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Thursday, 17 February 1977
Page: 202


Mr SINCLAIR (New England) (Minister for Primary Industry) - There are few occasions when I rise in this House following the Leader of the Opposition (Mr E. G. Whitiam) that I find myself in substantial agreement with most of what he has said. This is one of those rare occasions. There are, of course, in the electorate at large a good many divided views about the character and the manner of the Australian Constitution, in terms both of its relationship to individuals and of the necessity for change. Emotions are very easily generated when we speak of altering the Australian Constitution. Those of us on this side of the House certainly believe that the Constitution was the basis behind which the survival of democracy was achieved after 1975.

There are still many people who look apprehensively at the Constitution, believing that the inherent rights that our forebears, who in some way they believe were more wise than those of us who succeeded, wrote down so many years ago should inevitably survive without modification. I am quite sure it was never in the minds of those who wrote the original Constitution that that should be so. The very inclusion of section 128 of the Constitution indicates that there was an intention to provide for change and for circumstances of change which it was expected would follow perhaps much the same consultative course as the original Constitution conventions or, if not in that way, then in the submission of questions specifically to the people.

Referenda in Australia have not had a very happy history. So few have been passed. There is no need for me to repeat this afternoon the abysmal record of success of referenda. When I say abysmal', it does not necessarily mean, because a question goes to the people, that it needs to be supported by the whole Australian electorate. Obviously there are differing views between the large States and the small States and there are different ideological views among the people of Australia as to the substance of the questions. In the questions that are to be submitted to the Australian people under this legislation there are 2 questions almost identical with questions that have already been submitted in earlier referenda and rejected, but they are not entirely identical and circumstances are different. That is quite important.

The first and most important thing I want to say about the submission of these questions to the people is that there seems to be almost an apprehension in the minds of some people and a belief that there should be no reference of questions to the people. I believe that to be quite false. It is essential that the Australian people accept that there are legitimate occasions when they should be entitled to cast their views on suggested change, particularly change to the Constitution, which written as it is prescribes so much of the terms and conditions within which our Federal Government can operate. There is also to be a poll on a national song. It is not part of this measure, but the necessary legislation is intended to come before the House at a later date. Again this will be a very worthwhile way by which the people of Australia can cast their views on a matter of significant public concern. I mention it because there should be no concern in the minds of those around Australia who are apprehensive about the character of these referendum proposals. There is nothing wrong in their being asked to vote. It is a necessary part of our democratic way.

The second thing I want to do is look at the way by which these 4 questions come before us this afternoon. They have not been submitted just as a matter of a government decision. When two of these matters were submitted last to the Australian people in 1974 they had not emerged as a result of the Constitutional Convention, although the Convention had its first meeting in Sydney on 3 September 1973. A good deal of discussion was still underway. There were two subsequent sessions of the Convention. The one in Melbourne was not very well attended but the other two in Sydney and Hobart, the Hoban meeting being late last year, were attended by representatives of all parliaments, by representatives of both federal and State levels of government, by representatives of local government and by representatives of both sides of both chambers in those States where there are 2 chambers. On those 2 occasions there were two very widely represented groups of people. There were not just lawyers, people who represented only a particular profession within the community, but people from all stratas of society representing local government, State government and Federal government, Federal Parliament and State parliaments. They came together and they met.

Something like 20 resolutions were affirmed by the last session of the Australian Constitutional Convention staged at Wrest Point in Hobart from 27 to 29 October. The 4 questions which are the subject matter of these 4 Bills emerged as a result of the very substantial, near unanimous, agreement on these 4 proposals. Some slight modifications have been made to the form of words. Perhaps I might refer to those directly, although the Leader of the Opposition has already referred to them. For example, in the casual Senate vacancy instance, as a result of an amendment moved by the Premier of Western Australia there was a modification of the original question. This modification, referred to by my colleague the Attorney-General (Mr Ellicott), flowed from what was seen to be an almost impossible task of writing into some legal form of words a condition known as bona fide illness, as it was described in the amendment. In any event, in my opinion it is far more desirable that if the convention is to exist it should exist across the breadth of casual appointments rather than in a narrow sphere only.

These 4 questions emerged not just as a product of a decision by this Government, not because two of them have been before the people before, but because the Australian Constitutional Convention on three successive occasions led towards an acceptance of these 4 resolutions, which was achieved finally at the Wrest Point convention. In that sense there needs to be a recognition by those who might question these referenda that throughout the country there seems to be a universal accord that this type of deliberation on the Constitution is worth while; that if there is to be constitutional change it should not be just for the fulfilment of the political aspirations, desires or objectives of the Government for the time being in Canberra but it should be something that has evolved from the consultation at the Constitutional Conventions. I think the authenticity of the origin of these questions must be accepted. The fact that they were so significantly supported at the Convention adds further weight to the case for referring them to the people and I hope they will receive the support of the people.

I would like briefly to turn to each of the 4 questions. There are two which I believe must be accepted by the Australian people without controversy. The first is the question of alteration of the Constitution so as to provide for a retiring age forjudges of Federal courts. It really brings the circumstances of the judiciary into parallel with those of other members of the community. While there might be some question as to the age that is to be provided for, the age decided on is again a direct product of the Constitutional Convention. It was felt that the age of 70 years was appropriate. Of course many people over that age can still have full possession of their mental faculties, but the incredible record of longevity of members of the Federal judiciary read out by the Leader of the Opposition indicates that normally on retirement members of the High Court and other Federal courts have been considerably older than people in other professions.

