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Thursday, 15 November 1973
Page: 3407

Mr SNEDDEN (Bruce) (Leader of the Opposition) - This Bill has 7 clauses and as a result, if the referendum is put, what will be put to the public is an acceptance of the entire 7 clauses. The whole Bill goes together. There is no part of the Bill that can be taken separately. I think it is important to make that point. The first clause merely gives the short title. The second clause provides that the Bill shall come into operation on 1 July 1976. Clause 3 provides for the deletion of section 25 from the Constitution. I wish to make it clear that we on the Opposition side would support the deletion of section 25 from the Constitution, but that cannot be done separately. The whole of the Bill stands together. Section 25 of the Constitution reads:

For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

I think this is the sort of thing which historically went into the Constitution or legislation and which progressively ought to be taken out because of its radical overtones. So I think that can be put aside.

Clause 4 of the Bill deals specifically with the Commonwealth Parliament. It is a most remarkable clause in that it proposes that there shall be added certain words after section 29 of the Constitution. I will not read the whole of that section. I will read just the significant words which are the opening words. It reads:

Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State may make laws for determining the divisions . . .

The fundamental point is that the Constitution gives to this Parliament the right to provide for the determining of divisions in each State for the House of Representatives. This power is already available. Everybody must wonder, upon looking at that section, why it is necessary to amend the Constitution to give the Parliament power to do something which it now possesses power to do. It has always possessed that power. We have the power in this Parliament. There could be legislation introduced, as indeed there was earlier this year, to deal with the question of determining the divisions for the House of Representatives. We now have a proposal to add certain words to that section which, if adopted, will give a new power. If the proposed new power is examined according to the rules of interpretation it will be seen that it is a lesser power than the power that already exists because the present power is totally untrammelled and unqualified. This Bill proposes to add to section 29 of the Constitution these remarkable words:

The numbers ascertained in respect of the several divisions of a State by dividing the number of people-

Please mark the words, 'the number of people'- in each division by the number of members to be chosen for the division shall be, as nearly as practicable, the same.'

It therefore involves 2 propositions. The first is to make a substitution in the present legislation - not the Constitution - pursuant to the Constitution which now provides that the division into electorates shall be on the basis of electors. This clause proposes a constitutional provision to make it 'people' instead of 'electors'. There is a very big difference between electors and people. Electors are those who are qualified to be enrolled and to vote. People includes everybody who lives in Australia - those who are not yet naturalised, those who are not yet 1 8 years of age and those who for any reason have not put their names on the electoral roll even though it is an offence not to do so. So the proposed change is very significant. Yet there is no absence of power in this Parliament to introduce legislation to do exactly the same thing which this Bill proposes. There is no want of power at all. Yet we are going through this facade of a referendum to give us power to do something we already possess power to do.

Mr Cooke - And very expensive too.

Mr SNEDDEN - And it is very expensive, as I am reminded by my friend and colleague. The second proposition is that all those electorates should be as nearly as practicable the same. Let me examine the consequences if this clause were passed. Firstly, it would take away forever the power to divide on the basis of electors and it would require it always to be on the basis of people. It needs to be examined in demographic terms to ascertain just what the consequences are. Everybody will know that within a metropolitan area there will be some suburbs which are peopled by elderly people. Twenty or thirty years ago those people were young married couples with a family. Today they still live in the same house but their children have grown up and have gone off to new suburbs. In those new suburbs there are young families with three, four or five children. The population in the newer suburbs will be higher than it is in those areas which are now peopled largely by those in middle age. If I may take an example, in my electorate, the area of Glen Waverley is a young area with a higher population than, for instance, Caulfield or Malvern which have low populations. What we do now is to distribute electoral boundaries on the basis of the number of electors because we believe that is the proper and democratic way to do it. There are other demographic areas such as Carlton and Richmond where there is a great number of migrants who are not yet naturalised and therefore cannot be placed on the roll. Those areas have a very high population but a relatively low number of electors.

In regard to rural areas, we all know that it is the purpose, I think, of both Parties to try to achieve decentralisation in order to provide employment opportunities for young people living in country areas who are now faced with either unemployment because of structural unemployment or the necessity to go to the city. It is a tragedy but it is happening. Therefore in the rural areas the ratio of electors to population is more nearly in balance than it is say in Carlton, Richmond or Redfern.

