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Thursday, 17 February 1977
Page: 219

Mr NEIL (St George) -The 4 Constitution alteration Bills are extremely important measures. It is a good thing that the major political parties are supporting these Bills. It is a good thing that the community can see in the House a constructive debate on this occasion, with honourable members from both sides making valuable suggestions. The Government is to be congratulated for putting this legislation before the people following the Constitutional Convention. Indeed it was almost automatic for the Government to put it before the people. These are matters for the people to decide. I support all the Bills in the circumstances although there are one or two matters I wish to draw to the attention of the Attorney-General (Mr Ellicott) so that they may be looked at before the referenda are held. The honourable member for Hindmarsh (Mr Clyde Cameron) referred to an ulterior motive on the part of the Government. I reject that suggestion entirely and I am quite sure that the honourable member is not serious. He would not lend bis support to measures which had any ulterior motive.

He spoke about the elections next year. It would not matter at all if the Government called for a half Senate election in May next year followed by a House of Representatives election in December. It would be quite a reasonable thing to do if this referendum question had not been put before the people. I want to refer firstly to the referendum concerning representation of the Territories. This is an excellent piece of legislation on which to base a referendum. I cannot really understand those objections that are put every now and again, that persons in the Territories should not have the right to vote for or against certain proposals at a referendum. Subsequently there ought to be a referendum to solve some of the difficulties that may come about by the recent High Court decision involving representatives of the Territories in the lower and upper Houses. But that is another matter and no doubt it will be brought forward at a later time.

The legislation concerning the referendum on retiring ages for judges is very welcome and would no doubt be supported throughout the community. I do not believe that the basis for the legislation is the diminished power, knowledge or capacity of present or even past High Court judges. One's mind does not necessarily lose its capacity with age. In many cases it improves. The important point is that the judiciary must to an extent be remote from the community. It must objectively apply the law and look at principles of law. But it cannot be entirely or substantially remote from the community, and an age limit should be determined so that the community can have confidence that current-day sets of values, which often conflict and which are varied, are within the general realm of experience of the currently sitting judges. In some cases a judge may retain full capacity of mind, full general mental knowledge and vigour but be out of touch with much of what is occurring in the community if he be very elderly.

There is one thing I would urge upon the Attorney-General and that is that we do where possible use retired judges on royal commissions and other appropriate inquiries because they can bring a wealth of experience and knowledge to this area of public life. I would also urge that we give consideration, in view of the importance of the High Court and in view of its present role in our society, to what I believe is an overdue change in its name. This would probably require a referendum. I believe the High Court of Australia has a very high standing throughout the world. It is considered to be one of the finest common law courts and one of the finest courts in the English speaking world. I think an appropriate name for that court would be the Supreme Court of Australia '.

Moving on to the question of simultaneous elections, the reasons that elections should be held simultaneously are fairly obvious. They range principally from the practical question of costs, through the question of convenience to the question of keeping the public mind carefully atuned to politics. People tend to become apathetic and if we have too many elections too often there is a tendency for the value of an election in the public mind to become somewhat debased through apathy. Originally it appears on a fair reading of the historical position that the elections were designed to be synchronised in any case. Although I understand the concern of persons who consider that it may be a derogation in some way of the power of the Senate the fact is that it was only a political accident in the early 1960s that removed the synchronisation and prevented simultaneous elections from proceeding as they had for quite some years before the early 1960s. An interesting question is whether this referendum will be successful or whether the proposal will be defeated by the people. I believe that on this occasion it will be accepted. There may be some rumblings in the community from very small sectors. I do not think that these rumblings will be seen by the people as substantial and I do not think there can be any really substantial argument advanced against the proposal to hold simultaneous elections.

In fact in some respects it helps to clarify one of the problems that arose a year or more ago in late 1975. Eventually I believe we in this country are going to have to consider fully and deeply all aspects of the Constitution and we may need further referenda on important aspects. It is still to early for a number of reasons to hold referenda relating to some of the events prior to November 1975. One of those reasons is that there are court proceedings going on which have not been finalised. It would not be proper for me to comment on the content of those proceedings. I reject the suggestion of the honourable member for Hindmarsh (Mr Clyde Cameron) that it would be appropriate to go ahead with referenda now. One effect of the present proposal will be that there will not be a situation in which one House can force another House to go to an election without the former itself having to face the people. Otherwise there could be circumstances in which the Senate could reject Supply- it certainly has the power at present to do that, because the precedent has been set- and the House of Representatives could be dissolved, but not the Senate. It is my view that where the Senate exercises that power it ought to be subject to the judgment of the people following the exercise of that power and therefore at least half the members of the Upper House and the Lower House ought in those circumstances face the people. So to that extent there will be some assistance to the overall constitutional position by the introduction of this proposal.

