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Thursday, 20 October 1983
Page: 2041

Mr NEWMAN(5.14) —I rise to oppose three of the Constitution Alteration Bills: The first is the Constitution Alteration (Simultaneous Elections) Bill, which I would not wish to see go ahead; the second is the Constitution Alteration (Parliamentary Terms) Bill and the third is the Constitution Alteration (Advisory Jurisdiction of High Court) Bill which deals with the advisory jurisdiction of the High Court of Australia. I will, first of all, speak on the Constitution Alteration (Simultaneous Elections) Bill.

The history of simultaneous elections and their origins is well known to most honourable members of this House. I think it is important just to go back to the salient points of the history and the original coming together of the States. It has an important bearing on how one might then consider this Bill. I think every honourable member would realise that the original colonies came together under considerable mutual suspicion. They were concerned that State governments, in forming a federation, would be retained with proper powers particularly where they affected the administration of their own States. They were particularly concerned in forming the Federation that the small States would have equal rights and equal say in the Federation. The third point that is important in the history of the Federation is that the smaller States were concerned that the two big population centres of Sydney and Melbourne, therefore New South Wales and Victoria, would not dominate the national government. In forming the Federation an agreement was drafted to ensure a limitation on the powers of the Federal Government-the national government-and that power would not be taken away from the States in forming the Federation. Two checks were incorporated in the Federal compact. The first was the compact itself; a written constitution. But the second and the most important check, as far as the nub of this debate goes, was that a powerful Senate should be formed having an independence from the Executive government of the day and made up of an equal number of senators from each State-10 of course.

Careful provision was made to give the States powers in relation to the timing of elections for the Senate and the replacement of vacancies in the Senate caused by death or retirement. It was made possible to have elections for the Senate and the House of Representatives on the same day. That is important when people are talking about the need for simultaneous elections. The Constitution was careful to provide that the Senate could not be dissolved whenever it pleased the Prime Minister of the day to do so. The Senate was to be dissolved when its term expired or, of course, when it reached a stage of confrontation leading to a deadlock between the two Houses. But the important point about the terms of senators and members of the House of Representatives was that for the Senate it was a fixed term and for the House of Representatives it was three years unless the Governor-General decided otherwise.

The case for opposing this Bill-the No case in the referendum that will ensue- is probably based on four points. The first is that the referendum is not necessary to enable simultaneous elections to be held; that can happen now. The second is that the referendum will not necessarily reduce the number and cost of elections. We will argue, in opposing this in the referendum, that it is deceptive to claim that it will reduce the number of elections. In fact, it really will not change the situation as it is now. It could result in more frequent elections. The third is that the referendum will enable any future government to dissolve half the Senate whenever the Senate attempts to protect Australia from measures harmful to the national interest or harmful to a particular State. It undermines the Senate as a barrier to the arbitrary misuse of power and is a check on ill-conceived government actions particularly if they affect a State. It is the Senate's role to review, reflect, amend, defer or reject, not simply to support a government in office. I believe that that function of the Senate will be undermined if senators believe that they are at the whim of a Prime Minister who can call them out to an election whenever he sees fit. The fourth point is that the referendum will result in a greatly increased concentration of power in Canberra and in the hands of all future Prime Ministers and in less protection for Australian citizens against the abuse of that power and less protection for the smaller States. It will, I believe, weaken the Federal structure because it will destroy the element of continuity and longer term perspective that is desirable in a House of review and that helps to ensure radical change is introduced only if it is genuine and firmly supported by the electorate. Again, it will destroy part of the checks and balances system, including the fixed term as a balance to the unfixed term of the House of Representatives.

That is why I wanted to highlight particularly those points that were considered by the founding fathers of the nation when the Federation first came together. It was a check on the power of the Federal Government through a Senate that would have continuity and have a term quite independent of the House of Representatives. If one makes it a case of simultaneous elections-half the Senate with the House of Representatives on every occasion-one destroys that check and balance which the founding fathers wrote into the Constitution.

I will not support this Bill. I feel that if I did I would simply be betraying the trust which has been given to me as a member of a small State-the small State of Tasmania. I believe that the measure is an attack upon the independence and influence of the Senate. It is thereby an attack upon the influence and powers of the States.

I move to the next Bill with which I cannot agree, the Constitution Alteration (Parliamentary Terms) Bill. We are looking at a Bill which makes provision for four-year terms for members of this House and eight-year terms for members of the Senate.

Mr Snow —Like they have in Tasmania.

Mr NEWMAN —I recognise the background to the interjection that was just made. I recognise the arguments that have been put in the House as to the advantages of a four-year term. It would give the Government time to implement policies without having to worry about an election looming in the third year of its term. I recognise the case for a four-year term for this House but I could not tolerate a senator having an eight-year term. That would make him almost completely independent of the electorate. It would give him such a continuity of service that we might as well put him on the Public Service payroll and be done with it. That continuity would allow him not to be answerable to the electorate. Because I cannot see my way through the dilemma of having a four-year term here and eight years in the other place, I simply cannot support the Bill. For the basic reason that it would give a senator an eight-year term I will be voting against this measure.

