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Thursday, 17 February 1977
Page: 197


Mr E G Whitlam (WERRIWA, NEW SOUTH WALES) (Leader of the Opposition) - The Opposition supports all 4 Bills. I found the arguments of the Attorney-General (Mr Ellicott) compelling, not least because I have advanced them myself in this place over 2 decades, in opposition and in government. The 4 proposals have become steadily more relevant and in 1975 they became urgent and crucial. Ten years ago when my Party was in opposition and I had just become its leader we supported the referendums put by the Holt Government. My Party will take the same attitude towards these referendums. We have not been soured by the attitude which our opponents took to the proposals which we put to the people when we were in government and which they are now putting to the people while they are in government. My Party sees no mileage in wrecking referendums. Our opponents now realise that too.

The first Bill proposes an amendment to the Constitution to provide for simultaneous elections for the Senate and the House of Representatives. This recommendation was made to the Parliament by the Constitutional Review Committee in 1958 and again in 1959. The Committee was drawn from both Houses- 8 members of this House and 4 senators. It was drawn from all parties- 6 members from the Labor Party, 4 members from the Liberal Party and 2 members from the Country Party. On many occasions in the 1960s in each House the matter was brought on for debate. An almost identical Bill was passed twice by the House of Representatives in the Parliament elected in 1972 and thus the proposal was able to be submitted and was submitted to the electors in May 1974. It was approved by a majority of the electors in New South Wales and was rejected, but only narrowly, by the electors in the other 5 States- and by the electors of the 6 States as a whole. It again was passed twice by the House of Representatives elected in 1974. It could have been submitted to the people in December 1975 but inexplicably was not. Whatever doubts there may be about the GovernorGeneral's powers in other respects, there can be doubt about his powers to submit a referendum to the electors in the circumstances which obtained at that time.

The proposal was relevant when made by the Constitutional Review Committee in 1958 in the aftermath of the double dissolution in 1951, which produced separate elections for the Senate in 1953 and for the House of Representatives in 1954. After the Committee made its report the matter was given renewed relevance by the premature House of Representatives election in 1963. The proposal clearly has increased relevance in the aftermath of the double dissolutions in 1974 and 1975.

I notice that the objection has been raised outside this House that this referendum will cost some money. In fact, if this referendum is carried, it will every 3 years save at least as much as it costs to hold the referendum. If this referendum is carried, instead of having 2 elections for this Parliament every 3 years there will be, as was originally intended, only one election for this Parliament every 3 years. That means that every 3 years we will save at least as much as it will cost to hold this referendum. If the best objection that can be made to this referendum is that it will cost money, there is no substance in any objections that can be made to this or any other of the referendums. Whatever might have been said on previous occasions, I suggest that there could be no valid objection to putting this referendum and to passing it.

One relevant issue will be solved by this referendum. It would not have been thought to have been a problem until the end of 1975. The Constitution provides that the writs for a Senate election in each State shall be issued by the Governor of that State. Until 1974 Governors of the States had always issued writs for Senate elections in their States on a date requested of them by the Governor-General on the advice of the Prime Minister. There was every justification and every precedent for an election for half the Senate at the end of 1975. The Federal Council of the Liberal Party, however, passed a resolution on 13 October 1975 calling on the Federal and State parliamentary parties and Liberals everywhere to do all in their power to prevent the Whitlam Government gaining control of the Senate. This was an instruction to non-Labor Premiers to advise their State Governors not to issue writs for an election of half the Senate if they were requested by the Governor-General to do so.

From the time of the first Senate election State governments of every political complexion had automatically issued Senate writs as and when requested by the Federal government. Prime Minister Menzies called separate elections for half the Senate in 1953 and 1964. Prime Minister Holt did so in 1967 and Prime Minister Gorton in 1970. Those elections were held at a time chosen by the Federal government of the day. Moreover, on each occasion the Prime Minister announced his intention to Parliament-to this House- before advising the Governor-General to request the State Governors to issue the writs. Courteously, but imprudently, I did not do so in November 1975. It is quite clear that it is possibleit has always been clear that it has been possible- for State governments to advise their Governors to issue writs for a Senate election at a time when the State governments see fit, irrespective of the views of the Federal government. The Constitution says that elections for the Senate can be held at any time within 12 months before the elected senators take office. To take the current situation, under the Constitution Senate elections could be held on any Saturday this July or at any time up to the end of June next year. The elections could be held on different Saturdays in every State.

