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Tuesday, 29 May 1973
Page: 2807


Mr WENTWORTH (Mackellar) - It is always a little difficult in a cognate debate of this character - a debate on more than one Bill - to state one's views with absolute clarity, especially in a matter such as this where I support the Bill which gives the extra member in the House of Representatives to the Australian Capital Territory but oppose most sincerely the Bill which endeavours to subvert and change the basis of the Senate. Let me try to deal with these 2 questions separately and show why I feel that this is the course we should adopt.

It is fair that the Australian Capital Territory should now qualify for 2 members in the

House of Representatives in place of the existing one member. It qualifies by reason of the great increase in population which continues to take place here. The House will recall that it will not be long - a year or two - before the number of electors enrolled in the Australian Capital Territory will be twice the normal quota of electors for each electorate throughout Australia. Under those conditions I see no reason why we should not allow the Australian Capital Territory to have representation in this House on the same basis as other electorates. I notice that this measure has been opposed by some people, although it would not be opposed by me, on the ground that public servants constitute the main population of Canberra and by reason of their influence they have been able to obtain most favoured treatment for Canberra in respect of such matters as schools, sewerage and public amenities. To some extent this is true, but I think that even the people in other electorates would recognise that when the number of electors in the Australian Capital Territory reaches the requisite level 2 members in place of the existing one member should be given to the Australian Capital Territory. It is as well to recall that in respect of both the Northern Territory and the Australian Capital Territory almost all the significant moves for fair representation in this House have been made by the previous Liberal-Country Party Government or its predecessors. It was in 1922 that the Northern Territory first obtained a representative here. There was not a Federal Labor government in those days. In 1936 that member was given his first voting rights, and that was in respect of the disallowance of ordinances. There was not a Labor government in those days. In 1959 he was given wider rights of voting on specific matters affecting the Northern Territory. There was not a Labor government in those days. In 1968 he was given full voting rights. There was not a Labor government in those days. When one looks at the history - I am afraid that my friend, the Minister for Services and Property (Mr Daly) who is at the table, tended, perhaps unconsciously, to mislead the House on this matter in his second reading speech - one will see that nearly all the advances have come under a Liberal-Country Party government, a Nationalist government or a United Australia Party government. The Opposition will continue to try to be scrupulously fair in this matter.

It is true that it was in 1948 that the Australian Capital Territory first achieved any representation in this House, but I think that honourable members will recall that before that date the number of electors in the Australian Capital Territory would have been only very small. It was done as soon as it was fair to do it. It was in 1959 and 1968, under a non-Labor government, that the powers of that member were enlarged. I think the Minister at the table when he thinks back will be fair about this and realise that most of the advances have been made by the parties on this side of the House. I shall say very little more about this because I believe that the proposal which the Government has brought forward is fair. It would not have been fair had it been introduced earlier; but, by reason of the increase in the number of electors in the Australian Capital Territory which is occurring, it is fair now.

Let me come to the other matter. I definitely oppose the Government's proposal that there be 2 senators from the Northern Territory and 2 senators from the Australian Capital Territory. I have 3 reasons for opposing this measure: Firstly, I believe that the constitutional validity of the proposal is, at best, very doubtful; certainly I believe it to be unconstitutional. Secondly, it is not clear and there is ambiguity. Thirdly, I think it is substantially wrong, that it subverts the whole basis of the Senate and that it is unfair to every elector in the rest of Australia that this kind of preference should be given to the Australian Capital Territory. Let me deal with each of these 3 arguments. First of all as to the constitutional validity of the proposal, speaking as a layman on a legal matter, in contradistinction to my learned friends the honourable member for Parramatta (Mr N. H. Bowen) and the honourable member for Moreton (Mr Killen) who have put arguments to the House, as I read it section 122 of the Constitution allows the representation of a Territory in either House of the Parliament to the extent and on the terms which the Parliament thinks fit. This, of course, must be read in conjunction with the rest of the Constitution. I believe that the word 'extent' properly refers to the numbers and that the word 'terms' probably refers to the length of the term for which members are elected. It is not 'term and conditions' as occurs in other phrases in the Constitution. It is 'terms' and I think it refers to a period of time. I turn now to section 7 of the Constitution which states:

The Senate shall be composed of senators for each State, directly chosen by the people of the State. . . .

This is the fundamental constitutional law of the Senate. The Senate is composed of senators for each State, directly chosen by the people of the State. So it could be said that the new senators will not be senators in terms of the Constitution because the Constitution lays down quite specifically in section 7 that senators are chosen directly by the people of the State. To my layman's mind that seems quite clear. I refer to another section of the Constitution. Section 23 states:

Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.

This is a very restrictive and carefully drawn section of the Constitution and I think it makes it clear that this Parliament is constitutionally incapable of conferring on the people represented in the Senate - whether they represent the Northern Territory or the Australian Capital Territory in the Senate - the right to vote in the Senate or, indeed, to be senators. This seems to be a matter of elementary constitutional law.

Therefore, I would think that section 122 must be read in a sense which allows representation in the Senate in the same sense that we gave representation to the Northern Territory in this House in 1936. We said to the new member: 'You are here and you can speak. You can take part in debates. But you cannot vote'. I believe that any law which endeavours to confer on people chosen from the Territories to sit in the Senate the right to vote in the Senate would be an unconstitutional law and would be thrown out by the High Court. I draw the attention of the House to distinctions which arise in regard to the position of the Senate and that of the House of Representatives. If one looks at the relevant clauses in the Constitution, one can see that they are quite different. Let me contrast for honourable members - I will read the clauses once again - section 7 of the Constitution which applies to the Senate with section 24 of the Constitution which applies to the House of Representatives. Section 7 states:

The Senate shall be composed of senators for each State, directly chosen by the people of the State, . . .

