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Tuesday, 22 April 1975
Page: 1985

Mr ENDERBY (CanberraAttorneyGeneral) - in reply- In closing the debate, I hope, because the matter has some degree of urgency, I say at the outset that the right honourable member for Lowe (Mr McMahon) who has just sat down clearly has not read the Bill or, if he has, he has not understood it. The Bill certainly has the opposite effect to the one which the right honourable member put forward. The Government was attracted to the idea of doing away with the common informer action altogether. It did not adopt that course for reasons which I shall try to give in a non-political way. May I put them in a hypothetical way to illustrate my point? One can imagine a situation in which a case arises, either in this House or in the other place, with different parties- not only a 2-party system, but also a 3-party or a 4-party systemwhere a Government might take the view, trying to be non-political, that a charge has been made against a member and that the charge should be referred to the High Court pursuant to section 203 of the Commonwealth Electoral Act. In doing that the Government is not expressing any view whether the man is guilty or not guilty but, rather, that the charges have been made, the facts have been put before the Parliament and the matter should be resolved by the highest tribunal in the land.

In a hypothetical situation one can also imagine a combination of parties in Opposition, to which the charged person belonged, arguing amongst themselves and perhaps saying to themselves, if they had a majority in that House of the Parliament, that the matter should not go to the High Court. If the situation came about where 2 or more Opposition parties- this could not happen in this House- outnumbered the Government and defeated its proposition to send the matter to the High Court for independent inquiry and report pursuant to section 203 of the Electoral Act, then from the point of view of the public there would appear to be something not very different from a conspiracy. It is this situation which the Government is anxious to avoid. If in a House, say the Senate, a majority of the nonGovernment members- this could be any partyput their minds to a matter and defeated what was obviously a proper measure then the public would say: 'These silly politicians are ganging up to protect one of their members'. They might use stronger words. The Government took the view that there must be preserved an independent right to challenge a person's right to sit in this House. That right is the common informer action.

The common informer action is an emotive term, which is a pity. But it is an independent right which has had a long historical significance in our country and in the countries from which we draw our traditions. At this stage the Government thought it better not to abolish the right altogether but to upgrade it or modernise it so that the citizen- I will use the emotive term and call him a common informer- would not be unjustly enriched, he would not reap a windfall but, at the same time, in a proper case he could bring an action where he saw the politicians not doing so. In that sense the common informer process is preserved by the Common Informers (Parliamentary Disqualifications) Bill. The Government believes it is a healthy measure to allow a citizen outside Parliament who is concerned with the way Parliament operates and with the basic question of whether a member of the House of Representatives or of the Senate is qualified and eligible to be investigated to take action if he thinks that the politicians in one of the 2 Houses have not done the right thing by him. He should not be enriched. He should not benefit from it unjustly. But he should be entitled to put the matter to the test in the court. That is why the Government has introduced this measure. I think the Leader of the Australian Country Party (Mr Anthony) accepts the basic point. I think that the honourable member for Bennelong (Mr Howard) appreciates the point as well. The Government brings this measure forward to give a degree of protection but, at the same time, to preserve what is pretty obviously a basic right of all Australians.

Question resolved in the affirmative.

Bill read a second time.

Third reading

Leave granted for third reading to be moved forthwith.

Bill (on motion by Mr Enderby) read a third time.

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