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Thursday, 15 November 1973
Page: 3425


Mr McMAHON (Lowe) - It must now be obvious that the Australian Labor Party is suffering from an acute form of referendum diarrhoea. Referenda are the means by which alterations to the Constitution are made. That is, they ask you, the people of this country, in whom true sovereignty resides, to transfer from the States to the Commonwealth constitutional and legal power over a wide range of matters. They ask you to do so by your vote and to do so permanently.

It will be a permanent and complete transfer of power. From 6 State parliaments, governments and bureaucracies spread throughout the length and breadth of the Commonwealth to one all-powerful parliament, one government and one bureaucracy, centralised in Canberra, isolated from the people and remote from their needs.

You, the electors of this country, would be transferring power to a group in Canberra which, as a group, is apt to think that their interests and inclinations are paramount and dominant. You will not have a second opportunity. You will have, in fact, given away a bit more of the farm to the Commonwealth Government in Canberra, much more distant and less responsive to your wishes than the States. No matter how much you might subsequently regret the transfer of power, you will not be able to have another go - another chance - as a result of your experience and more considered opinion. You cannot recall a power once it is given to the Commonwealth.

With one exception, none of the powers proposed to be transferred by the referendum will benefit the people of this country in a personal way, as was done in 1946 in the amendment, by referendum, to section 51 (XXIII a) of the Constitution which conferred power on the Australian Parliament to make provision for such benefits as child endowment, unemployment, sickness and hospital benefits and family allowances.

I readily confess that my belief in federalism stems not only from the belief that a wide division of powers and the widest debate and discussion in and out of Parliament is in the interests of the people themselves. I also believe - and history confirms - that too great a concentration of power is apt to corrupt, and that corruption feeds on the inevitable failure of secular gospels based on the conviction that some in high office are all powerful and have a monopoly of wisdom.

Proof is easy to come by, and events in the world of today are clear testimony to the fact that administering the government of each and every democratic country raises intractable problems and is better in the hands and minds of many representatives of the people than in the vanity of the few.

As I have said, the Whitlam song and dance comedy soloists in his 27-member assortment - somewhat roughly called the Whitlam Cabinet - are suffering not only from an acute form of referendum diarrhoea but, as I shall show, interference in the affairs of others mania as well.

Already we have debated in this House 2 referenda Bills relating to prices and incomes - both with scanty bikini-type presentation but precious little substance, justification or information. Neither Bills were wanted by the Prime Minister (Mr Whitlam). Only one, the prices referendum, was wanted by his bosom and loving but long-suffering pal, Mr Bob Hawke who, I understand, is now to be replaced in the pecking order in a $15,000 a year job on the Prime Minister's personal staff by Mr Mick Young who is later to be appointed to a permanent Cabinet post by the direct edict of Mr Whitlam himself.

Now we have 3 more Bills and the forecast of a fourth - one relating to simultaneous elections for the Senate and House of Representatives; the second relating to the qualifications of electors at House of Representatives and State elections and the quotas for each Commonwealth and State electoral division; and the last relating to borrowing for and financial assistance to local government bodies.

Before I turn to the Bills themselves, there is a threshold constitutional problem that should be considered. That is the question of whether or not the Commonwealth has legal and constitutional powers to introduce such referendum legislation which touch and concern powers and functions that are clearly within and remain within the jurisdiction of the States, and are related almost exclusively to electoral matters involving the States. This matter is discused fully in Quick and Garran's The Annotated Constitution of the Australian Commonwealth', chapter 481, pages 988 to 995. On page 989 this passage appears:

Hence it may be concluded that there is no limit to the power to amend the constitution, but that it can only be brought into action according to certain modes prescribed.

There is also the question of the need for and desirability of changes to the Constitution. Even the Prime Minister has on more than one occasion stated that amendments to the Constitution are not necessary. Last year, referring to Labor Party policy on democratic socialism, he said that it would be intolerable if a Labor Government were to use the alibi of the Constitution to excuse failure- to achieve its socialist objective. He added that it would be doubly intolerable because it is just not true that it need do so. On the 13th of this month the Prime Minister repeated what he had already said in different language. He said:

A determined Federal Government could find ways of living with the existing Constitution.

