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Thursday, 27 September 1973
Page: 1642

Mr COOKE (Petrie) - Last Tuesday evening when I sat listening to the Leader of the House (Mr Daly) introducing this measure I was reminded of the limerick:

A smiling young lady from Riga

Once went for a ride on a tiger,

They returned from the ride

With the lady inside

And the smile on the face of the tiger.

I can see at the dispatch box the tiger smiling happily. The Leader of the House has a tremendous record for survival. He was a member of this House when the Chifley Government fell; he was a member of this House when the Labor Party split asunder in the 1950s; he was a front bencher in the House not so very long ago but was dumped; and last year he made a remarkable recovery in being reappointed to the front bench of the House and becoming Minister for Services and Property. A man with such a record of survival in a Party such as the Labor Party cannot help but become an expert in the numbers game, which is exactly what these Bills are about.

Of the 2 Bills before us one is simply a machinery measure which is inconsequential, so I do not propose to address any remarks to it because if the Senate (Representation of Territories) Bill 1973 (No. 2) is defeated, as the Opposition hopes it will be, the Representation Bill will become unnecessary. The Senate (Representation of Territories) Bill 1973 (No. 2) seeks to allow Senate representation for two of the Commonwealth Territories. I mention this because only 2 Commonwealth Territories are being singled out for the righting of the great wrong that the Leader of the House believes we have been labouring under for so long. It is interesting that the magical figure of two has been chosen by the Minister as being the apropriate number of senators to represent the Australian Capital Territory and the Northern Territory. I suggest that this proposal has been motivated by the difficulties which the Government now has, and which the Government had when it was in Opposition for many years. Because of the proportional representation procedure of electing, senators it has become increasingly clear that the Australian Labor Party will very seldom be able to command an absolute majority of the upper House.

Of course we all know that the Government's real intention is to abolish the Senate completely, so there is a certain amount of hypocrisy in pretending to give representation in the Senate to Territories when it is the policy platform of the Labor Party to abolish the Senate in any event.

One must look a little closer at the motives of the Minister who introduced this Bill. He went to great pains to point out that the purpose of the Bill - its only purpose - is to provide a measure of representation. We know that - at least until the recent Budget - the Australian Capital Territory has been considered by the Labor Party to be a safe Labor electorate. I suppose that Government supporters anticipate that the Government would win the 2 Senate seats because their margin is so great in the Australian Capital Territory. If Government supporters are looking for ways of trying to get numbers in the other House they have to give up the idea of winning them in the States and look around for some other curious method of building up their numbers in the Senate. That is the purpose of this Bill. The Labor Party members probably believe that they could win the 2 Senate seats in the Australian Capital Territory. Of the 2 senators to be elected for the Northern Territory, Government supporters might imagine that they could win one seat so they would be prepared, on those figures, to give one away in order to get three. With the election of 3 Labor senators the balance of power in the Senate would be completely disturbed and would fall more favourably into the hands of the Government.

Once having provided Senate representation for the Northern Territory and the Australian Capital Territory there is no logical reason why Senate representation ought not to be provided for Norfolk Island, Cocos Island and all the other Territories of the Commonwealth. If the Government picks up one senator from here and one senator from there it can eventually erode the balance of power in the Senate and put it in a much more favourable position. That is exactly the object of this Bill. However, as in many cases with this Government, the Constitution is completely ignored. The Government seems to imagine that the Constitution is something which was written many years ago and which does not really apply today. I am afraid that the Government is in for a few shocks this year and next year when some of its more controversial legislation is challenged in the High Court. It may find that the Constitution is a vibrant and living document which curtails any ambition for power which it may have. When the Government gets into constitutional difficulties its favourite tack is to say: 'We will have a referendum'. At present the Australian people are committed to something like 7 referendums, all of which will cost millions of dollars to hold. The Government is putting the first of these referendums to the people on 8 December this year.

