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Tuesday, 6 December 1983
Page: 3325


Senator GARETH EVANS (Attorney-General)(8.55) —There is nothing like the President's cocktail party to lubricate the indignation of this chamber, and we have had an ample demonstration of that tonight. It seems to be forgotten that the Referendum (Constitution Alteration) Amendment Bill 1983 is primarily designed to give votes in the forthcoming referendums to Territory voters in the Australian Capital Territory and the Northern Territory. I think it was only Senator Kilgariff, of all those who spoke, who made any particular mention of that, and that provision of course, that central provision of this legislation, is not controversial. It ought to be appreciated that that is the prime objective of this Bill, and if this Bill is lost for any reason, including by virtue of being talked out, those votes would be lost and those Territorians will lose their franchise in this forthcoming referendum. That would be a most unhappy state of affairs.

The other issues involved in this legislation are essentially those thrown up by the Government's amendments, which were just reissued in a further modified form a few minutes ago. Four basic issues emerge from those Government amendments, and indeed the amendments that have been circulated by the Australian Democrats and the Opposition. The first group of concerns addressed in these amendments is to accommodate the concerns expressed by the Senate Standing Committee for the Scrutiny of Bills. We will get to that in the Committee stage. As I understand the particular linguistic changes that are proposed to clarify the effect of the legislation and to limit its effect in accordance with the recommendations of the Scrutiny of Bills Committee, they are in fact uncontroversial. But I mention those because they are a partial explanation for the length of the list of amendments that have been circulated by both the Government and the Australian Democrats.

The second matter addressed by the further amendments that have been circulated is to accommodate a series of legal and technical difficulties flowing from the passage, now completed, of the new Commonwealth electoral legislation. The major part of the amendments, the last of the Government's further amendments, is of course addressed to that particular technical, and again as I understand it, uncontroversial issue.

The two other matters addressed in the various amendments around the chamber are, however, very controversial. One such matter is the question of the form of the ballot paper and the other is the question of the costs proposed to be incurred in the Government's own Yes case campaign. Let me say something then about each of those two issues on which we have heard so much this evening. As to the form of the ballot paper, the object of the exercise here has simply been throughout to try to improve the intelligibility of the questions addressed to the individual voter as he or she will confront those questions in the ballot booth, or compartment I suppose we should say with reference to the debate the other night. Until the 1967 referendum, as I understand it, for most of this century it was only the short title of legislation to amend the Constitution that was in fact put to the voters. That short title may or may not have been misleading in the past, but at least it was succinct. Since 1967, and only since 1967 for those traditionalists who are moved by what they recall as the previous practice, it has been the practice to include the long title of the Bill.

That is all very well if the long title is expressed in layman's language or intelligible language, but of course very often it is not, and I do not think sufficient concern was given to the drafting of the long titles of this legislation when these particular referendum alteration Bills were initiated and were going through this Parliament. As a result, when one came to look at them it became apparent that the titles in question were not such, when combined with all the other mumbo-jumbo that was involved in the existing prescribed form, as to be likely to be readily intelligible to the average voter in this country.

So there was a desire to try to improve the communication flow in this respect and discussions were held with the shadow Attorney-General, Senator Durack, before any amendment or regulation was passed-I say that with respect to Senator Lewis's sally-and discussions were also held of course with the Australian Democrats who are not to be taken as supporting all five of the referendum proposals. They may have voted that way in order to get them before the people, but they have made it very clear to me, and indeed they made it clear publicly, that they are not particularly keen on the simultaneous elections proposal. They may not be as keen on a number of other matters either. So discussions were held with the Democrats and an attempt was made to come to a form of words to be put to the people on the ballot form to accompany the short title of the Bill. The sub-heading in each case, if one goes down the list, is the short title and there is a form of words that has been devised to go with it, which does appear and has certainly been intended to be quite neutral as between the competing views, as to the merits of the case.

Let me make some comparisons. The way in which the simultaneous elections proposition is expressed in the long title of the Bill is as follows:

An Act to alter the Constitution so as to ensure that Senate elections and House of Representatives elections are held at the same time.

