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Thursday, 17 February 1977


Mr LIONEL BOWEN (Kingsford) (Smith) - The Australian Labor Party welcomes these Bills and fully supports the proposals that are to be put to the Australian people by way of referendum. In a nutshell it means that for some time we have been discussing how best to get the Australian people to support change, but it appears now that the only practical way to do so is to have a Liberal-National Country Party

Government. Without such a government there cannot be any effective change to the Constitution, and the rules are thrown overboard in the process if a Labor Party government dares to say that it wants to have change and it wants to have adherence to a convention. The Government must be very mindful of this fact that in discussions in public forums Opposition members cannot be expected to be silent about what happened to the Labor Party when it was urging that these changes take place. Nevertheless it should not be assumed that we are in any way opposed to these changes now. We think that they are perhaps in some cases 50 years too late.

However, it is significant that change is coming about because of public discussion. I pay a tribute to a Labor man in Victoria, John Galbally, who had enough wisdom as Leader of the Labor Party in the Victorian Upper House to suggest that there should be another attempt by way of a Constitutional Convention to have change in Australia. It can be seen that as a result of that decision of his, supported by the Victorian government at the time, that we are now getting some change flowing through, little as it is. I think it is worth while paying a tribute to those many people who did assemble in Hobart last October to discuss quite fairly the problems of the nation and how best to solve them by constitutional change. The great difficulty and, I think, the great weakness is that we are trying to suggest that we, the politicians, always know what is best for the people instead of leaving it to the people themselves for discussion in the first instance on what they think should be put to them.

I want to applaud the actions of the Citizens for Democracy in urging that meetings be held throughout Australia with a view to having a new constitution- a constitution approved by the people in the first instance and submitted to this Parliament just for mere technical legal ratification. Then we would have unity in this country. We would have a sense of purpose as to where this country is going. There has been mention that there is to be a referendum on a song. There is no mention of an anthem. Are we so devoid of national spirit that we cannot even talk about a national anthem of our own, a flag of our own, and an identity of our own? How is this country going to run along in this old colonial atmosphere that says there is to be no change?

One of the Bills under discussion proposes to give the people in the Territories of Australia a vote at referendums. They have been denied a vote in the past. We extract all sorts of taxes from them. We engage them in military service for the defence of this country. We urge them to stay north of the Tropic of Capricorn in case Australia is invaded. We do everything from the point of view of saying that we are Australians, we are one nation. But when it comes to a suggestion that the people in the Territories should be permitted to have a vote on constitutional changes they are denied that right. It is a tragedy that at the Hobart convention the first item to be discussed was whether there should be a referendum vote for the people in the Territories and the representatives from the Queensland government said 'no' and stood up and voted against the proposal. I would hope that when this referendum is again put to the Australian people there will be a change of heart by that particular political group in Queensland. To deny fellow Australians a vote is only divisive. It only means again that the Australian people are still confused about what is happening to their governments and to their country when politicians and the political leaders cannot even agree on elementary democracy.

When referendums are held we read such things as 'The Case for No'. That is the way it is put in this pleasant vernacular. If honourable members care to read what was put out when we were suggesting on a previous occasion that the people in the Territories be permitted to vote at referendums they will see that it was said: 'That is a very dangerous thing to do'. It was said that we must never have change. It was said that there is a fraud being committed. I hope that none of these words are used again. The Case for No says that this is another proposal to suggest alteration by fraud. This is what was said when we were talking about giving a referendum vote to the people in the Territories. Is it any wonder that people reading that and thinking that it had some legal basis might well be encouraged to vote no? Is not the real issue this: That people of that ilk who put that sort of case forward would not be worthy of being called Australians? That should be the indictment of them. There is some slight hope that in the next referendum they will change their view but I am very doubtful about this because of what I saw in October last when they were so vicious in their opposition to the move to give a vote to the people in the Territories.

One worthwhile change in the legislation under discussion is the retiring age forjudges. It has been said quite effectively and quite intelligently that it was really never intended when the Constitution was drawn up in 1 900 that judges would not be expected to retire. If honourable members look closely at the words of section 72 they will see that it says they shall not be removed. That is a totally different proposition. There would be nothing wrong- good legal advice has said this- if this Parliament passed legislation setting down a retiring age for judges. That legislation could have been submitted to the worthy judges for a reconsideration of Alexander's case as to whether it had been rightly decided. They might well have decided that the Parliament had the power to fix a retiring age for all judges. The question of removal related to a personality or a particular issue that involved a personality or personalities would require the Parliament to have certain provisions to remove judges.