Let me illustrate the consequences of this proposal by which the Government seeks to make the number of electors in each electorate as nearly as practicable the same. If this is done on a population basis, it may be possible to have numbers of electors as nearly as practicable the same but enormous differences will exist in the number of persons in the electorates. The value of an elector's vote will vary greatly depending on which suburb he lives in or whether he lives in the city or in the country. That is totally the reverse of the proposition which is constantly being put by the Government and the proposition which was put in the Electoral Bill earlier this year. It is either a giant somersault or a sheer failure by the Government to be able to apply a logical mind to legislative proposals.

Let us examine what would happen under these terms. There would be vast differences in the number of electors in electorates. If the number of electors in each electorate must be as nearly as practicable the same, there can be no legislative capacity to provide that the size of an electorate will depend upon difficulties of communication, distance, community of interest and so on. If one adds the fact that the Government does not have the power to do that to the proposal for distribution according to the number of people in an electorate, one doubles the problem. The divergence is made even greater. The result can be seen by taking as an example the electorate of Darling where the population more equates the number of electors. In that case, the honourable member for Darling (Mr Fitzpatrick) would represent not merely what is known now as Darling; his electorate would extend into the electorate of Riverina. He would have an enormous electorate. One can imagine haw large the electorates of the honourable members for Leichhardt (Mr Fulton) and Kennedy (Mr Katter) will be.

If we look at the electorate of Kalgoorlie, which I understand covers approximately three-quarters of the whole land mass of Western Australia, and compare the relative population of that electorate to electors, and if we eliminate any possibility of provision for distance, difficulty of communication, community of interest and so on, the electorate of Karlgoorlie will end up covering about seven-eighths of the land mass of Western Australia. The 2 electorates of Kennedy and Leichhardt would probably cover more than 50 per cent of the land mass of Queensland. My friend, the honourable member for Wakefield (Mr Kelly) represents already a large part of South Australia. If the present criteria were removed or were enforced in terms of a constitutional amendment, the honourable member for Wakefield would represent about threequarters of the land mass of South Australia.

Mr Killen - Eccles would not like that.

Mr SNEDDEN - Eccles would not like that. Wait till Eccles hears about that. The Government is trying to hoodwink the people of Australia into unknowingly making this proposal a constitutional requirement when the Parliament, on examination of all the concepts, refused to accept it.

I refer next to clause 5 of the Bill - it is another remarkable clause - which seeks to add certain words to section 30 of the Constitution. I shall read the power that is given to this Parliament under section 30 of the Constitution. That power is untrammelled arid unqualified. Section 30 states in part:

Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State . . .

I repeat the words: 'Until the Parliament' - > this Parliament - 'otherwise provides'. Therefore, under the Constitution we have total power to say that everyone who has red hair and is 10 years of age can have a vote. That is a stupid proposition but I put it in that sense merely to explain that the Government does not lack that power. Yet, for some unexplained reason the Government is to put a referendum to the people to change the Constitution in order to give it power to do everything which it now has power to do.

Again, if this proposal was passed, a proper legal interpretation indicates that it would have a diminishing power to what was originally granted. The words proposed to be added to the Constitution are:

Laws made by the Parliament for the purposes of this section shall be such that every Australian citizen who complies with any reasonable conditions imposed by those laws with respect to residence in Australia or in a part of Australia and with respect to enrolment and has attained the age of 18 years is, subject to any disqualification provided by those laws with respect to persons of unsound mind or undergoing imprisonment for an offence, entitled to vote.

Therefore, there are 2 propositions contained in this clause. One is that every Australian citizen shall have the right to vote. That means that the parliaments have to be directly chosen by the people. The second proposition is that everybody 18 years of age and over shall have the vote. This is what the Government seeks to amend the Constitution to achieve. We are talking about the Commonwealth Parliament

Is there any honourable member or. any member of the other place who would seriously assert that the House of Representatives or the Senate is not directly elected by the people? There is not a person in Australia who enrols, and who is not of unsound mind or undergoing imprisonment, who is not entitled already to vote for the House of Representatives or the Senate. That right already exists. It exists pursuant to legislation enacted under the power of section 30 of the Constitution. So, every Australian has the right to vote and the 2 Houses - the House of Representatives and the Senate - are chosen by the direct vote of the Australian people.