A State government may feel that the candidates of its party may not fare as well on the date proposed for a Senate election by the Federal Government via the Governor-General and the State Governor as they would fare on a later date and may therefore advise the State Governor to issue the writs for a later date. A State government may feel that the candidates of its party might fare better at an earlier date than that which the Federal Government is expected to request. The State government might therefore advise the State Governor to issue the writs before there is a Federal request. A State government may even feel that its party's candidates may not secure a majority at any election before the time when the terms of retiring senators expire and may therefore not issue the writs at all and thus, as the Constitution permits, leave the positions vacant.

These 3 situations which I have stated are all possible as the Constitution stands at present. They would be a travesty. They would have been unthinkable before the last quarter of 1975, but the proposition was made by the supreme organisation of one of the two great political parties in this country in October 1975. It is clearly an unsatisfactory situation which should not be allowed to continue. This referendum will permit this Parliament to pass laws concerning the dates upon which Senate elections can be held. One would assume that the Parliament would only pass an act which said that the dates would all be the same. If this referendum is passed, as in this House I conceive everybody would now proclaim and advocate, we shall have an orderly succession of elections for both Houses of this Parliament at the same time. It will be a more rational, a less expensive and a more contemporary procedure.

The second Bill, the Constitution Alteration (Senate Casual Vacancies) Bill, 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 to which the former senator belonged at the time of his election and for the balance of the term of the former senator. Here again this proposition was accepted by all seven governments in Australia as far back as 195 1 on the first occasion a casual vacancy occurred after proportional voting was introduced in the election of the Senate. After that time every casual vacancy until 1974 was filled by a State government and then by a State parliament by a man or a woman belonging to the same party as the former senator, however the former senator ceased to be a senator.

The Joint Committee on Constitutional Review in 1958 and 1959 unanimously endorsed that principle. It has been endorsed ever since by everybody who has considered it. It was in fact endorsed by our own Senate early in 1975. The question was regarded as academic until 1975. The events of that year are in the minds of all members of this Parliament and on the conscience I would trust of all members of the Government parties. It can no longer be said that the question is an academic one because in 1975 the convention was twice dishonoured. I believe on this issue, as on so many issues which arose in 1975 in this Parliament or on the part of persons appointed by the Government responsible to this House, the words of the honourable and learned member for Moreton, the present Minister for Defence (Mr Killen) are succinct and apposite. He said:

If in their anxiety for power men lose sight of great principles they put at risk the safety of their institutions.

Accordingly it is gratifying that this Bill is being put forward. I believe that every member in each House of any principle, every member who has regard for the safety of our institutions, will vote for the Bill and outside will give it his support. The Bill in fact is in the form moved by my colleagues at the Hobart meeting of the Constitutional Convention last October. The majority of the delegates to the Convention supported an amendment moved by Sir Charles Court which would have excluded the operation of the convention and of the proposed Bill whenever a senator ceased to be a senator other than by death or incapacity. A few at the Convention even opposed Sir Charles Court's amendment as well as the original motion which now forms the basis of this Bill.

At the Convention Sir Charles Court accused me of denigrating the Senate. I was at some pains to dispel any such notion. Since at the Convention my remarks on this issue seemed to receive more support than my remarks on any other issue perhaps I may recall them to the House. I suggested then that Sir Charles Court, not I, was denigrating the Senate and senators by his amendment because he was saying in effect that senators even if well-suited and qualified should not become judges, ambassadors, high commissioners or administrators. I did not and I do not accept that proposition.


