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Wednesday, 21 November 1973
Page: 3612


Mr KILLEN (Moreton) - The Minister for Services and Property (Mr Daly) has a very robust approach to politics which of course he expresses in a very exuberant and, at times, boisterous fashion. To some of us, of course, it is a source of constant entertainment. To others it punctuates an otherwise dreary existence. His approach though is marked by one narrow furrow by way of an objective, and that is to get power and to keep power - and, of course, he has never disguised that for one moment and he is to be heartily commended. But I must confess that my friend puzzled me somewhat this afternoon when he turned to my colleagues in the Country Party and said: 'To describe this in this fashion would be to describe it most charitably'. Since when has the honourable gentleman ever inclined his being in the direction of charity? This would be something that I would find a matter of some puzzlement.

But then the honourable gentleman also turned to Quick and Garran and he said: 'I hope the honourable member for Moreton will follow me through to make sure I am observing my lessons as a lawyer'. It is an absolute delight for me to find that the honourable gentleman, at long last, is observing some measure of discipline with respect to the Constitution, and that he should ever feel disposed to quote Quick and Garran was a contemplation that was never within my mind. So what a joyous afternoon it is for me to find, on a variety of counts, that the honourable gentleman has put himself into this engaging, this fascinating, this fragrant state of mind. He quoted from Quick and Garran, but what a pity that my friend did not continue to quote from it. He left out what I would have thought was the nub of this discussion. So if I may - continuing in the role of the instructor - indulge in a little bit of didacticism, let me continue a little further with the quotation from Quick and Garran. The honourable member was right; he had the right page, 993. He was right there. But the learned authors went on to say:

If a majority of the States had been ignored-

And here they are discussing the method of altering the Constitution - the Federal element in the structure of the Commonwealth would have been impaired and whittled away.

What does the honourable gentleman say to that? Why did he not continue? There is no point in seeking to gain knowledge if you only go half way; go the full way. I am sure the Minister will benefit from it.

However, I ask the Minister to listen and not to get too impatient for knowledge. The learned authors go on to say:

In a unified community it would be sufficient if a majority of the people sanctioned a revision of the Constitution. In a Federal community, in which the National and State elements co-exist, a modification of the fundamental law, without the approval of both the people and the States, would he unjust and repugnant to the whole scheme of government.

Here the honourable gentleman embraces one sentiment of Quick and Garran which, with a great flourish he seeks to invoke to his advantage. What does my friend say about the other sentiment? Would he agree with Quick and Garran that it was unjust? Would he agree with Quick and Garran that it would be repugnant to the whole scheme of government to ignore the position of the States? The honourable gentleman cannot approbate and reprobate, and this is one of these severe disciplines that I suspect he will really have to turn his mind to in order to ensure that he has a clear approach to constitutional problems.

Having said that, may I turn to what I have invited the honourable gentleman to acknowledge is the nub of this issue. I would, by way of introductory remarks, say that the Government surprises me with its measure of impatience. I know that the Prime Minister (Mr Whitlam) has long entertained that there are blemishes as far as the Australian Constitution is concerned. I know that he has always held out, in the boldest of frames of mind, that the Constitution should be altered. One may indulge in the luxury of seeking to agree with him in some respects, but what puzzles me on this occasion about the Government which the honourable gentleman leads is the impatience, having regard to the fact that a Constitution Convention was held in Sydney a short time ago and that at that Convention, with the agreement of all of the States and with the agreement of the Commonwealth delegation, of which the Prime Minister was the distinguished leader, committees were set up to investigate various areas of constitutional reform. This was one of those areas. Indeed, without seeking to put one committee's future in any measure of jeopardy, it was on this particular committee that I was invited by the Prime Minister to serve.

It is going to take some months for the views of that committee to be made available. It is going to take, I suggest, about another 12 months before that Constitution Convention meets again in plenary session. I would suggest that not only would it have been wise in terms of constitutional reform but also wise in terms of political procedure to have awaited the outcome of that committee's report, and shall tell the House why. In particular, I would seek to tell my friend the Minister for Services and Property why it would have been politically wise to await that committee's report. The States have long considered that the Palladium of their rights and liberties as States is to be found in section 128 of the Constitution.

