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Wednesday, 25 September 1974
Page: 1391

Senator GREENWOOD (Victoria) - The Opposition appreciates that there is an urgency attaching to this Bill and desires to co-operate with the Government in ensuring that it receives a speedy passage. In principle, no objection is taken to the Bill, although in the Committee stage the Opposition will offer an amendment which it trusts the Government will appreciate is offered as a matter of caution and protection in a situation about which we have not any clear information. The basic position which the Bill recognises is that members of the Commonwealth Public Service and members of the Northern Territory Public Service are not permitted to stand as candidates for the Legislative Assembly elections shortly to be held in the Northern Territory. Of course, that prohibition has always applied to membership of the Legislative Council of the Northern Territory which is about to be replaced by the new Legislative Assembly. The origin of the restriction is to be found in the Northern Territory Administration Act under which the Commonwealth Government exercises a plenary power over the Northern Territory as a Territory of the Commonwealth.

It does seem unreasonable that members of the Northern Territory Public Service and the Commonwealth Public Service should not be able to resign from their positions to contest an election and, if they are unsuccessful, to rejoin the Public Service and continue with the same rights as they had before. The ability on the part of Commonwealth public servants to do that with regard to elections for the Houses of the Commonwealth Parliament has always been recognised. At least, it has been recognised for the past 1 5 or so years. I understand that the position with regard to the members of the Northern Territory Public Service has been acknowledged by an amendment to the Northern Territory Ordinance establishing the Northern Territory Public Service some 10 years ago so that members of that service are entitled to resign, contest an election and, if they are unsuccessful, to come back into the Northern Territory Public Service with no loss of continuity or of rights.

This Bill tidies up the position. I think the expression 'tidying up' is a fair way to describe what will happen with regard to members of the Commonwealth Public Service who are interested in standing for election as candidates in the forthcoming Legislative Assembly elections in the Northern Territory. The Opposition recognises the validity of the point which is made and offers no objection to the principle contained in the Bill. But there is in the Bill a provision which raises some doubts and in respect of which the Opposition believes the Government would be wise to leave the contingency for which it is endeavouring to make some provision to await the circumstances when that contingency actually arises.

I will by way, I hope, of clear enunciation state the position with regard to the Commonwealth and the Commonwealth Territories. Members of the Commonwealth Public Service have to resign in order to stand for election to the Houses of this Commonwealth Parliament. They can, if they are unsuccessful at the election, rejoin the Public Service after the election. That situation is necessitated, of course, by the provisions of the Commonwealth Constitution. In regard to the Australian Capital Territory, according to the information which has come to me, there has never been any prohibition upon members of the Commonwealth Public Service standing as candidates for election as members of the Australian Capital Territory Advisory Council, and that there will not be any prohibition upon them standing as candidates for election as members of the proposed Legislative Assembly for the Australian Capital Territory. Indeed, I understand that some public servants are candidates in the election for the Legislative Assembly.

Even if a payment is made to them on a part time basis, as I understand is contemplated, or subsequently on a full time basis, there is still no prohibition upon them requiring them to resign from the Public Service or preventing them from holding a Public Service position if they should become members of the Legislative Assembly. If there were to be some change of that character, some bar placed upon Commonwealth public servants to prevent them from becoming members of the Legislative Assembly of the Australian Capital Territory, I would think and would hope that this sort of change would be brought in by legislation, or if by ordinance, certainly only with the greatest degree of publicity. It would be a significant change and it would have important consequences in the Australian Capital Territory.

In the Northern Territory the position is as I have indicated, and this Bill is seeking to rectify the situation. As regards the other Territories, I understand that the only Territory in which there is a relevant position is Norfolk Island and in that Territory there is no prohibition upon members of the Commonwealth Public Service from becoming members of the Advisory Council of Norfolk Island. Therefore, it is difficult to see where the type of provision which is being enacted by this Bill for the Northern Territory could have any application in the future unless the law in regard to either the Australian Capital Territory or Norfolk Island is changed. We believe that if the law with regard to the entitlement of members of the Commonwealth Public Service to be eligible to become members of the Legislative Assembly of the Australian Capital Territory or of the Advisory Council of Norfolk Island were changed, then when the change occurs the particular measures comprehended by this Bill could also be brought into the legislative change.

We regard the provision in this Bill which seeks to give a power, by regulation, to make the provisions of this Bill applicable to some undefined Territory in the future as being unwise, and we believe that it ought not to be done in this way. Senator Murphy, when he introduced this Bill, referred to this point in very short terms. He said:

Provision is also made to enable the sections to be applied by regulation to elections for legislative or advisory bodies of other Territories. This will be used as necessary in the future.

I have sought information from those to whom the Attorney-General's office referred me, and it is very difficult to find any reason for these particular clauses, except that they may have to be used in the future. It is difficult to see when that situation will arise. To put it in another way, if the principle involved is a good principle- the Opposition believes that it is- it is a principle which ought to be changed only with the closest public scrutiny.

If the procedure envisaged in this Bill is to be adopted by regulation, then of course there may well be persons who would rely upon the rights which the regulation gives to them. Those persons would resign from the Public Service anticipating, under the provisions of the regulation, that they would have certain rights if they were unsuccessful. It may be that as a matter of policy this Senate or the House of Representatives might wish to disallow that regulation. But either House would be inhibited from doing so because it would be affecting adversely the rights which had accrued to individuals who had acted upon the faith of the regulation. That would be an inhibition upon the powers of either House of the Parliament, which it is undesirable to express. Likewise, an individual who was apprehensive that either House of the Parliament might disallow a regulation which was passed in order to give him a right might well consider that he should not risk his position by taking advantage of a regulation which could be disallowed.

Those considerations, I think, point to the undesirability of relying upon a provision which is inserted by way of regulation. I recognise that if there had been more time for consideration of the provisions of this Bill the matters which I have raised could have been urged upon the Government, and what I am now putting forward with some explanation could have been worked out in collaboration because it is not the sort of point which appears to me to be a barricades issue on which the Senate firmly and assertively says that a certain position must pertain.

As I understand it, nominations for the forthcoming election for the Northern Territory Legislative Assembly close on Friday, and it is desired that the Bill should pass through this chamber today, go through the House of Representatives and, if possible, receive royal assent on Thursday. Having regard to that knowledge, I can only invite the AttorneyGeneral to consider the matters which I have raised. I trust that at the Committee stage the amendments might be accepted.

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