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Wednesday, 21 November 1973
Page: 3608


Mr McMAHON (Lowe) - This is the sixth of a series of referendum Bills, with one more to come. It is another Bill in a long and continuing series to alter the Constitution by fraud and by deceit, and to do so without adequate thought and without adequate parliamentary discussion. Let us look first of all at clause 2 (c) of the Bill which proposes to alter section 128 of the Constitution to allow qualified electors in the Territories to vote. The words 'the Territories refer to electors in the Australian Capital Territory, including Jervis Bay, and the Northern Territory. There are 264,000 citizens in these territories, of which 130,700 are eligible to vote. The Opposition supports this proposal for the good and sufficient reason that all Australian citizens qualified under the laws of this country should be able to do so. I mention in passing that the 130,700 Territory votes will not be counted in the votes of the States in order to determine whether in a majority of the States a majority of the electors voting approve the proposed law. They will apply only to the total Australian vote.

There is a second proposal in the Bill in clause 2 (b). It proposes that the following words in section 128 of the Constitution shall be omitted:

But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half of the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.

These words have been overcome by events and are now superfluous. The Opposition pointed out that similar requirements in other referendum Bills should have been deleted. The Opposition is glad that the Government has accepted its advice - however grudging and tardy acceptance might have been.

There can be little doubt that the Australian Constitution has proved difficult to amend. There have been 26 proposals for amendment since 1901, and only five have been passed. That is exactly how it should be, because sovereignty, or quasi-sovereignty, resides with the qualified electors of this country. It is for them to decide, subject to certain constitutional safeguards, whether they want any change. They have a right, even an obligation, to move with care because they are the people who must bear the burden of irresponsible government - government of the kind they are compelled to endure stoically today.

The real problem we face is associated with the third proposal in clause 2 (c) of the Bill. The relevant part of the Constitution to which clause 2 (c) relates provides that:

And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent.

Clause 2 (c) of the Bill proposes that the words in a majority of the States' be omitted and that the words 'in not less than one-half of the States' be substituted. The Constitution would then read:

And if in not less than one-half of the States a majority of the electors voting approve the proposed law, and if a majority of the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent.

The effect of such a proposed change would be that instead of the constitutional requirement that, before a referendum can be successful a majority of the electors in a majority of the States must vote in favour of the proposal - that is, that there must be a majority of electors in four out of the six States and also a majority of all electors - in its place there would be a requirement that there must be a majority of electors in only 3 States out of six and a majority of all electors before the proposed law can be presented to the Governor-General for assent.

The requirement that there must be a majority of electors in a majority of the States was inserted in the Constitution to preserve the federal system of government - that is, the system of the Commonwealth and the 6 States - and to ensure maturity of thought in the consideration and settlement of the proposals relating to organic changes of the Constitution. These constitutional requirements both safeguard the Constitution itself and were designed to ensure that proper and mature consideration is given to the proposed changes and their effect on the people of this country. We reject this proposal and will move for the deletion of clause 2 (c) from the Bill.

Let me argue somewhat more persuasively and with greater authority about the effect of this proposed change. I am indebted to Quick and Gamut's learned and elegant 'Annotated Constitution of the Australian Commonwealth' for most of the ideas relating to amendments to the Constitution by plebiscite or referendum. As a preface I want to state the Liberal view relating to written federal constitutions and proposals for their alteration.

A constitution may be compared to a living organism. It is not in the nature of a living organism to remain monotonously the same from year to year and from age to age. As with individual units, so with nations, change is one of the laws of life. The constitution of a nation is the outward and visible manifestation of its national life, to the pulsations of which it necessarily responds. The energy within any healthy organic structure must find vent in change. Change assumes various external forms. The power in a progressive community is never quiescent or stationary.

The safeguards that are contained in our Constitution have been provided not in order to prevent or indefinitely resist change in any direction but in order to prevent change being made in haste or by stealth, to encourage public discussion and to delay change until there is strong evidence that it is desirable, irresistible and inevitable.

A constitution is, after all, a charter of government. It is a deed of trust containing covenants between the sovereign community - that is, the people themselves - and its individual units. Those covenants should not be lightly or inconsiderately altered. At the same time a constitution which did not contain provision for its amendment with the development, growth and expansion of the community which it is intended to govern would be a most inadequate and imperfect deed of partnership. It would be doomed to collapse ignominiously and without hope of reconstruction. It would be bound to break beneath the pressure of national forces which it could not control or resist.

I believe that those 2 principles are incontrovertible. At the same time, the tendency to change must be scrutinised to ascertain whether it is proceeding in a safe direction and, if possible, to guide the tendency in that direction. The principal element in the process of a submission of proposals to the electors by way of a referendum is this: The process is a concrete illustration of the political expedient formerly known as the plebiscite and now better known as the referendum. It is an undoubted recognition that the qualified electors are the custodians of the delegated sovereignty of the Commonwealth. The qualified electors represent the people of the Commonwealth as a quasi-sovereign State in quasisovereign organisation. The requirement of the approval of a majority of the electors and a majority of the States is the method imposed by the Constitution for ascertaining the will of the people of the Federal Commonwealth. If a majority of the States had been ignored the federal element in the structure of the Commonwealth would have been impaired and whittled away.

But that does not end the matter. The Constitution, as I have said, is a living organism and we in this House must move with the times. The time may come when the national element - the people - may become so strong as to disregard and overshadow the federal element - the States. An amendment of the Constitution may then be projected and carried abolishing the necessity of the second majority.

When that is done the Commonwealth will probably cease to be a federation and will be converted into a state that is national in form and structure and national in organisation. The Constitution itself enables such a change to be made if the sovereign qualified voters, in their wisdom, consider that such a change is desirable and that the plebiscite is carried out in accordance with the Constitution and procedures of this Parliament. I do not believe that the Australian people want changes of the kind proposed in clause 2 (c) of this Bill.

I return to the long title to the Bill. It states that it is a Bill for an Act to facilitate alterations to the Constitution and to allow electors in Territories, as well as electors in the States, to vote at referendums on proposed laws to alter the Constitution. The words 'to facilitate alterations to the Constitution' are a false description of the relevant part of the Bill and must be considered against the background that the long title will be the actual question submitted to qualified electors at the referendum. It is the long title to the Bill that they will read on their ballot paper. Consequently, if it is to be honest, it should accurately reflect the substance of the Bill. Clause 2 (c) is an attempt to whittle away the federal system and the powers of the States; to take away power from the sovereign people of this country; to do so without adequate consideration of the meaning of the words and the consequences of the proposed change; to do so in such a way as to prevent proper public discussion; to do so by stealth; and to prevent the referendum Bill from truly reflecting the will of the Australian people. Accordingly, we will move to amend the preamble in a way that will be made known when the Bill is being discussed at the Committee stage.







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