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Wednesday, 21 November 1973
Page: 3629


Mr WENTWORTH (Mackellar) - I move:

In paragraph (a), omit all words after "by", substitute the words "inserting after the words 'in each State' (twice occurring) the words 'and Territory' ".

My amendment has been circulated or is in the course of being circulated. It may seem to be only a drafting amendment but it has a little bit of constitutional force behind it and I think the Government might seriously consider it. My amendment seeks to alter section 128 of the Constitution. Clause 2 of the Government's Bill reads:

(a)   By omitting the words "in each State" (twice occurring);

What I suggest is that instead of deleting the words "in each State" (twice occurring) there be substituted the words "inserting after the words 'in each State' (twice occurring)" the words 'and Territory'. Section 128 of the Constitution would then read -

The proposed law . . . shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.

Then at the foot of the next paragraph, the section would read: . . either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote

The proposed amendment does not alter the impact of what the Government says it wants to do; it simply puts it in better drafting form, and I think it improves the Bill. I suggest to the Government that it might accept this amendment which, I repeat, would put in better drafting form what the Government says it wants to do.

The Government's Bill seeks to omit the words, 'in each State', in the Constitution. If we accept that amendment the section would read:

The proposed law .... shall be submitted to the electors qualified to vote ....

It is part of the federal compact that the States be preserved. If one looks at the foot of section 128 of the Constitution one sees a requirement that an amendment of the Constitution must 'be approved by the majority of the electors in each State. That being so, the Constitution should provide also that a referendum is put to the electors in each State. I do not dispute - indeed I support it - the contention that we should also allow the electors in the Territories to vote and that their vote should be counted in determining the overall majority. I and the Government are at one on this. We are both trying to do the same thing. But I would suggest to the Government that it would be better drafting to keep the words as they appear in the section. One is always a little worried about omitting from the Constitution words which protect the States.

To retain the words 'in each State' and simply add the words 'and Territory' would mean that the Bill would be submitted to the electors in each State and Territory separately. This is necessary, of course, if one is to satisfy the requirements of a majority in the majority of the States. I am not suggesting that we should do anything to impair the position of the States - very much the contrary. I think that when we are drafting an amendment to the Constitution, we should endeavour to preserve the proper functions and rights of the States. But at the same time I agree with the Government that the votes of those in the Territories should be counted in the general total which is required of all electors to carry a referendum. I agree with the Government that the electors in the Territories should have that right, but I do not think that since the Constitution is a federal compact we should, in any way, impair the rights of the electors in the States.

I know that with this Government - and I must say, with respect, it was with past governments also - it is a matter of pride not to accept an amendment even though it may result in an improvement to the Bill. Maybe that same kind of foolish wide actuates even the Prime Minister, although we know that the Prime Minister, of all the people, is a modest man and is quite devoid of any feelings of pride. I suggest to the Prime Minister that in this matter of drafting, he should swallow not his pride but the pride of his Party, and accept my amendment, which is reasonable and one that improves the drafting and makes clear the residual rights of the States in the federal compact. I ask the Government not to take out, even from this section, the phrase 'in each State' but to prefer the machinery whereby the referendum is submitted to the electors in each State and the Territories.

Let me again make clear my amendment which has now been circulated. I suggest that we should not take out the words 'in each State' twice occurring; but instead that we should leave in those words and add after them the words 'and Territory'. This would make clearer to the people in the Territories what we are doing for them. Moreover, it would preserve, as it should preserve, the position of the States explicitly in this section of the Commonwealth Constitution which is part of the federal compact and is drafted around the residual rights of the States in that compact.

I ask the Government to reconsider this matter. My amendment would make no substantial difference to what the Government says it wants to do, but I think it represents an improvement in drafting. It would better preserve the federal nature of the Constitution, and it is one which I hope the Government will be inclined to accept. If the Government has some kind of hidden meaning in what it is doing, if it wants really to make a first move towards the assassination of the States by leaving out these words, if there is bad faith in the Bill, the Government will not accept my amendment. But I would prefer to believe that in this instance, and only in this instance, the Government means what it says and will, therefore, be inclined to accept my amendment which clarifies the position and does not derogate from what the Government says it wants to do. If on the other hand this whole proposal is meant as a first step to the eventual assassination of the States, of course, the Government will reject my amendment. I am not saying that the Government wants to do this at present. Let us consider this amendment on its merits. I believe that there are very great merits in making an amendment along the lines I have suggested.







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