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Wednesday, 21 November 1973
Page: 2013

Senator MURPHY (New South WalesAttorneyGeneral and Minister for Customs and Excise) - I move:

That the Bill be now read a second time.

The purpose of this Bill is to amend section 128 of the Constitution, the provision in the Constitution which lays down the way in which the Constitution itself can be amended.

Senator Byrne - It is a Bill for a referendum to amend the Constitution, not a Bill to amend the Constitution, is it not?

Senator MURPHY -The purpose of the Bill itself is to amend section 128 of the Constitution and that can only be done by passage through 2 Houses, normally, and the endorsement of the people at a referendum; or, exceptionally, by passage through one House together with the endorsement of the people. Nevertheless -

Senator Byrne - It is to provide for the holding of a referendum. That is strictly the position.

Senator MURPHY - It involves, of course, more than the holding of a referendum. This is part of the operative process. The operative processes require not only the holding of a referendum but also passage of the measure through both Houses or, exceptionally, through one House. This is part of the process. It is not merely the holding of a referendum but the endorsement of both Houses. It was properly described as I described it a little earlier.

Two changes are proposed to section 128. By the first, we aim to facilitate alterations to the Constitution by amending the requirement that, in addition to a majority of electors voting, there needs to be a majority of States in a referendum to amend the Constitution. The amendment will change the requirement to consent by voters 'in not less than one half of the States'. By the second, we aim to give a vote in referendums- I am a little with you, Mr President, in finding this a bit harsh on the ears but I think it is the way in which it has been chosen to refer to it in the Bill, although I have some regrets about it. As I was saying, by the second, we aim to give a vote in referendums to the people of our mainland territoriesthe Australian Capital Territory, including Jervis Bay, and the Northern Territory.

The real difficulty is that the Australian Constitution has proved in practice to be extremely difficult to amend. Although 26 proposals for amendment have been put to the people since 1901, only 5 of these have been passed. I remind honourable senators that there have been no less than 26 amendments to the Constitution of the United States, of which eleven have been since 1900. After exhaustive investigation, the Joint Committee on Constitutional Review in 1958, and again in 1959, recognised the vital interest of the people in proposed Constitutional alterations. In its 1958 report, the Committee observed: . . If a clear majority of the electors who vote at a referendum are in favour of a proposed law, their will should not be frustrated because separate majorities of electors have not been obtained in a majority of the States. It is, in the Committee's opinion, more in accord with democratic principle and the developments since Federation that it should be sufficient to obtain separate majorities in at least one half of the number of States.

The 1959 report of the Committee had this to say:

Something should be done, in the Committee's opinion, to reduce the excessive rigidity which experience has shown that section 128 possesses and the committee proposes that it should be sufficient to obtain separate electoral majorities in at least one-half of the States instead of in a majority of States.

The Committee's proposal would not disturb the Federal fabric of the Constitution, inherent in section 128, but its proposal would serve to lay more emphasis on Constitutional change by the democratic process of majority vote than there at present exists.

Section 128 of the Constitution says:

If, in a majority of the States, a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen's assent.

This provision, in respect of the requirement to have 'a majority of the States' as one of the conditions for the passing of a referendum, does not, in our view, put the right emphasis and value on a national vote and imposes an undesirable rigidity on the system. The emphasis should be on flexibility and on what a majority of the electors want, wherever they live, while retaining a proper position for the states.

We are one nation, we are one people, and on national issues it is desirable that the will of the nation should be determined more by the total vote of all the people entitled to vote than by State borders. The need to change the emphasis by amending section 128 of the Constitution has been felt for years; but like so much else, including the second proposal I will put in a moment, nothing- I say nothing- was done by our predecessors in office. By the new proposal, it will still be possible to obtain an amendment of the Constitution only if a majority of all the electors voting agree, but instead of requiring a majority of the States- which at present means 4 out of the 6 States, and thus a two-thirds majority- what we are proposing is that a majority of voters in not less than half of the States will be necessary, as well as an overall majority of voters.