The judges of the High Court have a great responsibility in safeguarding the Constitution as worn out and as outmoded as it is. They have to interpret the Constitution in accordance with modern times and changes in conditions. They are not immune from senility. They are not immune from the geriatric process of mental decay and accordingly it follows that there must be some intelligent appraisal by the Australian people of whether we think sixty, sixty-five or seventy should be the age at which the man or the lady- it could well be a lady on the High Court- should retire. Again this matter was the subject of discussion at the convention in Hobart. There is obviously plenty of public support for the proposal. I will not spend too much time on it because I think it will be carried by an overwhelming majority. But I am anxious to make the point that perhaps this could have been done by the High Court itself by having another look at Alexander's case which seemed to have the doubtful distinction of having been decided by people who in fact had written the Constitution themselves and that often involves some personal motive in respect of what they think would be best for themselves.

There should be no mistique about a constitution. It is not sacrosanct. It is just a group of words expressed, we would think, in an intelligent fashion. Of course that intelligent fashion is now subject to great debate. It does not always help the nation or the High Court, for that matter, to be saddled with a stack of words which in many cases have no real application. The expressions in section 92 of the Constitution are classic English exercises which nobody understands. It is quite clear that the founders of the Constitution did not want to have customs barriers on every State boundary. That is what they meant. Of course we have the legal interpretation that perhaps we cannot control banking and we cannot interfere with suggested private enterprise operations because they are deemed to be trade and commerce within the States.

The High Court quite fairly has had to make interpretations but it is about time that we allowed the Australian people again to have a good look at where we are going as a nation. We may well find ourselves in the Pacific still arguing the merits of the Constitution when the whole world has changed or when Great Britain itself has probably entered a federation of Europe and is part and parcel of a federal system with a complete new concept. We hear many questions being asked about what is happening to our primary industries, what is happening to our former trade opportunities and what has happened to the former purchasers of our goods. They have adopted a new concept. We cannot rely on the past. That is the message we have to convey to the Australian people. It is a matter of urgency that we get a sense of national identity and a unity of purpose. A constitution is a way to do this. A national Parliament is the instrument with which to express it. The people in the parliament must have integrity and a sense of duty when it comes to what is best for Australia. This country should not have these shabby operations whereby people in State parliaments can get up to all sorts of confidence tricks by manipulating the type of person they want in this Parliament which has had disastrous results. It is inexcusable that a person filled a casual vacancy in the Senate contrary to the Party wishes of those whom he professed to represent with the express purpose of saying: 'I am coming here to refuse Supply to the Government. That is my sole purpose'. And he was effective. It brought down a government. I think it may well have destroyed a lot of unity in Australia for a long time. When that person submitted himself at the next poll he was soundly defeated. There was no support for what he had done. Now, perhaps, we shall be able to get change through the Liberal-Country Party Government's understanding of what has happened in the past. We are a bit cynical about the extra Senate vacancy for the State of Victoria. We wonder if it had been a long term Labor Senator from Victoria who had died, whether this Government would have been so anxious to suggest change on the basis that the casual vacancy would be filled for the whole of the term. It means at this stage that the Victorian seat that might have been expected to be won by the Labor Party perhaps will not be available. We do not mind that because the real intention is that vacancies should be filled for the term. There is no doubt about that. But what a tragedy it is to think we could never get that point of view accepted, even from the point of view of a convention.

Let me deal with some of the issues involved in simultaneous elections. I had the distinction at the Hoban Convention of moving a motion that there be simultaneous elections. I was delighted to find I had complete support from my colleagues opposite, otherwise I do not think the motion would have been carried. Nevertheless, it was a worthwhile proposition. It clearly shows that the Australian people are bedevilled by frequent elections. If this referendum is not passed we will have 4 elections within the next 5 years. Can you think of anything more ridiculous or expensive? It would cost some $4m or $5m per election with the people themselves well divided on that issue.