The language is inherited, of course, from Malcolm Fraser. I was interested to note the sally of one speaker tonight that no previous government would have sullied itself by using this kind of language. It was in fact the Fraser Government that used the language of this long title. The proposal which is in the regulation that has already been promulgated and which it is now proposed be incorporated in the Bill itself is expressed in these terms under the short title 'SIMULTANEOUS ELECTIONS':

To ensure that elections for the Senate and House of Representatives are always held on the same day, and to adjust the terms of Senators accordingly.

So what we have done is build in a reference to the adjustment of the terms of senators, which is the nub of the objection of many people to the description of simultaneous elections-that it does not refer to senators' terms. We have built that into the actual description that is going to be incorporated in the ballot paper itself. So, if one likes, it is falling over backwards to be fair to the No proponents rather than just stating shortly the point about elections being held on the same day, which is, of course, the essence of the Yes case. What could be--


Senator Lewis —Go on with the next one.


Senator GARETH EVANS —As it is expressed in the long title of the Bill, there is a reference to the terms of members of the House of Representatives and senators . In the proposed ballot paper under 'PARLIAMENTARY TERMS'-that is the short title of the Bill-it is expressed:

To extend the maximum life of the Parliament from 3 to 4 years.

This proposal is not just being put forward one-sidedly, to express the maximum life of terms of the House of Representatives members, which would have been unfair and unbalanced. It is a reference to the life of Parliament. Nobody is going to be in any doubt that this has implications for the terms of senators by the time the No case proponents have had their voice and editorialists have spoken. But that is addressing the issue in a way that is perfectly fair.


Senator Walters —You know it is eight years for senators.


Senator GARETH EVANS —What seems to be overlooked by this kind of interjection from Senator Walters is that if we go back to the long title of this Bill in relation to parliamentary terms there will be no reference to eight years either . There is just an ambiguous and generalised reference to extending the terms of members of both Houses. So eight years does not get in either. We can argue the detail of this till the cows come home. I simply make the point that there has been no attempt in any way to twist. If there had been, there would not have been any co-operation in this endeavour from the Australian Democrats, who have made it absolutely clear that they want even-handed but intelligible presentation of the basic issues in the question that will be addressed to the voters. It is on that basis that this language was redrafted and on that basis that discussions were held.

Some technical issues have been raised in relation to this, one of them by Senator Lewis, who talked in terms of the procedures adopted with respect to the tabling of regulations. What is the situation here? I acknowledge that I was very surprised last week to find that the regulations had not been tabled. Certainly that procedural lapse occurred without any knowledge on my part. It is the case, I now discover, and I make clear for the record, that the responsibility for tabling all regulations, including those initiated by other departments and other Ministers, rests with my Department-the publications branch of the Legislative Drafting Division of the Attorney-General's Department . When the regulations in this instance were received from the printer after, I am afraid, a longer than usual delay, on 28 November-they were not received back from the printer until then-they just sat in the pile of regulations which are delivered weekly to this parliament. Because they missed last week's run, they did not in fact get tabled until, as I understand it, today. It is a simple procedural process that occurred and was not the product of any knowledge on my part or certainly any deliberate intent. There was never any question of denying an opportunity for debate on that particular aspect because I, of course, appreciated that there would be some willingness to mix it in this respect.

As to the question of whether or not this should be done by regulation rather than by legislation, it is, and always has been, my belief, as I communicated to some honourable senators in this place, that the existing section 14A (4) of the parent Legislation-the Referendum (Constitutional Alteration) Act 1906-does in fact give the necessary authority for regulations of this kind were it says:

For the purposes of sub-section (3) the form of ballot-paper may be modified as prescribed, or a special form of ballot-paper may be prescribed, but so that each question shall be capable of being voted on separately, and so that no change be prescribed in the method of marking votes on the ballot-papers.

I had always believed that that was a sufficient legislative authority for a prescription. The view has been taken subsequently in my Department, on further and perhaps better thoughts, that there needs to be some further change to the parent legislation in order to make absolutely sure that the change in the ballot paper for purposes not generally but of a particular referendum is covered. It was for that reason that these further amendments were put before the Senate.

