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Wednesday, 21 November 1973
Page: 3633

Mr McMAHON (Lowe) - The Opposition is also prepared to accept the proposal contained in clause 2(b) of this Bill which makes provision for omitting the words:

But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.

It will be remembered by honourable members that on at least 2 occasions in discussions of other Bills relating to referenda we have drawn attention to the fact that there are sentences in various sections of the Australian Constitution which provide that, until the Parliament or some other institution otherwise provides, there is a constitution requirement as to the law that shall prevail. I am glad that somewhat tardily the Government has accepted the recommendation of the Opposition. I believe it is a sensible proposal to delete this clause and consequently we have no objection to the deletion.

I move now to what is now the critical sub-clause so far as the Opposition is concerned. That is clause 2 sub-clause (c) of the Bill which proposes to omit the words 'in a majority of the States' and to substitute the words 'in not less than one-half of the States'. This is an amendment that we reject. The Opposition will vote against it and will take it to a division. I admit that there is little doubt that the Australian Constitution has been found difficult to amend in practice and that since 1901 there have been something of the order of 26 proposals to amend the Constitution but only five of them have been approved by the people of this country. I have also pointed out that that is as it should be because the people of this country in whom sovereign power resides - at least the qualified electors of this country in whom sovereignty resides - should be the people who determine what changes should be made to the Australian Constitution, not only as a matter of logic but also to comply with the provisions of section 128 of the Constitution.

What ' would happen if the proposed amendment were made? It would mean in effect that there would be an amendment to that section of the Constitution which requires that before a referendum can be successful it must be approved by a majority of all the electors and by a majority of electors in 4 States out of 6 States. To put it in inure simple language, there would be a different requirement in place of the provision *b.% presently exists in the Constitution. Tl- ;ie. result of that would be that instead of a majority of electors in 4 of the 6 States, and also a majority of all electors being required to vote for the proposal, the Government would need only a majority of electors in 3 of the 6 States and a majority of all electors before action could be taken by the GovernorGeneral.

We have pointed out also that the reason this section was initially incorporated in the Constitution was, firstly, to sustain the Federal Constitution, and secondly, to ensure mature consideration of the proposal and settlement relating to organic changes of the Constitution. In other words, to put it shortly, the section was designed to sustain the Constitution and to give the people adequate time in which their mature consideration could be exercised so that they would be the ones who would have sovereignty and the right to determine the changes that were to be made. I have pointed out also that change is the law of life and of society. It is a law of persistent change in the environment and persistent social change as well. The Opposition does not object, and would never object, to cases where it is essential or desirable that changes should be made to the Constitution in order to meet changing circumstances and where the people themselves can be convinced or come to the conclusion beyond doubt that change is desirable.

The Opposition believes also that when there is a compact, such as in the Australian Constitution, between the States, the Commonwealth and the people, the people should be given ample opportunity to make up their minds, and they should be thoroughly briefed not only as to the meaning of the changes, but also as to the consequences that might flow from those changes. Because we do not believe these conditions have been met we have come strongly to the conclusion that we will move for the deletion of clause 2 (c). I move:

Omit paragraph (c).

I think the Opposition has an overwhelmingly good case. The greatest students and the most competent people who have thought about the Constitution - and I include both Quick and Garran - have come to exactly the same conclusion as we, in the Opposition, have come to. In other words, if honourable members read Quick and Garran and understand the constitutional principles and the realities of a federal and democratic system that guided the fathers of the Constitution, they must come to the conclusion that before a referendum is put to the Australian people they must be informed of exactly what is involved in the proposed change. Do the people of Australia want to sustain federalism?

I believe that certain other matters ought to be drawn immediately to the attention of honourable members.

The Prime Minister on at least 2 occasions has stated that amendments to the Constitution are not necessary and that if the Government wants to carry out its objectives it cannot treat the Constitution as an alibi. Secondly, as I think my colleague the honourable member for the Northern Territory (Mr Calder) would point out, the representatives of the people in the Northern Territory, and particularly the representatives of the Labor Party in the Northern Territory, believe/ that this matter should be discussed by the Constitutional Convention. I believe that this is a matter which could easily be considered by the Constitutional Convention. It should at least be able to submit a report and recommendation which would give all of us the opportunity for more mature consideration and more mature thought before any further action is taken. What is proposed in the Bill would not be in the best interests of the Australian people. For that reason the Opposition decided to move the amendment, which I have already circulated, and we will divide on this amendment.

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