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Wednesday, 15 May 1957

The TEMPORARY CHAIRMAN - I suggest that the honorable member is getting a little bit away from the clause before the committee. An interpretation of the Constitution is not included in this clause.

Mr WHITLAM - The suggestion I am asked to consider is surprising. It was asked by the Minister and you, sir, permitted him to ask it.


Only insofar as it was related to the bill.

Mr WHITLAM - I have given what I consider to be the answer to the suggestion. The third matter which the Minister asked me to consider in dealing with clause 4 is that it is still open to this Parliament under the Constitution, irrespective of the Commonwealth Electoral Act, to determine any questions respecting the qualification of its members itself. The Minister pointed out that section 47 of the Constitution provides that any question respecting the qualification of a senator or of a member of this chamber shall be determined by the House in which the question arises. He said that, since the Commonwealth Electoral Act merely says by section 203 that such questions may be determined by the Court of Disputed Returns, it is still open for this Parliament to deal with such a question if it wishes. I am not prepared to be as dogmatic on this matter as the Minister is, but I think the answer to his question is that section 47 of the Constitution provides that, until the Parliament otherwise provides, such matters shall be determined by the House in which they arise. Other provisions were made in 1918, and since then there has never been a decision on these matters by the House in which they arose.

It seems, if I may say so with respect, pretty plain now that Parliament has made this provision, under the Constitution it is no longer open to Parliament to consider these matters. It is true that the Parliament could make other provisions. It could repeal or amend the Commonwealth Electoral Act. If the Minister were to say that, in his view, the Commonwealth Electoral Act should be amended to add the words " may be determined by the House of the Parliament in which it arises ", then I would see that his logic was consistent. It is open to us to do it and, if he decides to recommend that, we will consider it on its merits. But he is asking- us to approve this new clause in the Papua and New Guinea Bill in a way similar to - he does not say identical with - the Commonwealth Electoral Act. The similarity ceases with the very relevant consideration that the Minister is now seeking to have two methods for the Territory. There has never been more than one for each House of this Parliament.

Let the Minister be consistent and advocate that the Commonwealth Electoral Act be amended to provide that the question of qualification may be determined either by the House of the Parliament in which it arises, or by the Court of Disputed Returns. That is one logical step that he could take. It would be consistent with what he now advocates for the Territory of Papua and New Guinea. Alternatively - and this is what we ask him to have the courage to do - let him omit from proposed new section 38a of the principal act the provision for this new and invidious alternative method of letting the Legislative Council determine the matter itself. If the Minister were to do that, once again, he would be consistent. He would be following the practice which has been followed in both Houses of this Parliament for nearly 40 years. Let him not be stubborn about it and say that one thing is appropriate for this Parliament and another is appropriate for the Legislative Council of the Territory of Papua and New Guinea. If there is any matter of principle involved, the same method should apply to both.

One thing should apply to both, or both things should apply to both. The simple thing for the Minister to do is to omit the few words to which we object, which, as one of the alternative methods, permit the question to be determined by the Legislative Council itself. We say that the provision is invidious, because it will allow the question of the qualification of members of the Council to be determined by their colleagues, who may be hostile to them, or who may be in their pockets, and because it is wrong that such a question, upon which turns the whole honesty and propriety of administration, should be determined by people who may be in a position similar to that of the person whose qualification is being determined.

If there is to be propriety in these matters, and if administration is not only to be clean, but also to have the appearance of cleanliness, the proper thing is to ensure that, in the Legislative Council of the Territory, as for nearly 40 years in both Houses of this Parliament, such matters shall be determined, if at all, by a court, the members of which, although, admittedly, appointed by governments, hold office for life whether their decisions please or displease governments. If it is appropriate for the High Court of Australia to be the only body which can determine such matters, or, if the High Court thinks fit, for the Supreme Courts of the States to determine such matters, where they arise in either House of this Parliament, surely it is appropriate to carry the similarity through to its logical conclusion and ensure that, in the Territory, the outside interests or other qualifications of elected and official councillors alike shall be determined by a similar dispassionate and impartial body.

The TEMPORARY CHAIRMAN.Order! The honorable member's time has expired.

Question put -

That the clause be agreed to.

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