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Thursday, 28 September 1972
Page: 1315

Senator MURPHY (New South WalesLeader of the Opposition) - by leave - Mr President, ! regret that we had no opportunity of knowing that this notification or determination was to be presented or that the Prime Minister (Mr McMahon) was to make this statement because it appears to raise considerations of the greatest magnitude. Section 24 of the Constitution stales:

The House of , Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of senators.

The number of members chosen in the several States shall be in proportion to the respective number* of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner:

(i)   A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators;

(ii)   The number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State.

Then there is a provision for a minimum number of members. There are to be at least 5 member* chosen in each original State. In section 26 there are certain other provisions guaranteeing that there will be certain numbers in respect to certain States. This means that the Constitution contemplates and appears to guarantee that the entitlement of a State to membership in the House of Representatives shall be determined in a certain manner. The Constitution, not any Act of this Parliament, states that the number of members chosen in the several States shall be in proportion to the respective numbers of their people. The quota is to be determined by dividing the number of people as shown by the latest statistics of the Commonwealth by twice the number of senators, and then there is a formula to work out what the appropriate representation shall be.

From the documents which have just been tabled it appears that the entitlement determined is 45 for New South Wales, 34 for Victoria, 18 for Queensland, 12 for South Australia, 10 for Western Australia - I understand that is one more than it now has - and 5 for Tasmania. Does it not seem, therefore, that Western Australia is entitled to have 10 members elected, as a constitutional right, at the forthcoming election? If it has that constitutional right it may well be that the provisions of the Electoral Act, which do not conform with that view, will not prevail against the constitutional right. If the Government has delayed taking action, designedly or otherwise, and this results in a situation where a Slate will not be electing its correct representation, it may well be that that State is entitled to its number of representatives according to the Constitution. I am not being dogmatic but am trying to assist the Senate at this juncture. It may well be that the other provisions of the Constitution relating to what happens in the absence of a division of the State have to apply, those being provisions which may, on certain views, mean that the State as a whole would elect its representatives.

Senator Greenwood - I do not think you can take it that far.

Senator MURPHY - The AttorneyGeneral interrupts and says that it cannot be taken that far.

Senator Greenwood - I do not think you can take it that far. I am talking about your argument.

Senator MURPHY - I think the Senate and the Parliament is entitled not merely to interjections made here by the AttorneyGeneral. We are at least entitled to the formal opinion of the Solicitor-General of the Commonwealth about the entitlements. I suggest that that opinion ought to be obtained as speedily as possible. Where, under the Constitution, a State is entitled to more representatives than are provided for under the divisions which have taken place - those divisions being applicable at present - we should know what should be done in respect of the election in order that that State may have its full entitlement in the House of Representatives. This matter ought not to be decided upon a viewpoint casually interjected into this debate by the Attorney-General. The formation of the next Parliament is involved and there should be no doubts about this matter. There could well be a close division in the political representation in another Parliament as occurred after the 1961 and 1969 elections. Who knows? Not only the rights of Western Australia but also the rights of all of the people of Australia to a parliament constitutes as provided under the Constitution may be involved. 1 suggest that one thing which emerges out of this as a matter of extreme urgency and importance is that the constitutional position should be put to rest as quickly as possible Certainly consideration ought to be given by this chamber, if not by the other place, to what should be done in the circumstances. I submit that at least the opinion of the Solicitor-General on the proper constitutional course should be obtained and put before the Senate as rapidly as possible in light of the notification which has been placed before the Senate. I ask the Minister for Civil Aviation whether he will indicate that he will do so, otherwise I propose to move a motion in relation to the matter.

Senator Mulvihill - Mr President-

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