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Thursday, 13 October 1927

Senator OGDEN (Tasmania) . - I move -

That the following new clause be inserted: - 12b. After section 96 of the Principal Act the following section is inserted: - " 96a.No person who is a member of any organization formed for the purpose of organizing, assisting, or returning any political party or members of such party to Parliament shall be capable of being nominated or of sitting as a senator."

The amendment is a very simple one. It is easily understood, and I hope it will have the support of a majority of the Committee. My object is to free the Senate from the evil effects of party influences. The objective of the framers of the Constitution was that the Senate should be a chamber of revision and review, and the defender of State rights. It was to be an entirely independent part of the legislative machine, subject to no party influences - a chamber in which there should be complete freedom of discussion. In fact, it was designed to provide a healthy check upon anything that might be done hastily in another place. Its Constitution was debated at length by the several conventions. One section of opinion desired the Senate to be elected by the State legislatures; another wished it to be elected on a limited franchise; and a third section, which was in the majority, advocated its election under the present system. As at present constituted, the Senate does not meet the requirements of the people of Australia, nor does it fulfil the purpose intended by the framers of the Constitution. The adoption of the present method was due, in my opinion, to an excess of democratic zeal on the part of members of the convention which finalized the details of the Constitution.

Senator THOMAS (NEW SOUTH WALES) - I think much of the trouble is due to equal representation of the States.

Senator OGDEN - Those who favoured the election of the Senate by popular vote urged that equal representation would make it a strong branch of the legislature, and so that senators might be free from divisional influences and interests they provided that each State should be polled as one electorate. However, matters have not worked out according to those high ideals. A good deal of valuable work was done by the Senate in the early days of federation simply because there was no strict regimentation of parties within its four walls.

Senator Foll - But the honorable senator came here on a party ticket.

Senator Kingsmill - Does the honorable senator propose that his amendment shall be retrospective?

Senator OGDEN - The remedy for the implication contained in Senator Foil's interjection is a simple one. If any member of this chamber is tied blindly to any party, he can resign at once. Under existing conditions the

Senate may be an ornament, but certainly it is of no use as a deliberative chamber; on the contrary, it has become merely the echo of another place.

Senator Needham - It was once responsible for a double dissolution.

Senator OGDEN - I may deal with that aspect of the position on another occasion. I wish for the moment to confine my attention to the amendment which I have submitted. The Senate rarely attempts to amend a bill sent here from another place. Ministers bring down a measure, tells us it represents Government policy, and ask the Senate to endorse it. On many occasions honorable senators have voted against their honest convictions merely to save the Government from a difficulty. Under existing conditions the usefulness of the Senate is destroyed. If it continues on these lines it is facing certain suicide.

Senator Andrew - How would the honorable senator provide for the filling of extraordinary vacancies?

Senator OGDEN - That is provided for in the Constitution.

Senator THOMAS (NEW SOUTH WALES) - Does the honorable senator consider that a member of this chamber should nol vote merely to suit the Government?

Senator OGDEN - There should be no party influences in the Senate. All members of it should vote according to their honest convictions.

Senator McLachlan - I rise to a point of order. The amendment submitted by Senator Ogden is not competent for several reasons. The qualifications for a seat in the Senate cannot be affected by anything that may be done in this way. The matter is governed by certain provisions in the Constitution, and they may not be amended by the insertion of a proposed new section in the Electoral Act. I submit that the amendment of which Senator Ogden has given notice is not within the competence of the Senate, as it purports to interfere with the qualifications or disqualifications of senators. That, cannot be done by amending an electoral bill, but only by an amendment of the Constitution. The amendment is a violation of the provisions of the Constitution inasmuch as it attempts to determine who shall be eligible for election as senators. The provisions of the Constitution governing the qualifications for election to Parliament are rigid, and until they are amended in the proper manner must be adhered to. I submit that the amendment is an attempt to override the provisions of the Constitution, and that it is also outside the ambit of the bill we are now discussing.

Senator THOMAS (NEW SOUTH WALES) - Whilst I do not agree with the amendment of which Senator Ogden has given notice, I cannot support the point of order raised by the Honorary Minister (Senator McLach-Ian). He contends that it is not within' the power of the Senate to say who shall and who shall not be qualified to act as senators. Such is not the case, because the Parliament itself determined that a member of a State Parliament could not be nominated for the Federal legislature until, he had resigned his seat. If it is within the power of the Senate to legislate in that way, it is also within our power to amend the bill in the manner Senator Ogden suggests.

Senator Carroll - Was the amendment to which the honorable senator has referred one that could be made constitutionally by the Parliament?

Senator THOMAS (NEW SOUTH WALES) - I do not know

Senator Ogden - I have not had an opportunity to peruse the provisions of the Constitution, but I think the Honorary Minister (Senator McLachlan) will find that in connexion with the election of senators it provides for certain qualifications until " the Parliament otherwise provides." It is within the power of this Parliament to alter the qualifications, as has been done on two or three occasions by an amending electoral bill. For instance, a member of a State Parliament was precluded from nominating for election as a senator until he had resigned his seat in the State Legislature. If the amendment of which I have given notice embodies a breach of the Constitution, the amending legislation to which I hive referred is also unconstitutional. Some time later we went even further when Tasmania attempted to override the Commonwealth law. I now find that section 34 of the Constitution provides that "Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows." Then follow the qualifications. Section 16 of the Constitution provides that the qualifications of a senator shall be the same as those of a member of the House of Representatives. The section further provides that a candidate must be of the full age of 21 years, and must also he an elector, &c. We cannot alter the term that senators are to serve, neither can we alter the representation of the States; hut we can alter the qualifications of a senator.

Senator McLachlan - The Constitution goes a good deal further than Senator Ogden suggests. Section 16 provides thai; the qualifications of a senator sh.'ill he the same as those of a member of the House of Representatives. Section 34 reads-

Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows: -

(i)   He must be of the full age of 21 years, and must be an elector entitled to vote at the election of members of the House of Representatives.

Then follow other qualifications. Section 43 provides that " a member of either House of the Parliament shall be incapable of being chosen, or of sitting as a. member of the other House." Section 44 deals with disqualifications which are set out in rigid terms.

Senator Ogden - That section dials with a specific question.

Senator McLachlan - Senator Ogden is endeavouring to add a further disqualification to those mentioned in section 44. No further disqualifications can he imposed unless by an amendment of the Constitution. The point raised by Senator Thomas is covered by a constitutional provision, the number of which I cannot recall at the moment.

Senator THOMAS (NEW SOUTH WALES) - It is not covered1 by the Constitution.

Senator McLachlan - I maintain that by an amendment of an electoral bill we cannot add to the disqualifications imposed in the Constitution.

Senator Ogden - It has been done before.

Senator McLachlan - The Senate has at times done certain things which have been found to be beyond its powers. I submit that the proposed amendment would be a violation of the provisions of Section 44 of the Constitution.

Mr GREENE (NEW SOUTH WALES) - Although I do not agree with the amendment, I submit that it is competent for Senator Ogden to move it, and for Parliament to agree to it. The Minister has overlooked the fact that section 44 of the Constitution applies to both Houses of Parliament. In respect of certain matters it imposes a common bar, applying to both houses, which the Senate cannot remove, but it is equally clear that the Constitution leaves it in the power of the Parliament to determine what shall disqualify an elector from membership of the Senate, and Parliament may at any time exercise that power.

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