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Wednesday, 13 June 1984
Page: 2881

Senator GARETH EVANS (Attorney-General)(10.09) —I move:

That the Bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows-

Mr President, this Bill and the Constitution Alteration (Interchange of Powers) Bill 1984 were part of the machinery of government referendum package which was to have been put to the electors last February. The first will alter the Constitution to ensure that Senate elections and House of Representatives elections are always held on the same day and to adjust the terms of senators accordingly. The second will enable the Commonwealth and the States voluntarily to refer powers to each other. As you will no doubt recall, the Government decided not to proceed with the referendums in February because of the action taken in the Senate by the Opposition and the Australian Democrats to block government advertising in support of the proposals. The Government has decided to proceed with referendums on the simultaneous elections and interchange of powers proposals, which will now be put at the next election.

To put all five of the original machinery of government proposals in conjunction with an election would have been too complex. It is vital that electors have a proper understanding of the issues involved in a referendum so that they can cast informed votes and thereby play a meaningful role in constitutional reform. That is why the Government is only proceeding with two of the proposals at this time. However, this does not mean that the others have been abandoned. The Government remains firmly committed to systematic constitutional reform and will keep the balance of the February proposals as well as a number of other important proposals under consideration for putting to referendum at a later date. Both these proposals have been around in one form or another for a very long time. I do not propose to take up the time of the Senate by going over again in detail the ground I covered in my second reading speeches last year. However, I will briefly outline the purpose of each proposal and the arguments, for and against, which have been put in the Parliament and outside.

Simultaneous Elections

The Simultaneous Elections Bill is, apart from its long title and the transitional provisions, identical to the Bill I introduced into the Senate on 21 September last year. That Bill in turn was substantially the same as the one submitted to referendum by the Whitlam Government in 1974 and by the Fraser Government in 1977. The Bill alters senators' terms from 6 years to two terms of the House of Representatives and provides for half-Senate elections to be held at the same time as elections for the House of Representatives. The long title is in accordance with the position reached last year when the Senate debated the form of referendum questions. The title is 'An Act to ensure that Senate Elections and House of Representatives Elections are always held on the same day , and to adjust the terms of senators accordingly'. The form of referendum questions is now prescribed in the Referendum (Machinery Provisions) Bill.

The transitional provisions are sub-sections (10) to (13) of proposed new section 13. Unless there were to be a double dissolution, the effect of these provisions will be as follows:

There will be no alteration of the terms of those senators whose present terms are due to expire on 30 June 1985;

senators whose terms are due to expire on 30 June 1988 will hold office until the first expiry or dissolution of the House of Representatives after the commencement of the amendment-that is the House of Representatives elected at the next election; and

senators elected at the next election whose terms would have expired on 30 June 1991 will hold office until the second expiry or dissolution of the House of Representatives after the commencement of the amendment, unless there were an earlier dissolution of the Senate.

The arguments in favour of Simultaneous Elections are well known. By eliminating separate half Senate elections, the number of elections will be reduced, thereby allowing governments to get on with the job of governing as well as minimising inconvenience to electors and significantly reducing the cost to taxpayers. At present, a separate half Senate election costs approximately $ 21.8m and a separate House election $23m. Thus, the total cost of separate elections for the two Houses is now $44.8m. If simultaneous elections are held, the total cost reduces to $27m. This means that the extra cost to the taxpayer of a separate half Senate election is a staggering $17.8m. Put another way, simultaneous elections will save the taxpayer $17.8m on each occasion they are held.

But the benefits to the people lie not only in cost savings from fewer elections but in the fact that the elections which are being eliminated are the unnecessary separate half Senate elections, which cannot change governments and which, as is indicated by their much lower level of voter turnout, do not really come to grips with the issues of the day. In the 39 years since the end of the Second World War there have been no fewer than 20 Federal elections of one kind or another-7 combined House of Representatives and half Senate elections, 5 House of Representatives elections, 4 separate half Senate elections and 4 double dissolutions. In the last 20 years the pace has increased-11 elections, only 2 of them being combined, 3 House, 3 half Senate and 3 double dissolutions. Following the Fraser Government's February 1983 double dissolution, the terms of the Houses are once again out of phase. If they were to remain out of phase, no fewer than 7 separate elections would be due in the next 10 years-3 for the House of Representatives and 4 for half the Senate. By holding an early House of Representatives election to coincide with the half Senate election due before 30 June 1985, the Government will bring the two houses back into phase again. However the only way of ensuring that never again will elections be thrown out of phase is by amending the Constitution.

