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Thursday, 24 February 1977


Mr Les Johnson (HUGHES, NEW SOUTH WALES) (5.41) -The Commonwealth Electoral Amendment Bill together with those subsidiary Bills passed last night have been introduced for two principal reasons. The first reason in my view is to amend the Commonwealth Electoral Act and subsidiary legislation to take account of the decision of the High Court in the 2 constitutional cases decided in December and early this month. The second reason is to introduce yet another method of protecting the National Country Party from political annihilation. While the Government may justly claim a responsibility to legislate to cover the former, neither the High Court's decisions nor the Government's election rhetoric justify the latter. Only the preservation instincts of the National Country Party members who so envy the gerrymander perpetrated in Queensland justify the inclusion m this legislation of the amendment protecting large electorates. I will have more to say on that aspect in just a few moments.

The 2 decisions of the High Court that have necessitated the amendments now proposed by the Government both concern the interpretation of section 24 of the Constitution. That section provides- and was given legislative effect by section 10 of the Representation Act of 1905- that a number equal to twice the number of senators is to be divided into the number of the people of the Commonwealth as ascertained by census but excluding those citizens who reside in the Territories. This quota is then divided into the population of each State to ascertain the number of seats each State is entitled to have. Until 1964, when a previous Liberal-Country Party Government introduced amendments to the Representation Act to the effect that any remainder over the quota entitled a State to another member, additional members were provided only where the quota was exceeded by 50 per cent. In the first of the two recently decided cases, Western Australia against the Commonwealth- it is known as McKinlay's case and was decided in December in 1975- the High Court held that section 24 of the Constitution intended the calculations used for ascertaining the number of members must be made before each general election and therefore held that this required the latest statistics of the Commonwealth to be used.

The 3 measures introduced by the Government require the Australian Statistician to keep quarterly population figures. They also require him to provide the Chief Australian Electoral Officer with figures relating to the number of people of the Commonwealth and States to enable him to determine the number of members to be chosen for each State. These figures must be provided during the twelfth month of the lifetime of each Parliament. Although the Court found that the method of ascertaining the number of seats was invalid, as the method tied the number of members to the taking of the census, it decided that the 1975 elections could be held on the existing boundaries. Reference has been made to Mr Justice Murphy. I wish to quote Mr Justice Murphy also. In this matter he dissented from the majority opinion. He held that section 24 of the Constitution required the implementation of the principle of one vote one value, as nearly as practicable. Unfortunately, his brother judges did not display such a fervent dedication to this principle.

In the most recent decision, handed down earlier this month, in a case in which an elector of New South Wales challenged the validity of certain sections of the electoral Acts, the Court held that the 1964 amendments to the Representation Act- which, by the way, were introduced by the then Attorney-General, the present Chief Justice permitting an extra seat to be created where the quota was not exceeded by 50 per cent, were invalid, as they were offensive to the precept of proportionality and the nexus requirements of section 24. Thus we will revert to the pre- 1964 position, requiring a remainder of over 50 per cent of quota before an additional seat may be created. While the Court firmly stated its belief that this position- one the founding fathers intended- may have disastrous effects on the size of all electorates and while the 'remainder' provision is interpreted as requiring greater than 50 per cent of the quota, the 10 per cent weightage will be excessively used and will burden many city electorates with additional constituentssome electorates by up to 8000- and will necessitate a re-drawing of all existing boundaries in New South Wales, Victoria and South Australia where remainders above the quota do not exceed 50 per cent.

While the Opposition is pleased that the Government has recognised the irresponsibility of its opposition to the 10 per cent weightage factor in the 1974 electoral legislation proposed by the Whitlam Government and passed by the Joint Sitting of this Parliament, we cannot accept the proposition in clause 7 of this Bill that limits the number of electors in large electorates to the number in the smallest electorate. This clumsy attempt to protect the National Country Party, whose members are still smouldering over their failure to have the loading increased to 20 per cent, will hinder the distribution commissioners in their attempts to bring electoral justice to Australia. Electoral legislation could make it possible for a party which achieves a majority of votes, as the Australian Labor Party did in 1955, 1961 and 1969, to be denied government through the loading of electorates which operate against the interests of those residents of the capital cities who make up the bulk of the Australian population.

Let me make brief reference to an analysis of the last election figures. The Australian Labor Party, with 3 3 13 000 votes, or 42 per cent of the votes, obtained only 36 seats. The Liberal Party with 3 248 000 votes, or 42 per cent of the votes, obtained 68 seats. The National Country Party, with only 853 943 votes, or 1 1 per cent of the votes, obtained 23 seats. It is interesting to note that Labor actually won 64 868 more votes than the Liberal Party in the last election. Such are the iniquitous effects of the electoral provisions that have applied under the provisions of the Electoral Act as determined by the Liberal and Country parties which incorporated that 20 per cent disparity both above and below the electoral quota.

The commitment of the Australian Labor Party to democracy cannot be challenged. In this regard all members of this Parliament today probably owe a debt to the Leader of the Opposition. (Mr E. G. Whitlam), who has pursued this matter unrelentingly over the years he has been a member of Parliament. This is an attempt to redress the iniquitous blot on the Australian electoral landscape. We have always sought to have electorates in each State as nearly as practicable equal. Our former colleague, now Mr Justice Murphy, as the honourable member for Denison (Mr Hodgman) said just a moment ago, spelt this out during the debate on the 1974 electoral Bill. I want to read it again in the context of the speech I am making because I think it is appropriate to slot it in now. He said:

Exact equality in the number of electors per division cannot be achieved, nor is it desirable. Some degree of variation from the quota must be allowed. At the same rime equality of political rights is inherent in a true democratic state and the electoral system must not be used to benefit a particular Party and disadvantage the people.

