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Wednesday, 21 November 1973
Page: 3618


Mr JACOBI (Hawker) - I support the Bill. After listening to honourable members opposite speak to this proposed alteration and to the other proposed alterations to the Constitution one sees that what they have said certainly reflects a completely negative approach. Their speeches were clouded in the usual crop of cliches and without substance. When honourable members opposite talk of constitutional reform they obviously mean that they are all for reform providing it changes nothing. In this context what they obviously mean is that we ought to put the clock back by strengthening the States at the expense of Commonwealth power. Maybe we should and maybe we should not, but before we limit the discussion of constitutional reform to what the rights of the States ought to be, surely we should debate whether we want to preserve the federal system at all. If we want to preserve the federation in something like its present form, we should at least spell out why we want to do that.

I was interested in the remarks of the right honourable member for Lowe (Mr McMahon) and of the honourable member for Moreton (Mr Killen), particularly as they related to clause 2(c) of the Bill. One claimed that the passing of this legislation would result in the abolition of the sovereignty of the States, and the other referred to destroying the States and the powers they possess. The honourable member for Moreton quoted from Quick and Garran on this aspect, and I shall do the same. In discussing the concept of federal and national elements, this is what Quick and Garran had to say:

Using 'federal' in its primary sense, the general difference between the federal and national elements of the Constitution of the Commonwealth may be thus defined. Those provisions are federal . . . which regard the people as inhabitants of States, separate and independent, within their respective spheres; . . . national which unite the people . . and constitute them members of a common political group . . which regard the people as the principal- source of supreme authority within the Commonwealth.

Then they dealt with the Federal Convention of 1891, and one assumes that that is what the honourable member for Moreton referred to. They said that the Federal Convention was not a body composed of delegates elected by the people of Australia and that in the ratification of the Constitution of the Commonwealth there was an independent referendum in each colony. Then they said that the Constitution was, therefore, not adopted by the people of Australia, that was to be voting 'en masse' or at large, or in their aggregate capacity, but by the people of the future States voting in each State as inhabitants thereof. Then they said that if a general vote had been accepted as a test, the Constitution would have been triumphantly adopted on 3 June 1898. They concluded by saying this:

The Commonwealth, however, is not constituted merely by a union of States; it is something more than that; it is also a union of people.

That is more relevant to this discussion than the arguments advanced by the honourable member for Moreton.

The other question that has been raised is the inflexibility of the Constitution particularly section 128. I was interested in what was said at the Constitutional Convention and in the reference 'by the honourable member for Stirling (Mr Viner) to Sir John Cockburn, a famous South Australian. When dealing, in effect, with the referral provisions - they are apposite to the matter before the House - this is what Sir John Cockburn said shortly after federation:

Constitutions tough, yet tractable, give the best promise of long and healthy life, the most deadly foe to organised growth is the atheroma which cannot yield without rupture.

That typifies the Opposition's attitude. The alterations sought in this Bill are a constructive attempt to overcome the inherent bias towards rigidity in the existing provisions, and the apparent, almost unnatural, reluctance towards change endemic in the Australian electorate, while at the same time it reserves a role for the direct expression of the popular voice. In my view, the question of the procedures for constitutional amendment is the most fundamental issue. If this alteration is not supported either by this Parliament or by the people, all the rest is mere talk. Basically, section 128 of the Constitution provides that an amendment of the Constitution requires the assent of an absolute majority of the members of both Houses of Parliament, of a majority of electors in a majority of the States, and of a majority of electors overall. The requirement of approval by a majority of electors in a majority of electors in a majority of States is too stringent because this means that majorities in four out of the 6 States must approve - in effect, 2 States can veto the proposal.

I am very pleased to note that the Liberal Party at least will adopt and endorse an extension of the franchise to the Territories. I noted the remarks of the members of the Australian Country Party in this House, but I am inclined to think that they are sycophantic because what they say in this House will be diametrically opposed in the other chamber. It will be interesting to see whether the members of the Country Party in the other place confirm the view that has been expressed 'by members of the Country Party in this House.

I will not refer again to the 2 alterations sought to section 128 of the Constitution because they were dealt with in the second reading speech and by a majority of the speakers in this debate, but I shall make 2 observations on the proposed alteration. It retains the 2 basic 'principles embodied in section 128, and I think everybody would agree that they are worthy of retention. The first is that no ordinary, but an absolute majority, of the members of the Houses of Parliament is required to amend the Constitution; secondly, that the people have a voice in altering their fundamental law; and thirdly, some reference is made to the States, although it is submitted that this latter principle should at least partially give way to an approach which primarily considers the electorate as a national entity.