Again, in a cynical fashion, one wonders whether this would be a primary concern of the Government at this stage if it was not aware of the fact that unless this is done it will face a halfSenate election in May 1978, some 6 months before it was due to go to the polls. The Government would not want to have a bad defeat in May because it could not be expected to recover psychologically by November. I mention that because it is the position which now applies. To put the matter on its proper basis, the Labor Party basis, is it not intelligent and proper that a Senate should be elected at the same time as a House of Representatives? The motivation of the people when they cast their votes for the election for a House of Representatives election in accordance with the policies expressed by political parties would also flow to the Senate candidates being elected at the same time. We would not then have the silly situation of senators being elected strictly to try to get rid of a government and being in no way responsible for their action.

When we consider the case for voting 'No' to simultaneous elections I hope we do not have the sheer nonsense and rubbish that was circulated last time as to why people should vote against simultaneous elections. The reasons given were runaway inflation, high interest rates, staggering tax payments, irresponsible government spending and a Public Service growing like Topsy. In the name of honesty that could not be related to having simultaneous elections for the rest of time. That was the way the Case for No was put. It states:

The dishonesty of this referendum question is that it says this is the only way to get Senate and House of Representatives elections held together.

That is true. The Case for No said:

That is simply untrue.

The Constitution, the law and Parliamentary practice each Prime Minister to have a House of Representatives election on the same day as any Senate election.

That is not so. It is untrue. It is surprising to think that the present Government expressed that view at that stage. It must have thought that a GovernorGeneral would always take the advice of a Prime Minister because that is the only way that that could possibly happen. There have to be good and valid reasons for the dissolution of a House yet it was expressed in the Case for No on one of the issues that it was just a formality and could readily be done. The Case for No said: 'Be careful, you must not allow this to happen because the Senate will become a rubber stamp of a socialist, centralist, Labor Government.' What utter nonsense to say in the first instance that senators should be elected by the people and then to suggest that people will be misled about whom they vote for on that basis. No senator would ever be a rubber stamp, nor should he be, but it is appropriate that he should be indicative of the type of person elected at the same time as a government was elected. That is what this measure is all about.

One could manipulate the Constitution to show how silly this proposition is. Under section 13, if one wanted to get elections back into kilter one could put forward a phoney proposition to a tame and friendly Senate, which would reject it, and then one could ask for a double dissolution around the end of June and organise an election for the House of Representatives some time in July. Because section 13 provides that senators' terms commence from the previous 1 July they could have their 3-year term. Surely we do not have to go to that sort of expediency to achieve the situation aimed for in this Bill. Finally, let us look at the proposition for casual vacancies as is provided in this legislation. I think this proposition is appropriate, worth while and reasonably well drafted. I applaud the Government for the fact that for the first time it recognises political parties as being representative of the Australian people. There is nothing wrong with being a member of Parliament, a politician or interested in politics. It is the best thing one can do from the point of view of his country. Whether one is good or bad is always subject to the judgment of the people and nothing else. If one fails one does so at the ballot box. Therefore it is appropriate that we recognise political parties, their wisdom, their function and their value, and do not think always that wisdom is somewhere other than in political parties. It is not. Political parties are the grass roots of democracy and the basis of the great nation that we can make this country. Accordingly, for the first time it is recognised in legislation-I think it is to be applauded-that a person could be deemed to be a member of a particular political party with all the difficulties that might flow from trying to determine what is a political party. We have no doubt about it. People in the country have no doubt about it and I hope no court has any doubt about it.

I should like to make a suggestion at the Committee stage in regard to the part of the legislation dealing with the filling of a vacancy. I do not suggest any amendment; it is just an expression. Clause 2 states:

.   . unless there is no member of that party available to be chosen or appointed to be a member of that party.

There is a slight weakness in the words 'a member of that party'. I should like the words 'and approved by that party for that vacancy' to be added. There would be no doubt then that we would have the sort of Field disaster that occurred on the last occasion when a person appears to be a member of a party but is not supported or recommended by it. I think we have to go a little further and say that if the vacancy is to be filled on behalf of a particular political party that party should be able to nominate the person. I should like to think that would be spelt out a little more clearly.

We find this legislation very worthwhile. We give it the utmost support. We will urge its adoption by the Australian people. It is of no political advantage to the Australian Labor Party. It is to its disadvantage for the 2 reasons I mentionedthe casual vacancy in Victoria and the fact that this Government is in such difficulty economically that it would have been easier to try to thrash it to death in May 1 978 than in November 1978. Nevertheless, we will wear that additional burden on the basis of integrity of operation and what should be done by any responsible opposition.







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