It is very difficult to find any State member of Parliament, no matter what his political allegiance or affinity may be, who will not nurse some measure of resentment against the central Government. My friend knows this to be true. Many of them take the view we are seeking to trench upon their rights. State rights is the battle cry which I know we find on occasions irritating and a little difficult to understand, but the attitude of mind is there. The need to create a feeling for this country as one nation is one I hold to very strongly indeed. But the simple fact remains that the difficulties about constitutional reform are substantial and one can achieve them only step by step, by a process of enlightenment and, I suggest, by a process of encouragement to ensure that those who serve in State parliaments are not consumed or overwhelmed with any sense of fear, that they are convinced as to the merits of the proposal that is put before them.

I may find myself in the position of having considerable sympathy with the proposals put forward. Indeed I have unfeigned support for the proposal regarding the territories and I do not disguise that for one moment. However, it is the third proposal that concerns me, and I suggest that what the Government has done now is to imperil the prospect of constitutional reform by seeking to thrust this proposal onto the States in particular and the people in general. Let me put this proposition to the House: If at the time of Federation in the 1890s the proposal had been that a simple majority of electors voting at a referendum would be adequate means of altering the Constitution, the Federation would never have come into existence. One has only to go back to the 1891 Convention debate to realise that that was precisely the position. I just want to read one or two brief extracts from that debate to indicate the position of those who attended the 1891 Convention.

At that time there were no States in existence; they were colonies and they became States when they entered the Federation. The attitude of the colonies was quite clear. It was made clear by, for example, Mr Playford, a name well known in Australian politics, and I have no doubt an ancestor of the gentleman who has been so well known to many of us in this House.


Mr Giles - His grandfather.


Mr KILLEN - I am indebted to my friend for that observation. Speaking at the convention on 8 April 1891, in Sydney, Mr Playford said:

No one in his senses will argue that it is fair that the minority of the commonwealth shall be able to make an alteration of the constitution of the commonwealth. If that is not fair, the people are quite willing to say, 'If we cannot carry a majority, first of the people, and secondly of the states, no alteration of the constitution shall be made.' I say that this is fair on the one hand to the states, and on the other hand to the people. The states have no more right to say that, simply because they have a majority, though not of the people, they will override the people, than the people, on the other hand, have a right to say, Because we have a majority of the people we will override the states.' Let us deal fairly in both cases. That is all I want. I do not care how it is brought about, so long as it is thoroughly understood that the people, on the one hand, shall not override the states, and that the states, on the other hand, shall not be able to override the people.

Of course time and events undoubtedly have swept by. The sentiment which reposes in those observations may be considered by many of us today at least to be tinged with a measure of anachronism. But the fact remains - this is the historic base from which we must consider this question - that Federation would never have been brought into being if there had been a simple deal to have 3 States or to have a majority simpliciter of electors voting. The question I ask the Government is: Why have a requirement for 3 States only? In his second reading speech the Prime Minister (Mr Whitlam) said:

The emphasis, in this day and age, should be on flexibility and on what a majority of the electors want, wherever they live, while retaining a proper position for the States.

If one accepts that sentiment and subscribes to that argument I suggest that the logical extension of it is to have a majority simpliciter. What does the honourable gentleman mean by a recognition of what he describes as 'a proper position for the States'? What is a proper position for the States? Those who founded the Federation said that there shall be four States in favour. The Prime Minister today states that there shall be 3 States in favour of any proposal. What is so splendidly virtuous about 3 being in agreement? I would suggest that in terms of sheer logic one could build a powerful and quite respectable case for carrying a proposition on a majority of electors alone. This, of course, is where the dilemma is with the States. There is no point in us putting our hands to the plough to do something which will not produce anything. If we are to plough in barren ground we will find ourselves in difficulties. That is what I suggest the Government is doing.