The provision requiring a majority of States was put in to protect the interest of the smaller States. A reference to Quick and Garran indicates that the framers of the Constitution had in mind that new States would quite quickly be created- which would have made more relevant the provision requiring a majority of States. But the two-thirds majority is unreasonably high and, given that we have not gone beyond the original 6 States, means in the elegant words of the Constitution Review Committee that 'for every State in which there is an adverse vote there must be a favourable vote in two states ... a Constitutional change has to be supported not only by a majority of States but by two-thirds of the States. '

I believe that this change will bring the constitutional provisions more into accord with the spirit of the founders in 1901; more into accord with today's mood of national awareness; and more into accord with democratic principles and processes. At the same time, in case any have a sense that this change will make amendment of the Constitution too easy, let me remind honourable senators that had the original Constitution requirement been for no less than one-half of the States, as we now propose, only two more of the 26 proposals put to the people would have been approved.

Senator Withers - Why alter it?

Senator MURPHY - Two more is a substantial advance. They were both submitted at the 1946 referendum. One was to give the National Parliament power to make laws with respect to the organised marketing of primary products unrestricted by section 92. The other dealt with the terms and conditions of industrial employment. Both secured an overall majority of total votes but a majority in only 3 States. They were therefore not carried.

As a matter of historical interest social service proposals of a wide-ranging nature which were submitted at the same time obtained a majority in all States and an overall majority. I come now to the second part of the proposal contained in this Bill. It is designed to remove the anomaly that Australian citizens in our mainland Territories have no voice or vote in constitutional referendums. There are 264,000 Australian citizens in the 2 Territories- the Australian Capital Territory, including Jervis Bay, and the Northern Territory- of whom 130,700 are voters. They have elected representatives to the House of Representatives; and they would also have representation in this House, if the Opposition had not blocked our legislation, which would have provided for this in accordance with the Australian Labor Party platform.

It is wrong that residents of the Territories should be denied a vote at referendums. They are citizens equal in every way to their compatriots who live in the States. They have asked for their rights often enough. As recently as 1 1 October this year the Legislative Council for the Northern Territory passed a resolution seeking voting rights in referendums on the same conditions as those enjoyed by citizens in the States. They conveyed to the Prime Minister their disquiet at the continued denial of this right. The Government shares that disquiet. The people of the Australian Capital Territory have sought no less. They, too, are entitled to the vote.

Between 1965 and 1967, before and after the last referendum- on the nexus with the Senate and also on Aborigines- the Australian Capital

Territory Advisory Council passed a series of resolutions seeking voting rights for Australian Capital Territory residents at referendums. They were refused. They were fobbed off with the promise of review. In 1970, I understand, the former Government considered the matter, but took no action. Like so much of the business of those days, I imagine it stood deferred. We are now doing a very simple and proper thing.

In this Bill we seek to delete from the Constitution that part of section 128 which limits voting at referendums to people qualified to vote 'in each State'.

It is reasonable that electors of the Territories should have the same right as electors of the States to determine the subjects on which the Australian Parliament should have the authority to make laws for the whole nation. If this proposal is carried, electors in the Territories will have the right to vote in all subsequent referendums. The electors of the Territories may be thought to have an added claim to voting in national referendums on constitutional matters. As residents of the Territories, they are more immediately associated with laws on many subjects enacted by the Australian Parliament than are the people of the States. The electors of the Territories may in this sense be able to contribute their informed judgment on many of the matters likely to be the subject of constitutional referendums. They have been denied their rights for too long.

This Bill will join the 3 proposals for alteration of the Constitution at present before the Senatethe proposals for simultaneous elections of the Senate and the House of Representatives, for democratic electorates, and for powers in relation to local government finances. These 4 proposals will be joined later by a further proposal foreshadowed by the Prime Minister in the House of Representatives on 8 November 1973 and also in the week immediately following the Constitutional Convention. This relates to a mutual reference of powers between the national Parliament and the Parliaments of the States. Consultation is continuing with the States. I anticipate that a text agreed with the States will be ready for introduction early next year.

We believe that the 2 changes to section 128 of the Constitution contained in this Bill will put referendums on a more democratic basis and make it more possible for the Constitution to reflect more accurately, in contemporary terms, the spirit and the fact of Australia as one united nation. I commend the Bill to the Senate.

Debate (on motion by Senator Withers) adjourned.

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