It is significant that we look at the form of this proposal. We should realise first that no change is to be effected on any present incumbent of the High Court or other Federal courts. Hence the suggestion by the Leader of the Opposition that perhaps if there are Family Court judges or other judges to be appointed it might be desirable for the appointments to be delayed somewhat or the passage of this Bill accelerated. It is necessary that we recognise that neither this Bill nor the acceptance of this question at a referendum will in any way affect the incumbency or term of office of those who are currently Federal court judges or High Court judges. Nor will it affect the appointment and continuation in office of any present incumbent of Federal courts or the High Court subsequently appointed to a more senior position either by transfer from a Federal court to the High Court or elevation from the Federal courts or the High Court to the position of Chief Justice. There is no suggestion that in any way the independence of the judiciary is being threatened by this question but a more rational and generally acceptable age of retirement is being set. There could and should be no opposition to that question.

The second question which I think is equally likely to be accepted without criticism, although I know that there were some people at the Constitutional Convention in Hobart who offered some views upon it, is the question of altering the Constitution so as to allow electors in Territories as well as electors in the States to vote at referendums on proposed laws to alter the Constitution. It is true that there has been a question submitted to the Australian people before which included substantially the terms of this question. However, it also needs to be recognised that when last submitted there was another condition added, and that was that the present requirement, to which reference was made in the second reading speech of the Attorney-General, that there be not only a majority of electors but also a majority of electors in a majority of States before the Constitution be changed, would also be modified. In this instance the electors in the Territories are to be included only in the determination of an overall majority. To that extent surely there can be no maintenance of a position that those who are residents of the Territories are given something less than the full status of Australian citizens. I believe that this of itself is sufficient reason for unanimous support for the second question.

The other 2 Bills come in categories where there is without doubt some concern in some sectors of the community. However, in each instance there needs to be an analysis of just what is contained in the proposals before a rash or precipitate judgment is reached as to the wisdom of these changes. Certainly the question of altering the Constitution so as to ensure that Senate elections are held at the same time as House of Representatives elections has been before the Australian people. In 1974 the Australian Labor Party Government submitted that question along with 3 others- the mode of altering the Constitution to which I referred a moment ago, democratic elections and local government questionsto the people at the same time. At that time supporters of the present Government parties opposed the constitutional change for several reasons. The predominant one was that it lay as part of a total package, several elements of which we found totally unacceptable. I think it important that in looking at the package as it was then submitted- the precipitate way in which it emerged before consideration by the Convention, without the ratification or the backing of the Convention- we realise the questions were put as matters which it was felt by us and, I suspect, by many Australians, for the vote indicated that that was so, were designed to change the Constitution to the advantage of the then Government.

In this instance it is a question which is being submitted, certainly as a result of a resolution of the Convention, certainly in isolation, and I trust that it can be considered, presented and examined as such. It is also presented because, as I see it, there were matters which happened in 1975 which, if viewed in their context and if there had been no double dissolution Bills before the Houses of Parliament at that time, might well have put the Senate in a position where it could have forced the House of Representatives to an election without itself being required to do so. In other words, the simultaneous elections question which is now going to the people will ensure not that the powers of the Senate will be reduced in any way, but that they will be enhanced. So if the circumstances arise where the members of the other chamber, exercising what I believe to be their correct and proper power, decide that a particular financial measure should be rejected and wish to pursue that resolution they will not be in a position where the Government, in the majority in the lower House, will go to the people on its own but where the members of both Houses must submit themselves to the will of the Australian electorate. In that climate I believe that there will be no reduction in the power of the Senate but rather an enhancement of it.

As to the simultaneous character of the elections, of course it will mean that there will be fewer elections. In his second reading speech the Attorney-General listed the frequency of probable future elections. If we cost those elections and if we think of the circumstances of the double dissolutions in 1974 and 1975, of the 7 separate national elections from 1963 to 1972 and the prospects for the next 20-year period, there is no doubt that there will be a very significant saving in terms of money to the Australian people. But more significantly I believe that there will be fewer elections and therefore whichever Party may be in government will have a proper opportunity to govern and carry out its proper duties. So I submit that the simultaneous elections question differs in its presentation and its reasons from the earlier question. I submit therefore that it is to the advantage of the Australian people, that it is to simplify the processes of electing members of the Federal Parliament and that therefore it is a question which should be supported unanimously.

The final question is again a matter of some controversy. I refer to the question of filling casual vacancies. The Leader of the Opposition made a remark about the convention being twice dishonoured in 1 975, a contention which I do not completely endorse. I believe that, according to the Constitutions of each of the States, they must be able to set their own terms and conditions for exercising their proper functions. One of their functions under the existing Constitution is to nominate through the State Governor the person who is to fill a casual vacancy. This question will ensure that there is not just a verbal convention, an unwritten convention, but that within the Constitution the circumstances in which casual vacancies will be filled in the future are set down. The persons filling casual vacancies will still be nominated by the Governors of a State, not by the Governor-General as was suggested in some earlier proposal advanced by the Labor Party. I believe it is necessary when filling casual vacancies that we recognise that there will be a prescribed procedure which will enable the State governments to determine the manner by which they will select persons to fill casual vacancies, and which will ensure that the rights of the States are preserved, as it shall be certified by the Governor of the State and not by the GovernorGeneral, and that Governor of the State will then be able to submit the name and the person will be appointed in accordance with a constitutional requirement which I believe will validly set out a fit and proper procedure.

I believe that each of these 4 questions should be submitted to the people and endorsed by the Australian people. Constitutional change is not something on which we should embark lightly, but when it has been ratified by successive Conventions and there has been an almost unanimous acceptance of those resolutions it is necessary that the Australian people have the chance to vote and endorse that decision.

Mr DEPUTY SPEAKER (Mr Lucock)Order!The right honourable member's time has expired.







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