Only people in the States can vote for senators. But section 24, which relates to the House of Representatives, states:

The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth. . . .

People in the Territories are people of the Commonwealth; they are not people of the States. There is no constitutional bar to the representation with full voting rights of the Territories in this House but there is a constitutional bar, I would think, to the representation of those Territories in the other House.


Mr Donald Cameron (GRIFFITH, QUEENSLAND) - It is a States House.


Mr WENTWORTH - Of course it is. Again, I should like to contrast section 23 of the Constitution with section 40. Section 23 states:

Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vole.

So, if the proposed new senators are not senators, they cannot vote. But section 40 of the Constitution, which is the corresponding section in regard to the House of Representatives, is quite different because it states:

Questions arising in the Mouse of Representatives shall be determined by a majority of votes other than that of the Speaker.

Since members of the Territories are constitutionally capable of being represented in this House, they are capable also of voting in it. I do not think that the Government really has turned its mind to the difficult constitutional questions involved in this Bill. It has been misled by the fact that there is no constitutional bar or difficulty in putting members of the Territories as representatives in this House but there is a constitutional bar to putting them as senators in the Senate. 1 am a mere layman in these matters and 1 have given a layman's view of it. After all, the Constitution was drafted by lawyers but there were a lot of laymen present and I do not believe that we can entirely ignore the commonsense or the lay view of a constitutional matter. I feel that the High Court would take this kind of view, as it always has done. The Court has adopted the very widest and non-legalistic principle when it comes to interpreting the terms of the Constitution. So my first reason for opposing this Bill is the doubts - they are rather more than doubts, I am afraid - as to its constitutional validity.

My second reason is, of course, the lack of clarity contained in the Bill, as the honourable member for Parramatta pointed out earlier in this debate. We do not know whether they are senators or not senators or whether they are to be counted for this or for that. Really, they will not know where they stand. We do not know whether they are to be Arthur or Martha. They are really going to be quite confused and, indeed, if I may say so, it will be the difference between a tadpole and a frog. I mean no disrespect to the Minister for Education (Mr Beazley) who is at the table. I do not want to labour this point but the lack of clarity in this Bill and the evident confusion between the Bills which are brought forward by the Government are themselves sufficient reason for throwing out this legislation.

I come to the matters of substance. My friend the honourable member for Moreton has pointed out the really tremendous impact which this Bill will have on the whole of the Constitution. It is true that, in the phrase used by the honourable member for Parramatta, the Constitution is not only a legal document; it is also a compact between the States and as a compact between the States it does embody a certain inequity in voting power. For example, it allows for the same number of senators for Tasmania as it does for New South Wales. I think the ratio of population between the 2 States is something like 12 to one. So a voter for the Senate in Tasmania has 12 times the weight of a voter in New South Wales. This is not something which New South Wales has always been terribly happy about but we accepted it because it was part of the original Constitution. It is part of the Federal compact and, as such, it is accepted and generally regarded as something which cannot and perhaps should not be changed.

There exists an inequity in voting. The principle of one vote one value is thrown right out of the window. This was the price of Federation and it was a price which we agreed to pay and, having agreed to pay, we will of course go on paying. But what is going to happen in regard to the Northern Territory, for example? According to the Government, it is to have 2 voting senators. What is the population of the Northern Territory?


Mr Hunt - About 90,000 people.


Mr Calder - There are 31,000 voters.


Mr WENTWORTH - I am informed that there are 90,000 people in the Northern Territory. If this number were to be multiplied by SO, we would have about the population of New South Wales. Is this the kind of thing which should be tolerated, even if New South Wales has 10 senators and the Northern Territory will have only two? It is not. This kind of inequity is going too far altogether. While one would accept the principle of inequity in the representation of the small States as part of the price of the Federation contract and honour the contract which has been entered into, I see no reason why, when there is no constitutional need for us to do so, we should import this principle of tremendous inequity into the Senate. What are the people of my electorate going to say to me when they are told that I have voted to put the Senate under the control of 2 tiny groups, one in the Northern Territory and one in the bureaucracy of Canberra?


Mr Donald Cameron (GRIFFITH, QUEENSLAND) - They will say 46hame'-.


Mr WENTWORTH - They will not say it to me because I will not vote for the Bill, but perhaps it will be said to some supporters of the Government. Some of their electorates are quite big. Their constituents will not be happy about having their tails twisted all the time by a small minority holding the balance of power in the Senate. Under our system of proportional representation the Senate is always fairly evenly balanced. There are only two or three votes between the parties on either side. Are we to have the constitutional position that the Northern Territory and Canberra can gang up together, join the majority in the Senate, and hold the rest of Australia to ransom?

My electorate perhaps will tolerate the fact that schools in Canberra are better than the schools in my electorate; perhaps they will tolerate that all bouses in Canberra are sewered in advance, and things of that character; but they will not tolerate the giving over of future favours to this small sectional bureaucracy and the small number of people in the Northern Territory. There is no need for it. The people of the Territories are entitled to and will get proper representation in this House. They are not entitled to representation until their numbers are 10 times what they are now. Even then there will be the constitutional impediments to which I have drawn attention.







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