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Monday, 24 May 1965

Senator McKENNA (Tasmania) (Leader of the Opposition) . - As apparently no other honorable senator wants to speak on this matter I will close the debate. I was interested to hear what the Minister for Defence (Senator Paltridge) said about the importation of any element of comparison with the United States of America. 1 make it quite clear that my main purpose in adverting to that was to draw attention to the legal comparison between their Constitution and our own. I referred to the fact that the American Constitution provided that representatives in the Federal sphere should be chosen by the people of the States, whereas our Constitution provides that they shall be chosen by the people of the Commonwealth. There is very little difference in the terms, and no difference in the significance. All I indicated was that the terms had relevance in showing that the factors which influenced the American Supreme Court operated here.

If I may mention it for one moment, in view of the matter being raised on this motion by the Minister, the reference I made to the case of Baker and Carr was in terms that it had initiated a flood of cases. That was not the case upon which the Supreme Court of the United States dealt with the merits of apportionment in Tennessee. The only question there before the court was whether a Tennessee State court had jurisdiction to entertain an application for a declaration of invalidity in relation to redistribution in that State. The judgment in the Baker and Carr case did no more than decide that the State Court of Tennessee had the power to deal with the matter. It reversed the lower court's decision on that point. I am surprised, in a case of that type decided by the court, to find the Leader of the Government invoking not the judgment of the court - and the case was decided by six to two - but the comments of one of the judges, who was in a minority. I merely want to say that at no stage did I suggest that what was happening electorally in Australia was anything like the extreme condition that I described in relation to the United States. My comment, on giving the figures, was that once a gerrymander commences it becomes cemented in and it extends and grows until you get a distortion of the type I put before the Senate.

Coming directly back to the motion, I think that Senator Cohen in the course of his remarks has furnished two more powerful reasons why the Senate should refer this matter to a select committee. In the first place, there has been no proper consideration at all of the recommendations of the Constitutional Review Committee. The members of that Committee gave months of their time to a consideration of this and allied matters, and there has been no adequate debate, and it is not possible to have an adequate debate either in the Senate or in the Committee stage of our discussions, on this topic. That is an additional reason why, in calmness and objectivity, our representatives on a select committee should consider this matter and be in a position to inform the whole Committee on it at a later stage.

The second point is this: There have been references to cases backwards and forwards in the United States in America. I venture to suggest that most honorable senators are not even aware that cases of such a kind were pending. Yet they are legion, as Senator Cohen has explained. It is desirable that the great principles covering the point we have been discussing which have been established by the United States Supreme Courtin their relation to a Constitution comparable with our own should be analysed and understood and that the concise form and effect of the judgments in the cases which established those principles should be presented to this Senate by the suggested committee. I think I have outlined two additional reasons for which the Senate is indebted to Senator Cohen.

The Leader of the Government addressed an argument to the Senate a moment ago to the effect that there is no need for us in this Senate to worry about this matter because the whole thing has been debated in the House of Representatives by people who are concerned in the subject matter of clause 3 of this Bill, which refers to the division of States into electoral divisions. Well, I never thought I would live to see the day when a Leader of a Government in the Senate would so demean this House as to suggest that because there had been an adequate debate elsewhere on a subject the Senate should abdicate its responsibilities.

Senator Henty - The Minister did not say that.

Senator McKENNA - I know perfectly well what he said. What other conclusion is to be drawn from a statement that the matter has already been defeated adequately, according to the honorable senator, by people who are more interested than we are? Those were the propositions that he put.

Senator HENTY (TASMANIA) - He said it was more in their interests.

Senator McKENNA - It is nothing of the kind. The House of Representatives is only one portion of the Parliament of the Commonwealth, and this House has powers co-extensive with those of another place. I regret to see the day when the Leader of the Government in this Senate is prepared to address to honorable senators an argument such as he addressed this afternoon. I think it is in complete derogation of the dignity of this place and of its rights. I think that, in saying what he said, the Leader of the Government merely gave the Senate an additional reason why it should take the time to refer this Bill to a select committee. I commend that course.

Question put -

That the motion (Senator McKenna's)be agreed to.

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