There is one other matter that I wish to raise which is within the province of this debate but not within the terms of the referenda. I believe that we ought to look at having fixed terms by more or less synchronising the elections for both Houses in such a way that it would be normal to have a fixed term of 3 years for each parliament. The present theoretical position is that there could be a number of elections within a period of 3 years if the Prime Minister of the day for various reasons recommends that they be held or in other circumstances. I am of the view that where possible elections should not be held until the full term of the Parliament has expired unless a workable government cannot be formed or unless the Senate exercises its power to refuse Supply. There may be some other particularly exceptional circumstances but if the elections were synchronised primarily around the Senate timings and if there were a normal fixed term of 3 years I believe it would add to stability and I think it would be welcomed by the people.

I would go one step further: I think there is much to be said for federal elections taking place every 4 years in Australia. That period might be considered by some people to be too long. I think it is not too long. In England the normal period is 5 years but often an election is called on before that time has expired. I think 5 years would be too long in Australia. The American federal experience of 4 years with mid-term 2-year elections seems to work reasonably well. Indeed, for the American presidential elections there is a specified day every 4 years upon which the election must be held. If we are to get long range planning into this country 's affairs, regardless of political matter, in my opinion it would be satisfactory to extend the period of elections to 4 years so that governments are not tempted to indulge in political activity for much of their term of office or act within the constraints of political circumstances most of their time but are able to devote more of their term to those functions of government which would produce a longer range benefit to the Australian community. That would also avoid the costs involved in holding various elections.

I support the legislation relating to casual vacancies. I do not like certain of the terminology. To my mind when the proposal was first brought forward following the difficulties of a year or more ago it became apparent that something had to be done. The Australian Constitutional Convention has looked into the matter in considerable detail. However, the writing into the Constitution of reference to political parties is contrary to many traditions and contrary to an established attitude within our traditional British system that we do not refer in constitutions to political parties. I think this is a healthy thing. This proposal, I believe, would have been better framed if we had been able to find a way mathematically to calculate who ought next be entitled to fill a vacancy upon the death or retirement of a senator. If there were to be a guarantee of proportional representation- and that would have to be the situation as I think there is a guarantee in Tasmania- then a mathematical quota could be worked out and the person who is next on the ballot paper, presumably, once the votes were worked out, would be the person entitled to fill the vacancy. Of course political parties would fit themselves into that framework and they would ensure that they ran a sufficient number of candidates to have a number of reserves. If they ran out of reserves the ordinary provisions of the Constitution would apply. The tendency to devalue personalities in favour of Party political matter within the Constitution is to some extent regrettable because the Senate is still primarily, as well as a States House, a House of review. It has a tradition of producing independence and to enshrine political parties in any way might tend to militate against its traditional production of independent members.

Some other matters might be looked at. I do not think they are particularly important, although some examples were raised in the debate of practical difficulties that can arise which would be overcome if the mathematical formula were used. There are the obvious problems of court challenges and issues of fact having to be determined by the courts as to whether a person was publicly recognised. Other interpretations would be required for example of factual situations, whether or not a political party existed, what a political party is, how big it is, how small it is, what happens m the case of splits and the Uke. However, the only practical matter to which I wish to allude is the principle of replacing senators with persons of the same political persuasion, other than when the senator is independent. That is a sound principle and it will overcome most of the difficulties that occurred before.

I also congratulate the Government on announcing that it will hold with these referenda a poll to settle the issue of the national song which I think is overdue and will give the people an opportunity to have their say on that matter. I support these proposals very strongly. I believe that they ought to be the subject of wide and cogent debate m the community before they are put to the people. The cases should be clearly expressed to the people. I am sure that in those circumstances the proposals will be carried.

Debate (on motion by Mr Fry) adjourned.

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