The other proposition put forward is that every person 18 years of age and over should have the right to vote. Has any honourable member forgotten that earlier this year, with the support of all parties, all members of this House and all members of the Senate, we conferred a vote on all people aged eighteen and over? According to the Government we are going to the people to ask them to give everybody direct power to vote, and everybody who is aged eighteen or more the right to vote. This provision already exists. This proposal is a complete nonsense.

I refer next to clause 6 which states:

Section 75 of the Constitution is altered by adding at the end thereof the following paragraph:

The High Court shall have original jurisdiction in matters arising under sections twenty-four, twenty-nine, thirty, fourty-one or one hundred and six a of this Constitution. . . .

The first words of section 75 of the Constitution deal with the original jurisdiction of the High Court of Australia. It states:

In all matters -

(i)   Arising under any treaty;

(iii)   In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:

(iv)   Between States or between residents of different States, or between a State and a resident of another State:

(v)   In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth: the High Court shall have original jurisdiction.

This is clear enough. Section 76 of the Constitution which is not mentioned in this Bill - mark these words - states:

The Parliament may make laws conferring original jurisdiction on the High Court in any matter -

(i)   Arising under this Constitution, or . . .

(ii)   Arising under any laws made by the Parliament.

The powers which the Government is trying to obtain by putting, a referendum to the people to alter the Constitution it already possesses. All it has to do is introduce a Bill in the House and pass it. The Government wants to go to the people at a referendum to ask for the power to do something which is already provided for in the Constitution and has always existed. The proposition put forward by the Government is a nonsense, and honourable members opposite know that it is a nonsense.

Clause 7 of the Bill deals with the States. In effect what it really does is to apply to each of the State parliaments the same provisions which the earlier clauses that I quoted would apply to the House of Representatives and the Senate in this Parliament. It provides that every Australian citizen who complies with reasonable conditions about enrolment shall have a vote for all Australian Parliaments.

There is one chamber only in Australia which is not elected by the direct vote of every State citizen, and that is the upper House of New South Wales. I believe there was a referendum a few years ago in New South Wales for the purpose of dissolving that House, getting rid of it, and it failed. That House has existed to this day, and its members are elected by the combined vote of all members of both Houses of the legislature. The consequence is that one can only assume that this provision will permit a determination by the people of Queensland, South Australia, Tasmania, Western Australia and Victoria as to what should be the provisions for the upper House of New South Wales. Why should the Commonwealth Parliament say, through all the people of Australia in the other 5 States, what shall be the conditions for the upper House in New South Wales? That is the sole purpose of this clause. The other provision in clause 7 is that everybody over 18 years of age shall have a vote for State elections. Can anybody tell me which State either has not now got law or has not legislation before the Parliament to provide for 18 year old franchise? In all States 18 year olds already have the right to vote or will have by the next election. Therefore, why do we need a constitutional referendum to force the States to provide a vote for 18 year olds when the States have already given it?

The final provision is that, just as with Federal electorates, the State electoral divisions will be resolved on the basis of population instead of electors. In this provision we run into the same problems - only they are worse in the State sphere. It means that a State electorate which is now determined on the basis of electors in future will be determined on the basis of population. With the State electorates being smaller than Federal electorates there is an even larger difference between the number of population and the number of electors. In one area the ratio of electors to population may be 1 to 1.5, in another it may be 1 to 2 and in another area it may be 1 to 1.25 depending entirely on the age structure of the people living there or on the geographical distribution of the population. Mostly adults live in the remote outback. In certain parts of the metropolitan areas the population consists mostly of young families with a lot of children. I do not believe that it is a democratic proposition to determine electorates on the basis of people.