I have said this previously, and I will repeat it: It is paradoxical to find that Switzerland, the country whose procedures most resemble Australia's - that is, an amendment passed by Parliament, by a majority of votes, in a majority of cantons and a majority overall - has had, in contrast to Australia, the greatest number of constitutional amendments. This probably indicates that it is not so much the Australian system but the Australian electorate which is inherently conservative. After all, with a Constitution so manifestly inadequate, popular reticence towards change cannot be merely an expression of satisfaction with the status quo. This alteration is critical. and it needs to receive the wholehearted support of all sections of the community if this nation is to progress in a constructive and meaningful way. If I may use a literary comparison, this innovation is to me as gruel was to Oliver Twist - I accept it but I intend asking for more. I can only reiterate the argument I advanced at the recent Constitutional Convention.

It is admitted on all sides that our Constitution needs considerable amendment. It is no longer conducive to efficient, effectual or good government. Unless as a first step we can change the procedure for amending the Constitution, and unless we can make the procedures more flexible and positive, our chances of amending the rest of the Constitution are extremely slight indeed. At least we, as a Government, have taken the initiative for the first time in a quarter of a century to have public discussion on the Constitution and to give the people an opportunity to vote upon it. This stems undoubtedly from the recommendations of the Joint Committee on Constitutional Review in 1958 and 1959. One of the reasons for scepticism stems undoubtedly from the fact that there has been no real preparation on a large-scale to determine public opinion on changes to the Constitution. Another reason is the intransigence of both the voting public and the Opposition parties.

We stand by, year after year, while vast amounts of taxpayers money are wasted on sterile disputes concerning the extent of Commonwealth and State powers while the taxpayers of the Commonwealth have to listen to Australian and State governments passing the buck back and forth. We stand by, year after year, while commercial interests play off one government against another to their own advantage. Why should we assume that we are stuck forever with a particular solution to a particular problem, a solution which was aimed at by our forefathers over 70 years ago? They had a definite objective in view, and that was the social and political integration of 6 communities into one community, for the common good of all. Admittedly they did not have much to go on. Federations are two a dollar these days but they were not that cheap in the 1890s. America and Canada were about the only two extant examples. To their credit they came up with a pretty good Constitution for their time, but surely they would have been the last people to argue that the result of their combined labours was to fix a codification of constitutional law which was to remain inflexible, immutable and binding upon all generations for all time. If that is what the Opposition contends in relation to the proposed change, it is utterly preposterous. The founders of Federation certainly would not have subscribed to that view. I fear that the chances are that the more attempts that we make at amendment under the present onerous section 128 procedures the more negative results we will get. Regrettably voting 'no' will become a sort of reflex action in the Australian electorate. It will become the norm and successive amendments will become harder to pass. Therefore it is imperative that we satisfactorily alter section 128 of the Constitution before we do much.

I have been asked to restrict myself to 10 minutes speaking time and I will comply with the request. Let me repeat what I said last May in a debate dealing with our offshore legislation because I believe my remarks then are equally pertinent to this debate. I also want to make an observation on the Opposition generally. Having listened intently to Opposition speakers I am reminded of an assessment I once heard of the Anglo-Saxon electorate in South Africa. It was said that they talked progressive, voted liberal and hoped to God that the conservatives got in.


Mr Viner - It is not a bad philosophy.


Mr JACOBI - It is a very good turn of phrase. It is very apposite. Unless the Parliament and the people support the Government's attempt to amend the process of amendment, then you are just so many men hoping to God that nothing out of the ordinary will ever happen. Let me conclude by repeating what I said last May. I said that our federal system may be looked at in 2 ways. It may be reviewed either as a loose confederation of quasi-independent States or as a national federation. I do not apologise for voicing it as being the latter. If I may paraphrase something which the honourable member for Moreton said on another occasion, I am an Australian first and a South Australian after. It is about time that we acknowledged that our Constitution should no longer be used as an obstructive document which can be quoted by any partisan politician for his own purposes. Our Constitution must be clear, dynamic and forward looking. It must in my opinion serve the purposes of an Australian federation of States and not preserve a confederation. If our Constitution cannot serve us in that way, then it ought to be changed. If the law exists to frustrate common sense, then the law must be changed. I commend the constitution alterations to the House.







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