The simultaneous elections proposal will have other important advantages. It will ensure that the composition of the Senate at any given time reflects the current wishes of the people more accurately than under the present system and, by ensuring that the people's will is reflected simultaneously in both Houses, it will provide a more satisfactory electoral basis upon which the government of the country can proceed. It will also provide greater accountability of the Senate to the extent that senators themselves will have to face the people if the Senate's actions lead to a premature House of Representatives election.

A small minority of honourable senators opposite have suggested that the Bill is really aimed at undermining the independence of the Senate. I wish to make several points about that. First, the Senate does not exist in a political vacuum. The growth of the party system has meant that there are no matters of great significance to one House which do not also affect members of the other House. The 1983 double dissolution illustrates that, even without simultaneous elections, senators cannot regard their terms as being unrelated to events in the House of Representatives. Secondly, the independence of mind and action of senators is not dependent on whether or not their terms are fixed, but on their quality as individuals. And lastly, it should be stressed that the Bill does not affect the powers of the Senate. It will retain, for better or worse, all its present power to review, amend or reject legislation.

Quite different arguments have been put from outside the Parliament. The Queensland Premier has suggested that half Senate elections ought to be held separately from House elections. Political commentator Malcolm Mackerras, on the other hand, has argued that they ought to be held on the same day, but within the framework of the existing Constitution. Mr Bjelke-Petersen's argument has, I think, hardly any justification at all. It involves, over a period of time, enormous expense to the taxpayer and contemplates the institutionalisation of elections which change nothing, at which no great issues are at stake and which for practical purposes only decide who is to fill the last place on each State's list of vacancies. The Mackerras argument is, not surprisingly, made with reference to statistics of the relatively few separate half Senate elections since Federation but what is omitted or glossed over is an acknowledgment of how the picture has changed over the last 20 or 30 years in which elections for the two Houses have become chronically out of phase.

Interchange of Powers

The Interchange of Powers proposal has its origins in the submissions made to the Sydney meeting of the Constitutional Convention in 1973 by the governments of New South Wales and Victoria. The Bill aims to establish machinery whereby legislative powers can be vested by the Commonwealth in the States in areas previously outside their jurisdiction and to facilitate the reference of powers by the States to the Commonwealth.

With two exceptions, the present Bill is identical to the Bill I introduced on 12 May last year. As with Simultaneous Elections, the long title has been altered in accordance with the position reached in the Senate last year. It now reads: 'An Act to enable the Commonwealth and the States voluntarily to refer powers to each other'. Secondly, proposed section 108A has been altered by the substitution of the words 'the powers of the Parliament of each State' for 'the powers of the Parliament of a State' in sub-clause (1). The purpose of this alteration is to clarify the point that any reference of power from the Commonwealth is to be equally available to all States. It was always the intention that the Commonwealth should not be able to refer power to one or some only of the States. I understand that last year there were some misgivings on the part of some senators or members as to whether this intention had been carried out.

When I introduced the 1983 Bill in May last year, I outlined in some detail the history, significance and purpose of the Interchange of Powers proposal. It emerged from the first meeting of the Australian Constitutional Convention in Sydney in 1973, having been put forward in submissions by the then coalition Government of New South Wales and the then Liberal Government of Victoria. The then Prime Minister, Mr Whitlam, announced that the leaders of the delegations had been able to reach agreement in principle on the proposal and that Parliamentary Counsel would confer on the terms of an amendment. The announcement was welcomed by the leaders of State delegations but Queensland reserved its opinion on the merits. The history of the proposal since then has been one of successive endorsements by the Constitutional Convention of the principle of Interchange of Powers and expressions of concern in some quarters over points of detail. Interchange was endorsed by the 1975 Convention in Melbourne, the 1976 Convention in Hobart, the 1978 Convention in Perth and the 1983 Convention in Adelaide.