I shall deal briefly with the constitutional difficulty that lies in the way of this Bill. Section 7 of the Constitution, which deals with the creation of the Senate, provides that the Senate shall be composed of senators from each State. I read that provision to mean that in order to be a senator, the senator must be from a State. The Leader of the House relies on advice which he has received from his legal advisers. The advice has not, of course, been tabled in the House so that we can see the basis on which it proceeds. It seems to me curious because the basis of that advice would seem to be that the word 'senator' in section 7 of the Constitution means something different from 'senator' in section 24 of the Constitution. On any principle of legal construction that would be an almost impossible situation. If the same words are used over and over again in one document, the law normally would presume that they are used in the same sense in each context. The Leader of the House may find himself again in legal difficulties if this Bill should happen, by some chance, to come into law.

The Leader of the House wants the senators representing the Territories to be elected for 3-year terms or for terms which would coincide with House of Representatives elections. If the Leader of the House is consistent in wanting to provide equal opportunities for Australian citizens, whether they live in the Australian Capital Territory or the Northern Territory, to be represented in the Senate, the basis of their representation should be the same as for those citizens who reside in States. In other words, their senators should be elected for a full 6-year term. This, of course, is another matter which has caused great embarrassment to the Labor Party over a continuing period of time. The fact that Senators are elected for longer periods can create some check on the rashness and extravagance of Labor governments. This is another attack on the constitutional foundation of the Parliament of the Commonwealth.

It is trite to say that the Senate is a States House. The Leader of the House, when he debated the subject on the last occasion, poohpoohed that idea and said: 'Whoever thinks that senators vote on State lines any more?' If they are members of the Labor Party they certainly do not because that Party has the same monolithic structure for the whole of Australia. All members of that Party are committed to the same platform and if they do not toe the line they get rapped across the knuckles and flung out of office. On this side of the House the situation is quite different and, as the Government should have reason to remember, senators on the other side of Kings Hall sometimes exercise their minds on matters of policy and vote according to the State interests they represent. I suggest to the Leader of the (House that he has suffered several rebuffs during the course of this Parliament which would indicate that senators have, in fact, voted according to their State interests if they were important enough.

Mr Daly - Like the Democratic Labor Party.

Mr COOKE - The Leader of the House knows about the Democratic Labor Party I suppose. He is friendly with its members at the moment. I do not know that he was too friendly with them a decade ago.

Mr MacKellar - The Prime Minister was sitting down at lunch with them.

Mr COOKE - Was he indeed? That may be. I see that the tiger has a very nice smile on his face again now. This tiger wants to lead us along the garden path and have us believe that really all he wants to do is to provide for democracy. As I pointed out it is really back to the old numbers game for the Leader of the House. What he cannot get one way he has to engineer another way.

I have already mentioned the discrimination which appears in this Bill against senators coming from the Territories. They are to be elected for only 3 years and will be elected together. Of course, the Leader of the House says: 'That is very fair because the other side might win one of the Senate seats and we might win one of the Senate seats.' But I will bet that the Leader of the House had some figures prepared before he introduced this Bill which would suggest that the Government might do rather better than 50-50 at a Senate election from the Territories. The only reason he has not introduced a Bill to give representation in the Senate to Norfolk Island is that he probably realised that if he did that he would be going too far. He would be disclosing the nakedness of his hand to the general public. So he has to do one bit at a time.

The inconsistencies in this Bill would seem to suggest that it ought to be rejected. As 1 have suggested the legal opinion which the Leader of the House has received and which would suggest that 'senators' under one section of the Constitution should be read differently from 'senators' in another section of the Constitution can only amount to a certain degree of sophistry - window dressing to avoid the real issue which is to provide more seats for his particular persuasion in the other House. It is interesting too that he is not prepared to go the whole hog and introduce a Bill for self-government in the Northern Territory. If he did that there would be no problem. The Northern Territory could be admitted as a new State of the Commonwealth and be given 10 senators. The Territory would be amply represented in those circumstances.

The reason why senators were made to come from States and not from Territories controlled by the Commonwealth would be fairly apparent to anyone except blind Freddy. The Commonwealth Government, having control of all the expenditure in the Territories, can more readily persuade voters to its point of view - that is the Government in power at the time - than would be likely to be the case if there were self-government in the Territories. For these reasons I tell the Leader of the House that we will not have a bar of this disguised attack on constitutional government and the constitutional balance in Australia. We will oppose the Bills here and we will oppose them elsewhere.

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