To the extent that that principle has been identified, recognised and accommodated by the Liberal Party especially- I know it has had to make some kind of diversion from the pursuance of that principle because of its alliance with the Country Party- I pay it some tribute. National Country Party members, both in the other place and in this House, have complained about this legislation, despite their commitment to vote for it, claiming that it disadvantages their constituents. These members ignore the first criterion of the commissioners which states that consideration must be given to the community of interests within the division, including economic, social and regional interests. Yet these members tend to place great stress on the second criterion, which relates to the means of communication and travel within the division. No one on this side of the House disparages the idea that some weight and some consideration should be given to such a factor, but it is the extent to which this consideration is harboured and favoured to which we object. By engaging in this to too great an extent they ignore the diverse problems which the high migrant population poses in inner city electorates- the problems of housing, transport, education and a host of other problems which do not confront country members to the same degree. The hardship faced by members representing densely populated areas is certainly equal to that caused by travel requirements of country members. Yet no provision is made for additional assistance for these members, as is provided by way of increased electoral allowances and access to charter aircraft for those representing country seats. My colleague the honourable member for Wills (Mr Bryant) has a very high incidence of migrants in his electorate. My colleague, the honourable member for Grayndler (Mr Antony Whitlam) is in a similar position. The honourable member for Grayndler represents a Sydney electorate, whereas the honourable member for Wills is from Victoria. As people Hock into these electorates they create enormous social problems, the consequences of inadequacies of governments over the years. It is very often left to the member in these inner city electorates to grapple with all kinds of human problems. I suggest that in the more stable country areas where the graziers have been living for years there is not the same problem. Certainly there are problems. The same consideration is not given to members who represent city people.

Under the new system there will be 47 electorates limited in the number of electors because of their size. Of the 43 New South Wales seats in the new Parliament, 14 will be over 5000 square kilometres in size and the weightage in favour of these seats will vary by up to 14 000 electors, the new quota for New South Wales being 7000 electors. I suppose the National Country Party would still like to see that disparity run into 28 000 rather than 14000. Thus an electorate such as the electorate of Grayndler which is at present 22 square kilometres in size but is densely populated, may increase by up to 20 000 electors while the seat held by the Leader of the National Country Party (Mr Anthony) can easily remain exactly as it stands at the present time.

The second clause which the Opposition is greatly concerned about is clause 10 of the amending Bill. In particular the Opposition is concerned about the proposed sub-section (4) to section 25 of the Principal Act which limits the occasions when a proclamation under section 25 (2) may be made, commencing a redistribution because of imbalance between the electors in the division where 25 per cent of electorates are outside the quota. This new provision would prohibit such a redistribution within 7 years of a previous redistribution.

If the number of seats for a State alters every 3 years a redistribution will occur and there is no need for an additional redistribution on the grounds of imbalance between the number of electors. However, if the number of seats for a State remains stable, as is more likely, there is no opportunity for a redistribution to correct the imbalance between electorates. In fact there is no guarantee that even when section 25 (2) is satisfied there will be a redistribution as the amendment proposed only prohibits such a redistribution occurring more frequently than every 7 years. The only qualification for this is provided in proposed new sub-section (2) (b) ( 1 1 ) which allows the Governor-General to issue a proclamation 'at such other dmes as he thinks fit', to use the words of the Bill. My view about that is to this effect: In a democratic state the reservation of this power to a GovernorGeneral who has shown that he does not operate on the advice of his Ministers is a reservation of power which this Parliament should not allow. The power to order a redistribution is one which, unless placed firmly in the hands of the Parliament, can quite openly and flagrantly be abused.

The Opposition is also greatly concerned about the operation of clause 1 1 which adds a new section to take effect if a redistribution is not undertaken in accordance with the Commonwealth Electoral Act and provides for an election to be held at large. This clause does not provide any machinery under which such an election would be held. The flippancy with which the Minister for Administrative Services (Senator Withers), who is responsible for this legislation, treated queries about this clause in another place and the comments of the Attorney-General (Mr Ellicott) last night, indicate, as is the case with so many other matters of importance, that the Government has not given this matter consideration. Their behaviour indicates that they have no intention of informing the Parliament or the people of Australia how this provision is to operate with regard to such matters as the issuing of writs and the voting procedures. We do not even know, nor does the Chief Australian Electoral Officer have any guidelines to indicate whether we are to have proportional representation, preferential voting or whatever. There is nothing for that matter in respect of ballot papers or many of the other provisions about which guidelines are obviously needed. It is as plain as a pikestaff that if we have to reach that situation where an election at large is held we will see a first-class shemozzle in this country which will make a mockery of the democratic processes. Therefore I believe that the Attorney-General has a great deal to apply himself to in respect of that suggestion.

Finally, the question of timing remains to be discussed. Proposed new section 24 requires the Governor-General to proclaim the new divisions after a redistribution is approved by Parliament, as soon as practicable and whether or not the House of Representatives has expired or been dissolved since that approval was given. If writs were written for an election of the House of Representatives before the Governor-General proclaimed divisions under proposed section 24, the election would have commenced as defined in 1905 by the High Court and it would seem that the new divisions could not be used. If the redistribution had occurred as a result of a change in the number of seats for a State, it would appear that an election at large for the State would be required for an ordinary general election, while in the case of a snap election the old boundaries would be used. Hopefully it will be always the practice that the GovernorGeneral makes the proclamation under proposed section 24 before the writs are issued if a redistribution has been approved by the Parliament prior to this election. The Opposition acknowledges the progress that has been made but it assures the people that electoral justice will only be completely accomplished when the Labor Government takes office after the next federal election.

Sitting suspended from 6 to 8 p.m.







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