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Wednesday, 16 February 1977
Page: 144


Mr ELLICOTT (WentworthAttorneyGeneral) - I move:

That the Bill be now read a second time.

The Government proposes to introduce 4 Bills to alter the Constitution. The first proposes an amendment to the Constitution to provide for simultaneous elections of the Senate and the House of Representatives. The second is designed to write into the Constitution the principle that a casual Senate vacancy should be filled by a member of the same political party as the one the former senator belonged to and for the balance of the term of that senator. The third proposes to amend the Constitution so as to provide for a maximum retirement age for justices of the High Court and of other Federal courts. And the fourth proposes to give electors in the Australian Capital Territory and the Northern Territory a vote in future referendums. All these proposals stem from the Hobart meeting of the Australian Constitutional Convention. Following that meeting, the Government gave careful consideration to the resolutions adopted last October. The proceedings at Hobart have given the Government some basis upon which to determine what proposals for constitutional reform have a real likelihood of being approved by the electors. The Government's view in the light of the Convention is that the 4 proposals now brought forward should find general support amongst our people.

The purpose of the Constitution Alteration (Simultaneous Elections) Bill is to alter the Constitution to provide for simultaneous elections for the Senate and the House of Representatives. Leaving aside double dissolutions, there is at present no requirement that the elections of the 2 Houses be held at the same time and since 1963 they have frequently been held on separate occasions. The reason for this is that there are different electoral requirements for the 2 Houses. The House of Representatives is elected for a period of 3 years subject to earlier dissolution by the Governor-General. The Senate is a continuing body with senators elected for 6-year terms and it cannot be dissolved except in the event of a double dissolution. But the 6-year terms of senators are staggered. Half of them retire each 3 years and elections are needed to choose their replacements.

Under the existing provisions it is theoretically possible to keep the elections for the 2 Houses in phase by holding elections for the House of Representatives whenever half-Senate elections are due. However, the exigencies of political life are such that synchronisation on this basis is difficult to maintain. Apart from the special circumstances of the double dissolutions in 1974 and 1975, elections for the Senate and the House of Representatives have been out of phase since 1963. In the 9-year period from 1963 to 1972 there were in fact no less than 7 separate national elections. If the relevant constitutional requirements are not changed there could be as many as 4 elections from 1978 to 1981 and as many as 14 elections over the 20-year period from 1961 to 1981.

This Bill accordingly provides for the Constitution to be amended so as to ensure that the elections for the 2 Houses will be brought together. It provides for half-Senate elections to be brought Unto line with elections for the House of Representatives whenever those elections may occur. Apart from the benefits of public convenience and savings of expenditure the proposal will benefit the Parliament. By ensuring that the people's will is reflected simultaneously in both Houses, it will provide a more satisfactory electoral basis upon which the government of the country can proceed.

The proposal that is provided for in the Bill is substantially the same as the one that was submitted to referendum by the then Labor Government in 1974, and on that occasion the proposal only narrowly failed to obtain the required support. The Government believes that it is desirable that the proposal be now submitted to a further referendum. The proposal is in accord with a unanimous recommendation that was made by the Joint Parliamentary Committee on Constitutional Review in its 1958 and 1959 reports. It is one, moreover, for which substantial support was expressed from both sides of Aus.tralian politics at the Hobart meeting of the Australian Constitutional Convention held in October last year.

The Bill proposes that simultaneous elections be achieved by providing for senators to hold office normally for 2 terms of the House of Representatives instead of for 6 years as at present. This Will, of course, be subject to any earlier double dissolution of both Houses that may take place under section 57 of the Constitution.

The practical operation of the proposed amendments on senators holding office at the time when the amendments take effect will, subject to a double dissolution, be as follows:

Senators whose terms are due to expire in June 1978 wil hold office until the first House of Representatives election after the amendments take effect;

Senators whose terms are due to expire in June 1981 will hold office until the second House of Representatives election after the amendments take effect.

An incidental matter to which I draw attention is that it is proposed that section 9 of the Constitution be amended to empower this Parliament, rather than the State parliaments, to make laws determining the times and places of electing of senators. This is a logical consequence of bringing elections for both Houses of the Parliament together.

The proposal will also remedy certain technical deficiencies that have been recognised to exist under the present sections 13 and 15. These were brought to attention by the Joint Parliamentary Committee on Constitutional Review in its 1959 report. More recently they have been under consideration by Standing Committee 'D' of the Australian Constitutional Convention which noted that they would be cured by the simultaneous elections proposal.

First there is a doubt as to how, after a double dissolution, the term of service of a person who has been validly chosen as a senator, but who has died, resigned or become disqualified before the division of senators into short-term and longterm classes, should be dealt with under section 13. It is doubtful whether such a person can be included in that division. This will be expressly covered by a specific provision requiring the division to be made as if the place of the senator had not become vacant. The provision will not, however, alter the existing practice and procedure for determining which senators should be long-term and which should be short-term.

The other deficiency relates to persons who are elected as senators, but who have died, resigned or become disqualified before the commencement of their terms of service. Such cases are not likely to happen often and only one case has in fact occurred. But it is doubtful whether the casual vacancy procedures are at present available in such a situation. This doubt will be removed by the present proposal because under the new provisions a senator's term of service will commence on the day of his election, rather than on the first day of July after the election as is at present provided in section 13 of the Constitution.

The proposal in this Bill departs from the earlier proposal in the following minor respects:

The 10 day limit within which writs for Senate elections must be issued will be extended to 14 days to permit greater flexibility without unduly delaying the election;

The 1974 Bill contained a transitional provision to deal with the possibility of an earlier double dissolution. That provision is omitted from the present Bill on the ground that it is unnecessary. The present Bill contains a provision rendering ineffective provisions in it relating to casual vacancies if the Constitution Alteration (Senate Casual Vacancies) Bill is passed.

The BUI contains a redrafted provision to deal with the position of a senator holding office at the time the law commences by virtue of a casual vacancy. In substance it is the same as the provision in the earlier proposal.

The earlier BUI contained different provisions for the terms of existing senators. This appears to have been because of the particular situation which existed with respect to their term when that Bill was proposed. In broad principle however, the Bills are the same in this regard.

I commend the Bill to the House.







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