Bills to implement the proposal have been considered by this Parliament in 1974 , 1975 and, of course, 1983. In 1974 the Opposition wished to defer the Bill until it had been considered by the Convention. In 1975 the double dissolution put an end to Parliamentary deliberations and in 1983 the referendum was postponed. The significance of the 1983 Convention resolution on Interchange was that, for the first time, unanimity was achieved on the details of the proposal. The Bill presently before the Parliament faithfully reflects the terms of that resolution.

The Bill contains two principal reforms which will create the conditions for a more flexible response to political issues and facilitate greater co-operation between the Commonwealth and States. First, it corrects the present one sided situation in which the States may refer powers to the Commonwealth but the Commonwealth is unable to refer any of its exclusive powers to the States. This will mean, for example, that the Commonwealth could confer on the States the power to impose duties of excise and to legislate in respect of Commonwealth places. Secondly, the Bill clarifies the basis on which States may refer legislative powers to the Commonwealth. It makes clear that a reference given by the States will be revocable, that it may be given subject to conditions, including conditions regulating the type of laws that can be passed under it, and that such references may be made for a limited period. Other areas of possible application include:

Rationalising the fragmented conciliation and arbitration system;

obtaining uniformity in the regulation of State and private insurance; and

dealing with the gaps in federal family law.

The only arguments that have been put against Interchange are that it is, on the one hand, redundant because of the existing provision for references of power in section 51 (37) of the Constitution and on the other hand, dangerous because it may lead to wholesale references of power to the Commonwealth. It is said that State Governments of the same political persuasion might be all too willing to refer their powers to Canberra and that other States might be forced to do so by unspecified means. If either assertion had any validity it would be surprising that we have not already reached this position by use of the existing reference provision, section 51 (37). In fact, the argument that the Interchange proposal might enable the Commonwealth to coerce the States in some way ignores political realities. There are other provisions in the Constitution, for example, section 96, to which this kind of argument might apply, with more plausibility but, even there, the political accountability of Commonwealth governments makes the practical position quite different from what it might be said to be in theory. In any event, the two arguments cancel each other out. The same proposal cannot logically be both redundant and dangerous. In fact, it involves a very practical and sensible alteration to the Constitution which will encourage Commonwealth and State governments to co-operate to solve a range of difficult problems which have bedevilled Commonwealth-State relations for many years, to the detriment of ordinary people. The problems for which it offers a mechanism for agreed solutions are real practical problems such as that of clearly identifying the court which a parent or grandparent should approach to seek custody of a child or grandchild and identifying whether a State or Commonwealth arbitral tribunal should deal with a particular industrial dispute.

What is often overlooked is that the proposal will also allow the Commonwealth, for the first time, to refer some of its powers to the States. I do not shrink from acknowledging that this could lead to new State taxes but, where it does so , the Commonwealth will ensure that such taxes do not damage the national interest. By this means it will be possible for the States to raise money by more equitable means than are available to them at present in the limited fields of petrol and tobacco retail sales.

Opposition Attitude

The Opposition, with some dissentients, has previously indicated its support for both these proposals and I would expect that support to continue. Of Simultaneous Elections and Four-Year Terms Mr Peacock said, 20 October 1983, Hansard, page 2,032:

No one would deny that Australia has far too many elections. In the last 30 years the average life of the House of Representatives has been 2 1/2 years and in the 14 years to 1977 we had 10 elections. The difficulties this puts in the way of good government are obvious to all.

Senator Durack said, 12 October 1983, Hansard, page 1,358:

The Opposition acknowledges that a real problem has existed in Australia for the last 20 years and, in particular, since an early election was held for the House of Representatives in 1963.