Mr Donald Cameron (GRIFFITH, QUEENSLAND) - Vince Gair is a good example. He was an excellent ambassador.


Mr E G Whitlam (WERRIWA, NEW SOUTH WALES) - I knew that somebody would make that interjection because it was made at the Convention by a fellow Queenslander and dear friend of the honourable gentleman who interjects, a Mr Frawley, MLA. I believe my riposte was apposite:

The interjection came from a Queenslander. The interjector would be worthy of being a member of the Legislative Council, the upper House of Queensland, which, of course, expired more than SO years ago.

I asked the Convention to draw a parallel with State governments. I said:

It is not so long ago that Sir Charles Court's own party in the Victorian Parliament found there was no worthy member among them in the Legislative Assembly to succeed Sir Henry Bolte as Premier. They went to the Legislative Council and demoted the honourable R. J. Hamer, MLC, and he became Premier. Not only that, there was no adequate or worthy Liberal in the Legislative Assembly of Victoria to become Deputy Premier so they demoted the honourable Lindsay Thompson, MLC. In my party in the New South Wales Legislative Assembly there is a host of talent, but even so Mr Wran, MLC, was demoted to the Legislative Assembly.

I come back to Federal Parliament. Not long ago there was no adequate or worthy Liberal MHR to be Prime Minister. Senator Gorton was demoted to the lower House. Under Sir Charles Court's amendment, the best man in the Liberal Party, as Senator Gorton undoubtedly was, could not have become Prime Minister. Are we to denigrate senators by saying that even if among them is the worthiest man to become Prime Minister of our country he cannot be appointed to that post? Of course he should.

I continue with my quotations from the Convention:

Regarding Judges, are we to say it is acceptable for Mr Higgins, MHR, or Mr Isaacs, MHR, or Sir Garfield Barwick, MHR, to be appointed to the High Court, or Mr Latham, MHR, to resign with the prospect of being appointed on the High Court, or Mr Joske, MHR, or Mr Nigel Bowen, MHR, to resign to be appointed to other courts, but worthy lawyers in the Senate are never to be appointed to the High Court?

At the Constitutional Convention I said:

I thought that Senator Spicer was an admirable appointment as the founding Chief Judge of the Australian Industrial Court and that Senator Murphy would prove to be the Oliver Wendell Holmes Junior of the Australian High Court. I am pleased I have such universal approbation for my assessment of these matters.

I referred to the appointment of Senator Dame Annabelle Rankin as High Commissioner to

New Zealand, which was an admirable appointment. Her term was extended by my Government. She had the complete trust of Mr Kirk and myself. During the period that she was a senator one member of this House had been appointed High Commissioner to New Zealand, Dr Donald Cameron; three had been appointed High Commissioners to Britain, Sir Thomas White, Sir Eric Harrison and Sir Alexander Downer; and another had been appointed High Commissioner to Malta, Sir Hubert Opperman. From this House 7 members have been appointed ambassadorMr Spender and Mr Beale to the United States, Mr Gullett to Greece, Mr MacKinnon to Argentina, Uraguay and Peru, Mr Roberton to Ireland, Mr Freeth to Japan and Mr Fairbairn to The Netherlands. If they had been senators, according to the majority view at the Convention, they could not have been properly appointed. Sir Joshua Francis and Mr Roger Dean were appointed Consul and Consul-General. Mr Dean, Mr Chaney and Mr England have been appointed Administrator of the Northern Territory. The best a senator could ever be was Administrator of Norfolk Island-Senator Wordsworth. Above all, Mr Hasluck became Governor-General. If he had been a senator, under Sir Charles Court's amendment, it would not have been a proper appointment. At the Convention I said:

If the best man or woman for any of these jobs is to be found in the Senate or the Legislative Council, he or she should be eligible format appointment.

I am glad that my remarks which did not persuade the Convention have now persuaded the Government. This Bill is worthy of our support.