The Constitution imposes great limitations- and it should - but the Constitution is not an alibi.

So in his view, and also in the view of the Minister for Overseas Trade {Dr J. F. Cairns) amendments are not needed. Why then the haste to make changes when there is so much to be done of a substantive kind which affects the livelihood and interests of all? In my view the Bills are a smokescreen to cover Labor's failure with its economic, industrial, defence and other policies and to confuse the issues at the next Senate election, and also the election in 1974.

The Bill we are now discussing is deceptive, incomplete and incomprehensible. Although it has a persuasive title, which reads:

A Bill to ensure that the Members of the Parliaments (Australian or the States) are chosen directly and democratically.'

Before debating the 3 significant proposals in the Bill let me mention that clause 3 proposes to repeal section 25 of the Constitution. This section contains a provision relating to races disqualified from voting by the law of a State and provides that in reckoning the numbers of the people of the State or of the Commonwealth persons of that race shall not be counted. It is a sensible proposal.

As to the 3 significant proposals, clause 4 proposes that the number of persons, in each electoral division, Commonwealth or State, and not the number of electors, that is, the people actually voting, should as near as practicable be the same. A proposal in clause 5 deals with the qualification of electors for both the Australian and State parliaments. Finally the Labor Government wants to add a new section to the Constitution to provide that the same provisions of the Australian Constitution, as set out in clauses 4 and 5 of the Bill, shall apply to the elections in the States with respect to both the qualification of electors and the numbers of persons in electoral divisions.

Clause 6 of the Bill is designed to amend section 75 of the Constitution to confer original jurisdiction on the High Court in respect of certain matters affecting Commonwealth and State elections and electoral disputes. The proposal does not of itself take away jurisdiction in these cases from the State courts. However, the Australian Parliament can remove this jurisdiction from the State courts, for example, by inserting a new provision in the Judiciary Act to remove the jurisdiction. Already there are some provisions in the Judiciary Act which could, perhaps, enable cases that are commenced in a court of a State and which involve the exercise of such jurisdiction to be removed into the High Court.

Let me now examine in detail the three substantial issues raised in the second Bill. Probably the most important clause is clause 4. It proposes to add a new paragraph to section 29 of the Constitution. Section 29 itself is irrelevant to this debate. In substance it says that until the Australian Parliament otherwise provides, the Parliament of any

State may make laws for determining the electoral divisions in each State and the numbers of members to be chosen for each division. Already the Australian Parliament has otherwise provided. So this section is now inoperative. The proposal is that the following words be added to section 29 of the Constitution, and I ask honourable members to listen to them intently:

The numbers ascertained in respect of the several divisions of a State by dividing the number of people in each division by the number of members to be chosen for the division shall be, as near as practicable, the same.

The new sentence is incomprehensible unless the reader has already been told what it is all about and the way in which the Labor Party wants - to coin a phrase - to dilly dally Daly.mander the electorates. The change could, of course, be made by legislation of this Parliament without the need for a referendum. The reason for the proposed referendum is that the Labor Party wants to achieve its purposes for ulterior reasons contrary to the best interests of the democratic system of Government in this country.

So far as I can ascertain, the new paragraph is local in origin but the words 'shall be as nearly as practicable the same' have been taken out of the Labor Party's platform, which in turn were taken from an interpretation of Article 1 section 2 paragraph (i) of the United States Constitution which, insofar as it is relevant, says:

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

There is no reference anywhere in the United States Constitution itself to the words 'as nearly as practicable the same'.

The Minister for Services and Property (Mr Daly), who preceded me in this debate, has informed us that in the United States case, Wesbury v. Sanders (1964) the then Chief Justice of that country, Earl Warren - a man more noted for his political judgments than his knowledge of jurisprudence, as will become obvious - ruled that the relevant part of this Article should be interpreted as meaning that in United States Congressional elections - to use his own words - one man's vote in a Congressional election (in the United States) is to be worth as much as anothers'

This was pulling a rabbit out of the hat. As must be obvious, there was no justification for this interpretation. A margin of 15 per cent from the average has, until recently anyhow, normally been considered acceptable in the

United States. But obviously the Supreme Court ruling has not had time to work through the United States and State courts and the trend is now to favour a strict and literal interpretation of the words themselves. It must be remembered too that whilst the High Court of Australia would undoubtedly consider the United States Constitutional and law, it would riot necessarily be found by it. In recent years 'the high' has been much more prone to adopt the literary and dictionary meaning of words than to use the precedents and interpretations of the past. Providentially so but the concrete pipes case is a precedent.