Having now listened to the debate that has taken place tonight and thought further about the issues involved, and given the essentially transitional nature of this whole piece of legislation before us, which is not going to be permanent but which will be consolidated and re-enacted next year, it seemed to me to be appropriate to meet the principal objections that were being put, I think in good faith, by the Opposition, certainly in good faith by Senator Harradine and equally meet what I know to be the preferred position of the Democrats and actually incorporate in the text of the legislation itself the proposed language of the ballot papers rather than go down the route of regulations. I am happy about that. I was always happy about that. I just thought we could get home more quickly and conveniently the other way and still be subject, of course, to a disallowance procedure which Parliament still would have had an opportunity to pursue.

Might I indicate for the benefit of Senator Walters on this issue that the reference to 'indicate a Yes or No vote' was purely a matter of drafting style which has since been the subject of further and better thoughts by the draftsmen because they certainly did not want to do other than indicate 'write Yes or No'. In the revised form of the ballot paper that is put before honourable senators now as an amendment to go into the Bill itself that has been attended to. There is no shonky, devious, dastardly or other endeavour to open up the scrutineering process to argument about ticks or crosses or any other sordid conspiracy that Senator Walters was contemplating.

As for the final matter in issue in this debate, the question of the financial support for the specific Yes campaign that the Government is proposing to embark upon, let me make it clear that the existing legislation, which has been with us for quite a long time, as lots of honourable senators have indicated, does ensure that equal and balanced Yes and No cases will be put under the auspices of the Australian Electoral Office. That is true and that situation will, of course, continue to the extent that something like $5m of the $21m that this referendum will cost will in fact be devoted to the preparation, production and distribution of these equally balanced Yes and No cases. In other words, the material will be rather better presented-God knows how it is going to be written , listening to the quality of contributions tonight-to the voters than it has been in the past, to the tune of $2.5m of taxpayers' money. That is what supporters of the No case are getting to start with. That legislation, which will continue and which ensures even-handedness in the distribution of the pamphlet that will go into every ballot box in this country, does not say, of course, and never has said, that no other money can be expended on the referendum campaign-that is, if the amendment is adopted. It is palpable tendentious nonsense to say that there are some either high order--


Senator Walters —Will you resign if you lose?


Senator GARETH EVANS —Calm it down; then you will not have to put your hand behind your ear. It is palpable nonsense to suggest that there is some high order constitutional principle involved here or some legislative or legal constraint, let alone a moral constraint, on this occurring. Because I was challenged by Senator Townley and a few other people, let me indicate why it is that the Government believes that it is justifiable, defensible and, indeed, wholly desirable that some small additional amount be spent on the Yes case in this instance. I think there are four quick points that I would wish to make. The first is this: The No case, whatever the quality of its proponents within the Parliament, always goes into a referendum campaign with an intrinsic advantage. There is an inherent complexity about referendum proposals. There is an inherent apathy in the Australian community about constitutional isues, as we all know. There is an inherent disposition on the part of those advancing the No case to rely on simple, rhetorical, emotional sorts of arguments, often bearing no relationship whatsoever to the truth of the matter. There is an excellent chance of that kind of emotional rather than intellectual appeal carrying the day because of the well-known psychological disposition of individuals, when confronted with something about which they do not feel very strongly and which they do not really understand, to vote No. That psychology is well understood by miscellaneous troglodytes, neanderthals and by more sophisticated campaigners who in the past have propounded the No case.

The No case starts, without anybody spending any other money, with an inherent advantage over those who want to create an environment in which people will vote Yes for some reasoned change. So just to get the Yes case into the field, against that background demands, I would say and argue very strongly, the expenditure of some additional resources just to make it impinge upon the voters ' consciences to give it a chance of competing with the raw, crude, vulgar emotion of the kind which gets generated in referendum campaigns. There is an added problem in this forthcoming referendum campaign, because we know that taxpayers' money will be spent on the No case by Mr Bjelke-Petersen in Queensland and by Mr Robin Gray in Tasmania-


Senator Archer —How do you know?


Senator GARETH EVANS —We know it because Mr Bjelke-Petersen has been saying for weeks that he will wage an election-style campaign against these referendum proposals, notwithstanding that he and his Government voted for many of them in successive meetings of the Australian Constitutional Convention. He sees the opportunity to score a quick political point and he will be in there with his boots flying. Honourable senators opposite know that and will be taking advantage of it. Plenty of money will be expended from the Queensland Treasury on this campaign, mark my words. It has been done in the past and it will be done again. From Tasmania's point of view, we have Mr Gray's very own words to prove this.