The third referendum Bill proposes to amend the Constitution to provide a maximum retirement age for justices of the High Court and of other Federal courts. This might not have been regarded as a matter of great moment when the judges affected consisted only of those on the High Court, of whom there have never been more than seven, or even when the first Federal court, the Federal Court of Bankruptcy, was appointed. No Chief Justice has died in office but they have all retired in the fullness of age. Griffith retired at 74; Knox at 67; Isaacs retired at 76 and lived to 93; Gavan Duffy retired at 83 and lived to 88; Latham retired at 75 and lived to 87; Dixon retired at 78 and lived to 86. The present Chief Justice is already 73. Of the puisne or associate justices, only three have retired before they reached 70-Evatt at 46, Williams at 69 and Kitto at 67. Powers retired at 76, Starke at 79, Rich at 87, Webb at 71, Windeyer at 72 and

Mctiernan at 84. Few occupations appear so calculated to preserve one's mental powers and

Physical stamina. The first Federal Judge in Bankruptcy Mr Justice Lukin, died in office in 1944 at the mature age of 76. He had been appointed a Federal Judge after retiring from the Supreme Court of Queensland. These statistics might be notable but would not be regarded as necessarily justifying amendment of the Constitution. Nevertheless, now there is a large number of Federal judges. There are 27 justices of the Family Court of Australia, all appointed in the last year and a few months.


Mr Ellicott - As at today that is the number.


Mr E G Whitlam (WERRIWA, NEW SOUTH WALES) -As at today, yes. I have no doubt that we will have to amend the regulations to permit an extension beyond 30.


Mr Ellicott - We do not know what the position will be by the end of next week.


Mr E G Whitlam (WERRIWA, NEW SOUTH WALES) - We will get the Bill through before the appointments are made. The Federal Court now has 19 judges. Accordingly, this is now a matter of real moment. It is one of those matters in which the position could be altered by a change in opinion on the High Court. High Court and Federal judges hold office for life because of a decision given in 1918 that because at the time our Constitution was drawn up judges in England held office for life, therefore, judges mentioned in our Constitution, which is a British Act of Parliament, held office for life. The High Court could alter its interpretation. It has altered its interpretation of matters which have been undisturbed for longer than the period between 1918 and now- for instance the corporations power, the most fertile of all the powers, in the light of Attorney-General Hughes's admirable and successful advocacy 5 years ago.


Mr Ellicott - You do not mention his junior.


Mr E G Whitlam (WERRIWA, NEW SOUTH WALES) - I believe that at that time the honourable and learned gentleman gave immense service to his country and I was one of the first to applaud it. Clearly it is wise to put this amendment to the people at the same time as the others. It deserves support. I would imagine that there can be no rational opposition to High Court justices and other Federal justices having a retiring age, as all other judges in Australia have long had, applied to them.


Mr Donald Cameron (GRIFFITH, QUEENSLAND) - You made an excellent speech on this subject in 1 955.


Mr E G Whitlam (WERRIWA, NEW SOUTH WALES) -That is quite true. I am indebted to the honourable gentleman for his second interjection. As a matter of fact, I was paid the immense compliment on that occasion by the then Prime Minister, my most distinguished living predecessor, coming into the House to hear me and asking me out for appropriate hospitality afterwards.

The fourth Bill proposes to give electors in the Australian Capital Territory and the Northern Territory a vote in future referendums. This is surely an irrefutable proposition. It deserves our support also. There are three points I might make on it. It is clear, from the batch of Bills that we are debating, that it is likely that the Northern Territory, when it becomes a State, will have a functionary named a Governor, either appointed or elected. At least he will not be a British official, as all present State Governors are, bearing a commission signed by the Queen of Britain and countersigned by the British Foreign and Commonwealth Secretary.

Perhaps the second point is that this may not be the last amendment of the Constitution which will bear upon the Territories. On 17 October 1975, in the case of WA v. the Commonwealth, the High Court by a majority rejected suits against the Commonwealth brought by Western Australia and New South Wales challenging the validity of the Federal electoral legislation, and by Queensland seeking a declaration that the Senate (Representation of Territories) Act was beyond power. Victoria intervened in support of the objectors. We therefore had at that time the 4 conservative governments in Australia- mind, as recently as 1975- objecting to the Territories having senators.

