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Thursday, 7 June 1984
Page: 2770

Senator GARETH EVANS (Attorney-General)(3.52) —Apropos particularly of Senator Jessop's contribution in support of Senator Hill's amendment, what I like about this place is the way in which we really respect each other across this chamber; the way we acknowledge the sincerity of each other's motives; the way we never question the bona fides of each other's arguments; the frank and friendly way we concentrate on the merits of matters without any elements of cynicism or suspicion. In that spirit, reinforced by the contribution of Senator Jessop, I express to the Australian Democrats particularly some views which might, I hope, lead them to reject on perfectly honourable grounds the kind of amendment that has in fact been moved by Senator Hill.

The Opposition amendment which would add all sorts of further words and qualifications to sub-paragraph (b) of clause 11 (4) appears to be based either on a misconception that that sub-paragraph confers a new function on the Commission or upon a belief that the Commission's existing function in 7A (1) (c ) of the Commonwealth Electoral Legislation Amendment Act should be narrowed. That function under the existing provision is expressed as follows:

. . . to promote public awareness of electoral and Parliamentary matters by means of the conduct of education and information programs and by other means;

'Electoral matters' is defined to include referendums. The expression 'other information' in clause 11 (4) (b) as it has been moved could encompass in addition to factual information, which is the language that Senator Hill wants to incorporate, information by way, for example, of legal analysis or perhaps material that is essentially predictive in character: 'This would mean X or Y or Z'; in other words material which may or may not satisfy some very strict application of the notion of factual material. I believe that that kind of information, provided it was carefully and impartially put together and presented, would have a perfectly proper place in an Electoral Commission program. There is a danger in incorporating the kinds of qualifications that Senator Hill is insisting upon.

Furthermore, the suggestion that the Commission should be expressly precluded, in the language that Senator Hill proposes, from providing information aimed at promoting one side of the case or the other, is either quite redundant or, I believe more worryingly, unduly narrowing in its effect. On one view, of course, it is redundant simply because 7A (1) (c) which I read a moment ago does not give the Commission power to favour one side. Certainly it is strongly arguable that the Commission would be acting beyond its existing statutory charter if for a moment it purported to do so or acted in such a way that could so be construed .

The other aspect of it is, as I said, more worrying. If the words are treated as not redundant, the restriction could prevent the publication of almost any information on the ground that information is only provided for the purpose of encouraging a Yes vote. One can imagine an argument of that kind being put forward in order to give some meaning to the words which we would argue to be otherwise redundant in this particular clause-perhaps an unlikely point of view, but not by any means a far-fetched one when one appreciates that it is a basic rule of statutory construction that words have to be given some meaning to justify their appearance in a statutory provision. There is every chance that the court might feel inclined to give these words that Senator Hill proposes some meaning beyond their ordinary first blush natural meaning because of that rule of statutory interpretation that effect should be given to every provision, that redundancy should be avoided if possible in the construction of an enactment. Thus I suggest to Senator Hill that there are really technical lawyers' arguments for rejecting the amendment that he proposes. They are not arguments that I put forward with any motivation other than a genuine desire to ensure that this section, in the form in which it has been moved by the Democrats, operates as it is manifestly intended to operate to ensure that an impartial Electoral Commission can in fact supply information which is genuinely that and which will assist electors to understand the nature of the proposal being put to them.

As Senator Hill himself acknowledges, his amendment is born of something of a surfeit of suspicion as to what other people's motives might be in the light of a rather uncharitable view of recent history. Based as it is on that motivation rather than on any grounds of technical necessity, the amendment has a danger of proving to be a rather more fierce amendment than Senator Hill thinks it in fact is. The words he is putting there have a capacity to be quite destructive of what he and, presumably, the Democrats are trying to achieve. In that spirit of general enlightenment and frank exchange on the merits of matters, I commend the arguments I have just made to the Democrats in order that they might react accordingly to Senator Hill's amendment.