In any event, I do not understand the infatuation with the United States system or the decisions of its Supreme Court - neither seem to be doing anywhere near well as our own - unless, of course, old Dilly Dally or the Prime Minister are aspirants for presidential honours.

The next question is one of logic. As I have said, the Bill proposes that Commonwealth boundaries be drawn up in such a way as to reflect equally the number of persons living within an electoral division or electorate, not eligible electors, that is, the people who in fact elect the members for the electoral divisions of the parliament. Surely the appropriate way to determine the numbers of electors in each State division is by means of a quota of electors properly enrolled and legally entitled to vote, not the number of people including the very young - even .the one and 2-year- olders and up to the 17-year old group - and the migrants who have not become naturalised citizens of this country. The voters are the people who determine the results of the elections and they should be the people who count.

Indeed the proposal must discriminate against those who have raised their families and whose children have moved to other electorates. I refer to the elderly, the young couples with few or no children and single people. It must also discriminate in favour of electorates with high migrant populations.

Furthermore, the proposal cuts directly across the Labor Party principle of one vote one value, and is inconsistent with Labor's alleged fundamental philosophy. This raises the question of both ideology and political opportunism. Labor's proposal means that every vote is not equal in value. It can have one or more electoral values. One vote may represent one or even more than 1.5 people in the electorate, not one qualified elector, that is, an elector qualified to vote. As an example, in an area with 50,000 migrants, many of whom are not yet naturalised, with 25,000 of them voting and 25,000 Australians voting there would be an electorate with 75,000 people and 50,000 voters, a vote in which the actual voter would be worth 50 per cent more people than in an electorate with a predominantly Australian grouping.

I repeat that this is a blatant attempt to gerrymander the electorate by a constitutional amendment. It would mean that the high density areas with a large percentage of people, not qualified to vote, could strongly influence the results of the elections. As Labor thinks these high density areas are red ribbon Labor electorates with much more than average numbers of non voting people it would obviously falsify the vote and any new electorates created by a spill-over would probably trend strongly towards Labor.

More importantly, the essential test of the fairness of a voting system depends on whether or not it truly reflects the opinions and voices of the Australian electorate as a whole. In other words, does the vote at election time enable the party which polls the majority of votes to win the majority of seats?

There is proof beyond any reasonable doubt that since 1949 the legal tolerances have invariably produced fair distributions. Only twice since 1949 has the party with the highest percentage of votes - or the votes of the parties which usually distribute their second preferences to another party or parties - failed to win a majority of seats. One of those occasions was in 1954, when the election was contested on boundaries drawn up under the supervision of the late Mr Calwell when the Labor Government was in power.

The other occasion was the result in the 1972 election which is especially interesting. In this case the boundaries gave Labor an advantage. The figures are:

 

Labor polled only 49.6 per cent of the vote but won 53.6 per cent of the seats. So on the evidence, the present system is somewhat biased towards Labor.

I wonder whether Labor has thought its policies through thoroughly. Has it abandoned its zero population philosophy? Does it intend to advocate a baby boom? If so, to what extent? Will it increase child endowment in order to achieve these purposes? Taken to extremes, has the Labor Party taken to heart Neville Shute's views as expressed in his book 'In the Wet' that some people should have as many as 7 votes - a vote for himself, his marriage, his family, his property, his overseas travel, his war service, and his service to the Queen?

Clause 5 of the Bill seeks to amend section 30 of the Constitution. I do not have the time to deal with this aspect in any detail. I point out also that under the Constitution the Commonwealth already has power to pass laws relating to such matters. Why then does the Labor Government seek to write specific laws of this kind for which it already has general power under the Constitution? I have already given some of the reasons and time alone precludes me from mentioning the balance. I conclude with this supplication: Save us this day, and on all other days and nights, from our Daly dread in this House - the Minister for Services and whatever else the other part of his portfolio description means.







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