Again there is a provision in clause 7 that the numbers in each electoral division shall be as nearly as practicable equal, therefore doing away with all considerations of transport difficulties, communication difficulties, etc. Let me give an illustration. There is an electorate in South Australia named Eyre. The member is Graham Gunn. He is a very fine member too. His electorate has 9,441 electors and comprises 50 per cent of the land mass of South Australia. Next door to him is the electorate of Frome, with about the same number of electors and covering 38 per cent of the land mass of South Australia. Between the two of them these electorates cover 88 per cent of the South Australian land mass. If this provision went through, these 2 State electorates would be combined into one and we would have one electorate extending over 88 per cent of the land mass of South Australia. Is it right for this Parliament to determine that or to put it to the people in Sydney, Melbourne, Brisbane or Perth that this is the way it ought to be done? Of course it must be left to the State Parliaments. Incidentally, the electorate of Eyre is bigger than the whole of Victoria. It runs from the Western Australian border to 50 miles from Port Lincoln, from the Northern Territory border to Andamooka. That is how big it is. But just over the border in Western Australia is a State electorate which is even bigger, and it has only 2,000 electors. Are we to say that the Western Australian State Parliament cannot authorise its electoral distribution commissioners to form an electorate of that size for the specific pur- poses it has in mind? This is taking upon ourselves the idea of authoritarianism in Canberra, the like of which was not intended by the Australian people at any time of their history, and I am sure it will not be their intention in the future. Everybody can think of these examples in Western Australia, South Australia, to some extent in Victoria, and certainly in New South Wales and certainly in Queensland.

Is it any part of our purpose to put together 2 extraordinary conditions? One is that we change the basis for creating electoral divisions from the number of electors to the number of population, and the other is that we eliminate any prospect of making any special allowances for the size of the territory which an electorate may cover. I spoke to Graham Gunn on the telephone only a short while ago. He told me that, to cover his electorate, each year he drives 50,000 miles in his car. Would Mr Speaker, who represents the electorate of Redfern, travel 50,000 miles in Sydney? I think that from what I have said it has been demonstrated that there are two fundamental propositions in this Bill. The first is that the Bill is unnecessary because all the things it would do we already possess the power to do just by legislation. It is totally unnecessary to have the referendum. Secondly, if the referendum were passed, it would be imposing on this Parliament and upon the State Parliaments conditions which would not contribute to democracy but would make democracy in certain areas unworkable. Therefore I believe that this referendum proposal should be rejected.

The Government has the numbers. We know that it will use the numbers. Notwithstanding the arguments that are put, it will use the numbers and the question will go to the people. The way in which the question will go to the people will be in accordance with the long title to the Bill. The long title to the Bill states that it is a Bill for an Act:

To alter the Constitution so as to ensure that the Members of the House of Representatives and of the Parliaments of the States are chosen directly -

There is nothing wrong up to that point. That is a fair description. Even though it may be faulty in logic, it is a fair description, but then it adds these words: and democratically by the People.

It is an assertion of two remarkable things. Firstly, it is an assertion that the Government was not elected democratically. What an extraordinary proposition. The Government is putting the proposition that it was not elected democratically. Now it wants to amend the Constitution to make sure in the future it will be elected democratically. It is also an assertion that there is not a single State Parliament that was elected democratically. That is a nonsense. Therefore, because this is the question which will be put to the people, I have formed the words which I will put as an amendment to the long title. Normally one does not bother about amending a long title to a Bill because the Bill speaks for itself. But in a referendum proposal it is not the Bill that people read; it is the long title that they read. Therefore, I give notice that I will be moving at the Committee stage, if I am permitted to do so - there are only about 15 minutes left for the second reading debate, a division and then 7 minutes in Committee - to delete the words and democratically' and add the following words: and that the criterion for determining the size of an electoral division shall be the number of people within it.

I disagree with the proposals in the Bill but I think that if we are to put the question to the people it ought to be described properly to the people. This is the way the long title will then read:

A Bill for an Act to alter the Constitution so as to ensure that the Members of the House of Representatives and of the Parliaments of the States are chosen directly by the people and that the criterion for determining the size of an electoral division shall be the number of people within it.

That would be a fair description of this Bill.

This is one of the most poorly thought out pieces of legislation that has ever been put before this Parliament as a proposal on which the people of Australia should vote. To give powers by the Constitution which were given in the Constitution at Federation is to pretend that the Australian people do not understand and are foolish. The fact is that the people of Australia do understand. It will be the Opposition's purpose to make sure that they understand. The Opposition asserts that they are not foolish. Therefore, we will oppose this referendum Bill and I believe that the Bill will be soundy defeated, as it deserves to be.

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