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Wednesday, 30 November 1983
Page: 3073

Senator GARETH EVANS (Attorney-General)(10.08) —The Government finds this amendment quite unacceptable partly, but not solely, for the reasons articulated by Senator Robert Ray with his usual formidable weight, intellectually, brought to bear on these matters. The proposed amendment would allow a House of parliament but no other person, organisation or body to make comments on the final determination of electoral boundaries. The augmented Australian Electoral Commission would be required to consider the comments thus made and, if it thought fit, could vary the determination. That is the proposal. The amendment, in the process though, would water down the principle of the independence of the redistribution process by imposing if not political control, certainly substantial political influence and would, in the process, give politicians very much more say in the redistribution process than ordinary members of the public.

Moreover, as Senator Ray said, it is not just politicians as politicians, but politicians of the ruling party who will have the most clout in this respect because, in the House of Representatives, it is only with the support of the ruling party that any motion is able to be framed. In the Senate it will depend upon the party or group of parties that can construct the majority of votes. Only such a party or coalition will be able to pass a resolution. So it gives a formidable extra impetus to those arguments coming in, in a one-sided way, from the chambers in question. The result in turn is that this amendment ultimately boils down simply to something which will allow politicians who put their arguments and lost them at the comment stage of the redistribution process to attempt then to dignify those arguments by hanging on to the coat tails of the prestige of the parliamentary institution and having a second bite at the same cherry.

There are other grounds for objection to this amendment. I express them in essentially technical terms rather than in those terms of high principle enunciated by Senator Ray. I put it this way. The way in which proposed new section 25ZBA is cast really leaves quite open ended the criteria to be applied by the augmented Electoral Commission in making its determination after the second round of comment has been given in the form of this proposed parliamentary resolution. The thing is constructed in such a way that it seems to me certainly very arguable that the criteria which can be put to the Commission as appropriate and the criteria which in turn can be applied by the Commission at this stage are not limited to those which are otherwise crucial in the Commission's deliberations. It does not seem to me to follow inexorably that the basic criteria to be applied pursuant to proposed new section 25Z, with all the elaborate and careful ways in which those criteria have been formulated, will necessarily be the criteria that will be applicable in this additional stage of the process now being proposed. If that is so, the Electoral Commission could start to embark, with the assistance of this pressure from, let us assume, the governing party of the day, on a process quite beyond that which the present framework of the legislation contemplates. That could go even further to the stage of producing a result which is unconstitutional. I remind the Senate that in McKinlay's case Justice Mason observed in the following terms:

It is perhaps conceivable that variations in the numbers of electors, or people in single member electorates, could become so grossly disproportionate as to raise a question whether an election held on boundaries so drawn would produce a House of Representatives composed of members directly chosen by the people of the Commonwealth-

as is required by section 24 of the Constitution. In short, the absence of specified criteria governing this stage of the determination process could produce a situation which would throw completely at odds the basic scheme of the legislation as it now stands and, what is worse, could create a situation in which the whole legislation and the whole process could be deemed by the High Court, applying the Mason principle, to be unconstitutional. For a variety of reasons, some of them technical but the most formidable being those that have been advanced by Senator Ray, I believe and the Government believes this proposal ought to be rejected.