I turn to the third Bill that I will not be able to support, the Constitution Alteration (Advisory Jurisdiction of High Courts) Bill. I have tried to understand all the ramifications of this Bill. I have looked at the arguments that were put at the Constitutional Convention in Adelaide and I have read the Hansard record of the Senate debate. I recognise that the Bill as it has come to this House is a much better Bill than that which was debated in the Senate. The problem that was raised by opposing senators, that if Bills were to go to the High Court of Australia before they had passed through this House that would be an unwarranted intrusion by the High Court into the workings of this Parliament, has been removed. I think it was fairly said that it would pre-empt the deliberations of parliamentarians on those Bills about which advice was sought. That may well be good and it is to be applauded that the Bill has been so amended, but unfortunately the provision in clause 2 (1) (d) still seems to me to be an impediment. Sub-section 1 (d) states:

any question of law arising under or with respect to any treaty, including any question of law relating to the implementation of any treaty, being a question that, by reason of circumstances existing at the time of the reference, the Governor-General in Council is of opinion has arisen or is reasonably likely to arise.

The problem seems to be that we are still facing the same argument that was put by various people at the Constitutional Convention and in the Senate in regard to Bills that have not gone through both Houses. It seems quite clear to me that we still have the objection that this Bill would provide an ability for the Government of the day to involve the High Court in the proceedings of both Houses of Parliament when we are debating measures. Surely the Government would be able to use, for example, the implementation of any treaty to seek an opinion from the High Court, perhaps in the very broadest terms, and use that opinion to influence the members of, say, this House. Let us make no mistake about the influence of a High Court opinion. It would be very weighty. The High Court giving an opinion on a matter would count very heavily with honourable members of this House.

I give an example of how that might occur. In respect of the vexed question of the dam in South West Tasmania, the Government could simply have taken an opinion on the external affairs treaty. Having got the treaty, as I have said, perhaps in the broadest terms without going into any of the background or practicalities of measures contained in a Bill, it would then have had an opinion with which to back a Bill which was introduced to stop the dam being built. It could have brandished that opinion and used it very strongly in the debate both here and outside the House to convince us that the Bill should go through. In other words, it would have involved the High Court and the judiciary in the deliberations of the Parliament. I believe that that would usurp the role of the Parliament. That is one reason why I cannot support this Bill.

There is another question, the question of State rights. I believe that a government, by using this reference to external affairs, would be able to explore to the nth degree its ability to use any treaty to enlarge and enhance the powers that it already has as a federal government. I think that argument was put very well by Senator Crichton-Browne when he was talking about this point. He is reported in the Senate Hansard of 13 October as having said:

This Government will seek to explore further and further the limits of its jurisdiction under the constitution with a view to gathering unto the Central Government more and more power at the expense of the individual States.

. . . .

. . . The brief history of this Government-

he was referring to the Hawke Labor Government-

has demonstrated an unbridled ambition to intrude by whatever means available into the traditional responsibilities of the States and this constitutional amendment can only greatly speed up and expedite that process.

It ought to be noted that in the case of treaties it need not even be a matter that is before the Parliament. This is really a question of the Cabinet going straight to the High Court without any contemplation or consideration by either House of Parliament.

I agree with those sentiments. I do not see the Minister for Aboriginal Affairs (Mr Holding), who is at the table, shaking his head in the negative. I think he would find that to be a very attractive proposition. As the representative of a small State, I simply cannot tolerate that proposition. They are the two reasons why I believe that the original objections to this Bill have not been removed. By using a reference to a treaty the Government can interfere in the workings of this House. It can involve the High Court in our deliberations. Secondly, I believe that this would simply be another instrument that the Government could use to centralise its power in Canberra at the expense of the States.

The only other point that I would make about the Constitution Alteration ( Advisory Jurisdiction of High Court) Bill relates to the attitude of the High Court. As I understand it the Chief Justice of the High Court, in an address entitled 'State of the Australian Judicature' in July 1983-I think it was delivered at a Brisbane law conference-made it clear that this proposal was neither necessary nor desirable in Australia. He made the following important point:

Under the proposal made by the Constitutional Convention the court would be required to consider questions in the abstract, and possibly before the practical implications of the legislation had come to be fully understood.

I have demonstrated that I believe that that comment still stands because of the provision in the Bill dealing with the implementation of any treaty and the ability of the Government to refer that to the High Court for an opinion.

I will not take up any more of the time of the House. In summary, I oppose the Constitution Alteration (Simultaneous Elections) Bill and the Constitution Alteration (Advisory Jurisdiction of High Court) Bill because I believe that their enactment would be at the expense of the arrangements which presently exist between the States and the Commonwealth Government. I believe that they could erode the independence and proper functioning of State governments. As a member for Tasmania I resist that now. I hope that I will be able to join in the referendum debate to ensure that at least the people of Tasmania vote against this Bill if it happens to get through this House this afternoon. As to enlarging the terms of parliamentarians, whilst I can see merit in members of the House of Representatives being given a four-year term, I simply could not tolerate an unbridled term of eight years for a senator.