Senator Robert Ray —You could not believe that.


Senator GARETH EVANS —Well, maybe one cannot, but he said it anyway and it deserves to be put to him. On World Today on 5 December Phillip Russell asked Mr Gray:

Will you be spending State money on this?

He was referring to the No case. Mr Gray answered:

We certainly will because this is a referendum which will have disastrous effects for Tasmania.

Let us not get into a debate about the reasons why; let us note the fact. The Premier was asked whether he would be spending money on advancing the No case. He said words to this effect: 'Yes I will'. He was asked whether he whould be spending State money; 'Yes, I will', said Mr Gray. I can assure honourable senators opposite that no similar expenditure is likely to be forthcoming from other State governments in this case, because they see no particular opportunity to score any political points from this campaign and they quite properly regard it as appropriate for the Commonwealth to make the running. So my second point is that we go into this campaign with an overt commitment by the Premier of Tasmania and the Premier of Queensland to spend public money in support of the No case.

The third point I want to make is that these proposals are not some kind of partisan rant being advanced in a unilateral way by the Federal Labor Party. These proposals are coming forward with substantial cross-party support, with the overt support of the Liberal Party and the overt support of the National Party of Australia, albeit with the potential for lots of defectors from their ranks in the process. But it has cross-party support. It has the support of the Australian Democrats, at least to the extent of their wanting the proposals to be put before the people and, of course, it has 10 years of accumulated support, either unanimous or substantial majority support, from sessions of the Australian Constitutional Convention. It may be that it would be less appropriate for the Commonwealth Government of the day to be spending money on advancing the cause of some proposal which manifestly had no cross-party support at all. That is not the case on this occasion, and I believe it does not constitute any kind of precedent as such for the future.

Finally, I make the point that the amount involved, which is a little over $1m, is small both by comparison with the $21m absolute cost of the referendum to be conducted by the Electoral Office and by comparison with the $5m-$2 1/2m of which will be spent on the Yes case and the other $2 1/2m on the No case-which will in fact be spent by the Commonwealth on the Electoral Office pamphlet. I believe, Mr President, that these are compelling reasons why this proposal by the Commonwealth Government ought not to be subject to the legislative attack that is involved in both the Democrat and Opposition amendments. I have given the reasons why it is both a principled endeavour and a practically sensible endeavour on the Commonwealth's part. To anticipate the Committee stage of the debate, which I am not sure we will reach tonight because of other arrangements, I make this point in regard to the Committee stage of the debate: It is proposed that it centre around a re-issued list of Commonwealth amendments. The first group of amendments are essentially those which were on the original list.


Senator Chipp —Settle down. We are all tired, not just you. We are all tired and overworked, not just you. Settle down.


Senator GARETH EVANS —Settle down?


Senator Chipp —Yes.


Senator GARETH EVANS —Me?


Senator Chipp —Yes, you.


The PRESIDENT —Order! The Attorney-General will address his remarks through the Chair. I ask him to ignore the interjections.


Senator GARETH EVANS —All I am doing is explaining what the hell is on the list of amendments.


Senator Chipp —You are also winning an academy award.


Senator GARETH EVANS —Well, if I can do that having had one glass of gin and tonic I am a damned sight better than the rest of the people in this place.


The PRESIDENT —Order! The Attorney-General will speak through the Chair.


Senator GARETH EVANS —All I wanted to say, Mr President, is that the group of amendments, despite their apparent complexity and the form in which they now come before us again, are essentially the same group of amendments as before, the only modifications being that provisions are deleted with respect to changing the regulations prescribing procedure-schedules C and D and so on-and the terms of the material are now contained in the proposed Act itself. That is the only substantial difference. The other changes are all minor technical ones in order to accommodate that state of affairs. I hope that when we get to the Committee stage of the debate, accordingly, it will be possible rather swiftly, because we are running out of time, to deal with this matter and to support it accordingly.

Question resolved in the affirmative.

Bill read a second time.

Motion (by Senator Gareth Evans) agreed to:

That consideration of the Bill in Committee of the Whole be made an order of the day for the next day of sitting.