More recently on the first of this month in the case of the Attorney-General for New South Wales at the Relation of McKellar v. the Commonwealth, and Others the States of Western Australia and Queensland again raised, but did not argue, their earlier challenge to the right of the Territories to have' senators. The Chief Justice, still sulking from his rebuff by his brethren in the earlier case, invited a further challenge.

It is important that we should have this referendum put to the people- at this stage it can only be put to the electors of the States- and let the electors of the States say that when there is a referendum the electors in the Territories also should be able to vote on those referendums. This will discourage these challenges to the people of the Territories having representation in the Senate or even in this House.

The third point, which I raised at the Constitutional Convention, concerns Australian citizens in the overseas Territories of Norfolk Island, Cocos Island and Christmas Island. {Extension of time granted) I thank the House. I speculated that Sir John Nimmo as Royal Commissioner on Norfolk Island might recommend that the Australian citizens of Norfolk Island should be given a vote for this House. In fact, since then Sir John 's report has been tabled and published and he did so recommend. I also vouchsafed the opinion that in respect of Cocos Island and Christmas Island there are powerful international arguments for giving votes for the House of Representatives to the citizens who reside there.

This Bill, if carried by electors of the States, will permit the Australian citizens in those overseas Territories-I imagine honourable members and honourable senators and the great majority of Australian citizens everywhere, including in those Territories, would wish them to remain Territories of this country-to vote in any future referendums. So I suggest that this fourth Bill also deserves our support.

All 4 Bills deal with issues of real importance and growing urgency. I have mentioned the desirability of amending the Constitution to permit this Parliament to set a retirement age for future federal judges, other than the justices of the High Court, and to make constitutional provision for retirement at 70 years of age for justices of that court. There is a necessity to amend the Constitution to deal with the other 3 situations where the Constitution is explicit or convention has been dishonoured. In these cases change is required. There is no way that the High Court can interpret the present Constitution to permit the changes sought by these other 3 Bills.

It will be noted that none of the Bills deals with the legislative powers of this Parliament. I must confess that I have become reluctant to ask the electors to expand the legislative powers of this Parliament. I realise that the High Court has usually been more readily persuaded to allocate legislative powers between the Federal and State legislatures. None of the Bills, for instance, even deals with the interchange of powers between the Federal and State Parliaments although that was suggested in 1973 by the conservative governments in New South Wales and Victoria and applauded at the' Sydney meeting of the Constitutional Convention by those States and by the representatives of South Australia, Western Australia and Tasmania, and was not even opposed there by the representatives of the Queensland Government.

None of the Bills deals with the structure of State legislatures, although in respect to democratic safeguards their constitutions except possibly South Australia and in one respect- terms of office- N.S.W. such safeguards are becoming more necessary. The Bills deal with the structure of the Federal legislature and the Federal judiciary. They in no way affect the States except where the States have intruded into matters which concern this Parliament, to wit, casual vacancies in the Senate and the issue of writs for the Senate. The Bills conspicuously avoid giving an ounce of provocation to any State party. The present Government has abandoned earlier proposals to ratify actions of the Senate and the Governor-General in October and November 1975. The present Opposition has refrained from dilating on some remarkable conversions on the issues and from speculating on the Government's motives in deferring the Senate elections.

The whole tenor in which the matter has so far been dealt with in this House, would, I believe be calculated to secure a rational and relevant approach to matters of real relevance and increasing urgency. My Party hopes that the people will support these 4 referendums. Whatever government the people hereafter elect in this House of Representatives, whatever members the people hereafter elect to this Federal Parliament, the Federal Parliament and Government will be able to operate in a more rational, contemporary and constructive way than the Parliament and governments have been able to operate hitherto. The Bills should be supported in the Parliament; they should be supported outside the Parliament I do not believe that any Party in Australia can gain anything from the rejection of any of these Bills.







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