The great Burke reminds us that that which is not practical is spurious. I suggest to my friends opposite that this proposal is not practical politics today. Could one, for example, encourage those who sit in State parliaments - again I do not put them on one side or the other in terms of political sentiment - to say that they would have no ground for fear regarding this proposal. I shall give a couple of illustrations of the sort of fear which will be held by those who sit in State Parliaments. I take the assumption that the proposed referendum is carried. It would then mean that 3 States and the majority of people could alter the Constitution. Section 7 of the Constitution which provides, among other things, the number of senators from each State, goes on to observe:

.   . but so that equal representation of the several original States shall be maintained and that no original State shall have less than 6 senators.

I must confess, speaking for myself, that I find, in terms of sheer arithmetic, it curious that Tasmania has 10 senators and New South Wales has 10 senators. But if one puts arithmetic to one side and comes back to the Constitution, of course that was the deal. The Senate was seen as a States House, a proposition which I suggest most of us today would have some difficulty in embracing. I think that it is, by and large, a Party's House. Today occasionally one sees a flash of independence and a return to the role originally cast upon the Senate, but that is the exception; it certainly is not the rule. Imagine the sense of suspicion that would be generated in State parliaments with respect to section 7 of the Constitution. 'Carried' could well mean that 3 States - say, New South Wales, Victoria and South Australia - could disadvantage Tasmania, Western Australia and indeed Queensland.

To illustrate the sentiment that is still abroad, at the Sydney convention on the Constitution Sir Charles Court, the Leader of the Opposition in Western Australia, said to me: Killen, you have some views on the Constitution which I do not share'. This is the effect of what that gentleman said. He said: 'But you must understand our position'. Sir Charles went on to describe an incident that had happened this year in Kalgoorlie regarding the gold subsidy. He said that the miners walked down the street and when they got to the Post Office the cry of 'Secession, secession' rent the air. This situation has something of the Terry Thomas or Ealing film studio about it to most of us, but not to the Western Australians. One can understand their sense of indignation at and their sense of distrust of this proposal. I invite my friends to look at section 24 of the Constitution, which provides:

But notwithstanding anything in this section, 5 members at least will be chosen in each original State.

What if a government - I do not say this of my friends opposite - at some time in the future said: 'How absurd it is to have 5 members from Tasmania' again being persuaded on an arithmetical basis. That is where the fear comes in. I feel that the tragedy in this situation from the point of view of getting constitutional reform is that the Government has been impatient. I am sure that if the Government had waited at least until the report of the sub-committee had been brought down it would have been better. Admittedly, the committee is large, with 17 members. For many of us 17 could be a well attended public meeting, but the committee may produce something; it may not. However I think we show the members of the committee a measure of discourtesy by proceeding in this fashion. More importantly, more critically, I think the committee may have been encouraged to have seen that there could well have been some virtue in taking an overall majority and a majority of 3 States.

I do not wish to embarrass my distinguished and gallant friend from Isaacs (Mr Hamer), but he was saying to me before this debate started that at the time of Federation it was in the minds of those who attended the convention that new States would be created. The position can be made dramatically clear by taking the assumption that one more State had been created. That would have meant that 4 of the 7 States would have been sufficient to carry a proposal - four-sevenths. At the moment, as the Prime Minister observed, a two-thirds majority is needed. Is there any person seriously possessed of the idea that new States can be brought into existence? Such a scheme failed in New South Wales and even though it lingers in northern Queensland the practical prospects of having new States brought into existence seem to me to be utterly remote.

I have sought, in the matter of 18 or 19 minutes, to put my views. Every honourable member on this side of the House subscribes to the second proposal in the Bill. The first proposal has simply been swept by by time. It is quite otiose. It is the third proposal that worries us. It seeks to alter the Constitution with the consent of the majority of the people and merely 3 of the 6 States. That is not good enough. At this time I suggest that the Government, putting it in simple homely language, has put its foot in things. I think it has shown a measure of impatience which if it had held in abeyance it could well have convinced our colleagues who sit in State parliaments that we were not seeking to trench upon their position in some dramatic fashion. There is a cultivated resistance in Australia to constitutional reform. In many respects I think it is a thousand pities, but it is there and it must be recognised. The impatience of the political practitioner of today could well be the trap into which he will fall. I think it is a pity, but that is the position. The Government has now put its hand to the plough. What it will produce time and time alone will show.







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