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Thursday, 17 February 1977


Mr SCHOLES (Corio) -The 4 constitutional Bills represent a package which is derived from the determinations of the Constitutional Convention at Hobart, Sydney and Melbourne. It is pleasing that some results in the form of referenda bills have come before this House. It is unfortunate that the number is not greater. I think at least one other referendum was unanimously agreed to on 2 occasions- the reference of powers provisions which could have been included and which could not have been opposed by anyone. In general, with the exception of the Constitution Alteration (Retirement of Judges) Bill, the other 3 Bills deal largely with this Parliament and the manner in which it is elected. I will deal firstly with the Constitution Alteration (Retirement of Judges) Bill. I think it is quite reasonable that provided the retiring age forjudges is known prior to appointment, such a retiring age should be provided. At the time when the Constitution was written it was not usual for people to retire but I think that at this stage in history people are not expected to hold office beyond the age of 70 years. I think the proposition is a reasonable one which should have the support of the Australian people. I would have thought that if legislation had been passed rather than having the matter decided by referendum the High Court at this stage might have reversed its earlier decision which was made at a time when a different set of criteria existed. I am certain that this referendum will be carried.

I do not suggest that age is necessarily a bar to good performance. The means by which a judge who reaches an advanced age can be removed are cumbersome and are almost unapproachable. An address of the 2 Houses would be contemplated only in the most extreme circumstances. A government would be loath to move in such a way against a person of great stature who may have reached an advanced age, possibly with some lack of performance. I think it would be a much simpler and better process to have an automatic retiring age. Under such a system we might lose occasionally a brilliant man who has a lot to offer. Unfortunately that happens in all walks of life and it is one of the penalties of having an automatic cut-off date.

The other referendums are of significant consequence. I think that the line which has developed, and which may or may not be legally correct, that persons who do not live in the States are in some way less than full Australians, is unfortunate. Australia is an island continent although it consists of 2 major islands and a number of minor ones. Every person who lives within the boundaries of Australia ought to be recognised as an Australian for all purposes. The referendum to grant people living in the Territories voting rights for the purposes of referendums is a small step towards recognising them as full Australians. There are other areas in which they may have to be given similar recognition in the future. Although this referendum nas been put before I am certain that on this occasion it will be carried. While I can see no logical argument against it, I can see some emotive State rights argument which I believe does not have any weight. To suggest that a person who lives in Queanbeyan is in some way more of an Australian than someone who lives in Fyshwick is to me a stupid proposition although it is one which is now seriously being put as a legal position in the Commonwealth of Australia

The other 2 referendums deal with the Senate. They are concerned with when and how senators are elected and maintained in office. The simultaneous elections provision is one which has also been put on a previous occasion and which I believe should then have been carried. I note that there is some opposition to this referendum. At least one newspaper has suggested in an editorial that this proposal will in some way diminish the powers of the Senate. I do not know of any way in which that argument can be sustained unless the person advancing it also suggests that the Senate is of such relative unimportance that Senate elections cannot be held at the same time as House of Representatives elections as is the case with both Houses of the State Parliaments.

We all know that in a general election the question before the people is who will govern the country for the next period of years. Those of us who have participated in elections are also aware that in a Senate election people generally, say: Why the hell do we have to go out and vote on Saturday? What is it for?' I think that attitude does more damage to the standing of the Senate than anything else could. I think it is ludicrous to suggest that the standing of a House of parliament depends on the day on which it is elected. Does anyone suggest that the Senate of the United States of America is a less important House because it is elected on the same day as the House of Representatives? Does anyone suggest that State parliaments in the United States are less important in their constitutional structure or that they perform their functions less effectively because they are also elected on the same day as the Congress? I think that the argumentit is put usually by a minority, but a vocal minoritythat simultaneous elections diminish the power of the Senate, on the one hand is based on opportunism and, on the other, shows an inferiority complex. Many people who talk loud and long about the importance of their chamber in the Parliament are in fact worried that if they do not say how important they are other people will not recognise their importance. That is very much the motive of some publications. It is the motive of at least one official publication of the Parliament which I think ought to be struck out because of its lack of objectivity. It is certainly the motive of some members of the Senate who feel that in building up the chamber by such vocal gymnastics they are in fact building up themselves personally.

The stature of a parliament and the stature of its members depend substantially on the manner in which that parliament and its members perform their duties. It depends too on the manner in which they approach the duties with which they are charged under Acts of parliament and the constitution of the country. The Senate is a chamber of this Parliament. It has assumed powers which properly I do not believe exist. Nevertheless, those powers have been assumed. One of those powers is the power to determine whether governments will stay in office. Having assumed that power the Senate is entitled to expect that it will be elected at the same time as the chamber in which governments are formed, and therefore reflect the will and the wish of the elector on the occasion when a government is chosen. It is ludicrous and quite fallacious to argue that if we leave the Constitution as it is and by accident or design of a Prime Minister's choosing separate elections on occasions are held for the Senate, the status of the Senate will be increased. In general terms most elections for the 2 Houses of this Parliament have been conjoint, occurring on the one day. There has been no suggestion that the senators elected on those occasions were in any way inferior to those who were elected on separate occasions.

There is reason to advance the argument that the persons chosen to be senators on occasions when the 2 Houses have been elected together have been chosen on a more objective basis and that a broader perspective of choice on national policies is exercised even though people might primarily be electing a government in the House of Representatives. In almost all cases very few political leaders have shown any enthusiasm for single Senate elections at which people have been asked to vote for senators and which do not involve the election of a government. In my memory none has been able to whip up enthusiasm in the community for reasons why Senator A should be elected instead of Senator B. The result has been- the recent Senate election indicates this quite clearly- that people tend to vote for those people who put forward a point of view which is attractive but which would not attract their votes if the choice of a government depended on their decision. Single Senate elections are very much a by-election situation.

