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Thursday, 17 February 1977


Mr COHEN (Robertson) -The honourable member for Griffith (Mr Donald Cameron) who preceded me in this debate made a very interesting and amusing speech. I agree with him that his suggestion provided an easy way out, not for the Government, but for the honourable member for the Northern Territory (Mr Calder) and the honourable member for Canberra (Mr Haslem) and the honourable member for Fraser (Mr Fry). If that proposal were adopted he would very smartly in the next general election rid himself of three of his colleagues. I do not see at least the honourable members for Canberra and for Fraser embracing that idea with a great deal of enthusiasm.

I am one who believes that we really should tear up this present Constitution and write a new one. It has been said by many people in the country that the present Constitution, if taken literally- many want to take it literally and choose to take it literally when it suits them-is one of the most undemocratic documents possible. I have listened to and read with great interest the works of Mr Donald Home, a man for whom I have tremendous respect. He does an excellent job on this Constitution when he takes it literally and points out the absurdity of the powers of the Governor-General, who in fact would be an absolute monarch if the Constitution were taken literally. I cannot remember the exact words he used, but, as an example, he indicated that under the Constitution the Governor-General is the Commander-in-Chief of the armed forces. A lot of people in this country and in this House think very highly of the Governor-General, but I do not think many of us would agree that he is fitted to become the Commander-in-Chief of the armed forces. I do not think he has the required military background for such a position. But if we cannot have a new Constitution, the least we can do is to change the most obvious sections where there is agreement between the major parties that is required.

These proposals for constitutional change are contained within 4 Bills, relating to simultaneous elections, the filling of Senate casual vacancies by a representative of a political party of the same colour as that of the previous senator, the retirement of judges at the age of 70 years and the right of Australian Capital Territory and Northern Territory electors to vote in referenda. Already fallacious arguments are being thrown about by those who see the opportunity to do a bit of grandstanding or those who are such constitutional fundamentalists that they are opposed to any change. I am always fascinated by those who argue that the Constitution should not be changed simply because it is the Constitution. They have a fascinating reverence for the founding fathers. I think it probably could be saidperhaps some people may argue with me- that at the time of the writing of the American Constitution there were some particularly eminent philosophers, the likes of whom probably have not been seen at the time of the writing of the constitutions of most countries. There may be some form of reverence towards the American Constitution, but they at least do make considerable changes to it.

Having read the Constitution thoroughly and having read a lot of constitutional debates, I do not believe that our founding fathers were a particularly brilliant group of men. I think they were an exceptionally competent group, but I believe that if we had to write a Constitution tomorrow we could do as good a job with the people who are in this House today as did the Deakins, the Bartons, the Kingstons and the various other people who are now referred to as the founding fathers. I am not one of those who believe that there is any need to revere the Constitution in the way* that some of those who are now opposing change do. I think the most fallacious of the arguments against change is that we should not change the Constitution simply because it is the Constitution and because the founding fathers said so. It is as if the Constitution were handed down from the Mount- as if it were a bible or something like that; as if a flash of light in 1 89 1 , 1897 and 1898 passed on some greatness to these people and they wrote this magnificent document that cannot be changed. That is the basis of some of the arguments being put up in this chamber by the opponents of these changes. They say: 'Do not change the Constitution because it is the Constitution- it is revered, it is holy'. Another argument that has been put up against these proposals is that they constitute an erosion of States' rights and of Senate powers.

Let us briefly go through the 4 Bills before us now. I fail to see how the retirement of federal judges at 70 years of age constitutes in any way an erosion either of States' rights or of Senate powers. To the best of my knowledge neither the States nor the Senate have any say whatsoever in the selection of judges. It just eludes me how anybody can possibly argue that case with regard to changing the Constitution.


Mr Goodluck - Nobody has suggested that.


