Minister for the Capital Territory is interjecting, asking what the High Court has done about it. 1 invite the Minister to follow the High Court's decision through on this matter, ranging from Buchanan's case to the case of Spratt v. Hermes in which the present Chief Justice dealt with section 122. What he said may furnish some understanding for the Minister for the Capital Territory upon this point. 1 always indulge myself in the direction of charity. Sir Garfield Barwick, the Chief Justice, said:

Section 122 gives to the Parliament legislative power of a different order to those given by section SI. That power is not only plenary but is unlimited by reference to subject matter. It is a complete power to make laws for the peace, order and good government of the territory - an expression condensed in section 122 to 'for the government of the Territory'.

What the Minister for Services and Property and the Labor Government are attempting to do is to translate section 122 into a power which would enable the Government to control and trample upon every other power in the Constitution. Let me demonstrate that very quickly. If the Minister for Services and Property is correct, by a mere amendment to this Bill or Act at some time in the future 2 senators could be swept to, say, nine or eleven, and depending upon the political climate they could be members of the Senate for 3 years at least. During the course of that time they could be responsible for accepting or rejecting all manner and forms of legislation. I have never known in my experience such a curious attempt being made by a government in possession of its wits to mislead the Australian people. If the Parliament should want final proof of that I invite this House to consider one of the other attending Bills, the Bill dealing with the Representation Act, put forward by the Minister. He puts out a simple little statement to explain to us what it is all about. I would have a distinct preference for talking to my pekinese dog to find out what it is all about. Dealing with one of the clauses the statement says that section 10 of the Representation Act is amended by omitting from paragraph (a) the word 'Senators' and substituting the words 'the Senators for the States'. What impertinence. What impudence. Here is a Bill purporting to amend in explicit form a section in the Constitution. Section 24 of the Constitution provides:

The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of senators.

It has nothing to do with senators from the States or anywhere else. I say to the Minister for Services and Property: Call off your trip abroad to examine electoral laws. Stay here. Spend a few hours in the Library, do a bit of homework and catch up on the reality of Australian politics and you will be persuaded to the view that introducing legislation of this character has no purpose and will offer you little hope.







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