In one recent Senate election an independent senator was elected from Western Australia on a platform to abolish estate duties. In South Australia a candidate was very nearly elected on an education platform. In Victoria a candidate received 20 per cent of the vote but his Party in a general election was able to achieve only between 9 per cent and 12 per cent of the vote. I think it is important that this referendum be carried.

Another important reason should be advanced in favour of the referendum, namely, that this Parliament has been subject to a continual succession of elections over the years for the Senate and the House of Representatives to the extent that in the last 10 years there has hardly been a year in which some form of election for this Parliament has not taken place. This does not assist in the management and government of this country. It certainly does not give any continuity to government. It creates the unfortunate situation in which governments have to plan on a relatively short term basis those policies which may be unpopular because at the end of every year in recent times there has been an election or an election due early in the following year. There has been uncertainty and this is not something from which parliaments should suffer. If the majority within a parliament changes, then the Government falls. But I do not think governments can function properly if they do not have security of tenure of office. That is one of my arguments against the section of the Constitution that allows the blocking of Supply. Tenure of office is important. If both houses have the power to form governments, when the electorate expresses its opinion both Houses should be elected at the same time.


Mr Hodgman -And go to the people at the same time.


Mr SCHOLES -That is correct. In fact I would advance the argument that our Constitution should be changed radically. I do not believe that States are better represented in the existing situation. The best representation would come about- this is a personal view- if those sections of the Constitution which provide for 2 Houses were removed and proportionally elected members sat in this House with members elected under the House of Representatives procedures. I believe that would strengthen the Par.liament and it would make the Parliament a far more responsible body. It would not in any way diminish the representation from the minor States. In fact it would increase it in the chamber of government. That is a personal point of view but I think it is one that bears examination in the future because what I have suggested would strengthen the Parliament, which is tending to divide itself into 2 Houses rather than to unite itself into a parliament.

One other referendum which is to go to the people is on the question of the replacement of senators where casual vacancies exist. Because senators are elected for long terms on a proportional basis a problem arises when a vacancy occurs. If there were an election the vacancy would be filled on a single vacancy basis or would add to the number of vacancies which would normally occur and therefore distort the result of the election. This has happened on a number of occasions. I will give one or two examples. I think it was in 1964 that the late Senator Poulter was elected to represent Queensland. He died before he could take his seat. Therefore a casual vacancy was created to replace a senator elected for a 6-year term. A senator was ultimately appointed. On that occasion the Labor Party had trouble with the Queensland Parliament too. It would not appoint the man who had run in the previous Senate election and who was nominated by the Party, but a senator from the Labor Party nominated by the Labor Party was ultimately appointed. He was subsequently subject to a single vacancy election at the next election. The Labor Party would normally win two out of the five seats in that State in a single vacancy election because it is in a minority. The seat held by the senator filling the casual vacancy would be lost and there would be a distortion of proportional representation for the remainder of that 6-year period because a senator who would not have een elected on a quota system from one party is elected.

We had a similar situation in Victoria on the death of Sam Cohen. Senator Brown was appointed to replace him. An election took place within about 6 months. The Senate vacancy was then filled. I think Senator Greenwood was elected. He filled a position which would normally have been filled by his Party under the proportional system. We had a rather ludicrous situation at this stage. The Labor Party, which was entitled to 4 Victorian seats in the Senate, had three. This Bill overcomes that problem by the provision that an appointee shall serve the remainder of the term of the senator he replaces. It therefore maintains the actual wishes of the electorate throughout the term of the senator. It acts to the disadvantage of the Labor Party in this instance because in Victoria at an election due 6 senators would be elected, four of whom would be from the Liberal and National Country Parties. Almost certainly under the proportional representation system the Labor Party would pick up the sixth seat. If the Labor Party did not do so and the Government did not, some minority party would. I expect that would be the situation. That is unfortunate and I can sympathise with Senator Brown, whose position is most likely on the Une. He voted for this proposition at the Hobart Constitutional Convention and therefore realises and acknowledges that his personal position is not as important as the long term position. I am sure no Press reporter would take up the story of a politician who in the national interest voted to take 3 years off his own term. I believe it is in the national interest.

There are controversial sections in this BUI. One is the recognition in the BUI that there are such things as political parties.

Sitting suspended from 6 to 8 p.m.


Mr SCHOLES -Before the suspension of the sitting I was referring to the election between Senators Brown and Greenwood for a single Senate vacancy. In fact the seat being contested was Senator Gorton's seat, to which Senator Greenwood was appointed. Arising out of that and out of the death of Senator Cohen during that election, Senator Brown subsequently contested the election for senators at which six were elected. As a retiring appointed senator because he was elected further up the list than sixth he lost his seat. The person who finished behind him took the seat to which he had been appointed for 6 months, and he was out of the Parliament for a little over 6 months because he did well in the election. The person who did less well than he immediately came into the Parliament.

I do not think that there can be any doubt that the simultaneous elections proposition should be carried. As I said before the suspension of the sitting, the argument that, by some quirk of imagination some people think that this downgrades the Senate, is a fallacious argument. I suggest that there is no evidence at all, and I hope that the present senators would support me, that they are m any way inferior or constitute in total an inferior Senate than those senators who were elected at single Senate elections in 1964, 1967 and 1970. 1 reject that argument totally. As I said earlier, it is an opportunist argument, an argument designed to inflate egos and in some cases to advantage minorities, not to bring about a proper rational election of members to both Houses of this Parliament when the responsibilities of government and choosing government are upon the electors. I think that the Australian people should carry all the referenda put forward on this occasion and I am sure that, given honest argument, on the merits of such argument they will do so.







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