Mr COHEN - It has been argued by one of the senators in the upper house- I think it was Senator Wood- that all these proposals constitute an erosion of States' rights. This has not been argued by people in this place. But I have read today claims that all these Bills constitute an erosion of the powers of the Senate and of the States. Another referendum concerns the right of electors in the Australian Capital Territory and Northern Territory to vote in referenda. We would be drawing the long bow to suggest that that is an erosion of States' powers. It is true that it does add a large group of Australians to those voting at referenda, but I doubt very much that many people in the States would argue that there was any substantial erosion of any powers.

In regard to simultaneous elections, again I fail to see how that is an erosion at all of either the Senate's powers or the States' powers. I agree that on the question of the filling of Senate casual vacancies there is definitely a possibility of the erosion of the sort of powers we saw exerted at the times of the filling of the vacancies caused by the retirement of Senator Murphy and by the death ofSenator Milliner. Because of that action this Bill has been brought in. I think most fairminded and decent people believed that the action taken was a prostitution of democracy. While I agree with some of the comments in the newspapers and the media that there is a certain hypocrisy and cynicism in the Government's actions now, at least the Government has seen the light The Constitutional Convention saw the light and the Liberal and National Country Parties now agree that in the long-term interests of democracy and the nation the change is admirable.

Let me make some further points. Some argue that we ought to oppose these Bills because of the short-term political gain. I find that an obnoxious proposition. I have always taken the view that if a thing is right it should be supported and if it is wrong it ought to be opposed. One should not oppose a change now because there is a little to be gained by forcing the Government to a Senate election next May or by being assured of a third Labor senator from Victoria. These are very short-term benefits. In the long term all political parties and the nation will benefit from these proposals being passed. I was interested to note the comment by Mr Knox, the Liberal Attorney-General I think from Queensland.


Dr Klugman -He is the Deputy Premier.


Mr COHEN -The DeputyPremier and Leader of the Liberal Party in Queensland put the proposition that it is political suicide for the Government to propose this change because it will cost the taxpayers $3m. That is typical of the sort of argument one gets from Queensland governments. The cost of having Senate elections every 3 years would be way in excess of the $3m cited by Mr Knox. The cost of continuing separate Senate elections would go on ad infinitum. I do not know the cost of a Senate election but it would be at least as much as a referendum plus of course the many millions of dollars spent by political parties. This referendum will be a once only cost, and that will be the end of the matter. In the next 20 years we will save $ 1 8m to $20m.


Mr Martyr - That is without inflation.


Mr COHEN -That is without inflation, of course. There are those who argue that we should not have referenda because they will be defeated if any one of the proposals is opposed. I refer honourable members to the 1967 referenda. The perceptiveness shown by voters surprised me. We were always led to believe that people went and marked the ballot paper and did not think. There was an effective if somewhat dishonest proposal put up about the nexus. This was campaigned for by the media. Clearly the people of Australia distinguished between the 2 questions. There was a overwhelming yes vote, I think, of 90 per cent on the queston of Aborigines. I was involved in campaigning very strongly for the yes vote with my colleague the honourable member for Wills (Mr Bryant). The people voted quite differently to defeat the proposal on the nexus. I think it is the wish of this Parliament that the people of Australia will not listen to those who say oppose all change and put the fear of God into people that any change is bad. People should look at the proposal, think about it, listen to arguments put by the Labor Party, the Liberal Party and the National Country Party and by those who are proposing a No vote, and think about each question. If they do that we will get a very interesting start in constitutional change in Australia. I conclude my remarks by briefly reading these comments from the Australian Financial Review:

There is more than a whiff of cynicism mixed generously with hypocrisy in the Government's referendum proposal for filling casual vacancies in the Senate.

The proposal to be put to the country asks for a constitutional change which would mean that casual vacancies in the Senate are filled for the unexpired term of the former Senator by persons of the same political party.

Merely by putting the proposal to the electorate the Government acknowledges that the constitutional devices it employed to oust the previous Government were not entirely satisfactory.

Had the Senate not been stacked with men appointed by the State Premiers in defiance of the convention that vacancies should be filled by persons of the same political party as the departed Senators then Mr Fraser would not have been able to block the supply debate.







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