Mr Anthony said, 20 October 1983, Hansard, page 2,047:

I believe also that the Senate should be accountable for any action it takes in stifling the operations of the Parliament or the government of the day. If the Senate were to block Supply there is no redress on the Senate unless double dissolution Bills are before the Parliament. The Senate could force the House of Representatives to an election without going itself. Whilst some senators argue that the Prime Minister should not have the right to take out half the Senate at the same time as the House of Representatives, I do not think the Senate should have the right either of sending the House of Representatives to the people without going itself. This is a sensible proposal which should be supported by the Australian people. I probably feel more strongly about this proposal than any of the others.

In addition, Mr Anthony effectively scotched the argument that the proposal would give the Prime Minister power over the Senate which he does not now have by pointing out that a Prime Minister can already create the circumstances for a double dissolution and call out the whole Senate. This point is underlined by the circumstances of the 1983 double dissolution election.

So far as the Interchange of Powers proposal is concerned, the following statements are indicative of Opposition support:

Mr Peacock, 20 October 1983, Hansard, page 2,032:

The third Bill under consideration relates to the interchange of powers between the States and the Commonwealth. Like some of the other Bills, it has a long history and has been endorsed by successive Constitutional Conventions. The object of the amendment is to give greater flexibility to State and Federal governments and greater certainty about the conditions under which powers may be referred. One benefit given by way of example is the empowering of State governments to impose sales tax. As the Attorney-General pointed out, the amendment might also improve the chances of achieving other worthy objectives such as uniform defamation laws and comprehensive family law powers at the Commonwealth level.

Senator Durack, 19 May 1983, Hansard, pages 617 and 618, also supported the proposal:

It had as far as I could see, unanimous support at the Adelaide Constitutional Convention in the amended form, which Senator Evans wisely agreed to, and it seems that it perhaps may in some circumstances be a useful facility to have in the Constitution.''

Mr Anthony, 20 October 1983, Hansard, page 2047:

The Constitution Alteration (Interchange of Powers) Bill is worthy of support. It makes for the better working of government. The interchange of powers has to be on a co-operative basis with the States. If there is some confusion or if there is duplication of authority between the States and the Commonwealth, an overlapping of powers, it makes good sense to get the States to do the work of the Commonwealth or the Commonwealth to do the work of a State. It has to be a voluntary arrangement. It can be done on a State by State basis if a State is referring power to the Commonwealth. If the Commonwealth is referring a power to the States, the power has to apply to all States and all States have to be in agreement. That proposal is sound and will make for better working of government .

Even Mr Hodgman, who expressed ambivalence towards the proposal in the parliamentary debate last year, said he thought it was a practical and sensible proposal when he spoke at the 1978 Perth Constitutional Convention.


Both proposals have received strong support from the Constitutional Convention, indeed the Interchange proposal was unanimously endorsed at the Adelaide meeting , and both were passed by overwhelming majorities in both Houses last year. Votes in the Senate were 43 to 12 in favour of the Simultaneous Elections Bill and 53 to 3 in favour of interchange. In the House the votes were 103 to 4 and 104 to 3 respectively. Not only do the proposals have the support of the Convention and of the Parliament, but according to a Morgan Gallup Poll held in December of last year, they also have the overwhelming support of the electorate . When the Simultaneous Elections proposal was put to referendum by the Fraser Government in 1977 it received 62.2 per cent of the national vote and only narrowly failed to gain the requisite majority in 4 States. Since that time public opinion has swung even more strongly behind the proposal. Of those polled in December, 80.3 per cent said they would have voted in favour, 10 per cent would have voted against and 9.7 per cent were still undecided. Moreover, the proposal would have gained a clear majority in all States. The Interchange proposal would have received a majority in 5 States, with 61.3 per cent overall in favour, 23.7 per cent opposed and 14.9 per cent undecided. Both Bills have attracted genuine cross-party support in the past. They should continue to do so . They are constructive measures which will contribute to the improvement of the system of government in this country. I commend the Bills to the Senate.

Debate (on motion by Senator Reid) adjourned.