House of Representatives
6 March 1974

28th Parliament · 2nd Session

  1. House of Representatives
  2. 28th Parliament
  3. 1974

Mr SPEAKER (Hon. J. F. Cope) took the chair at 2.30 p.m., and read prayers.

page 77

PETITIONS

The Clerk:

– Petitions have been lodged for presentation as follows and copies will be referred to the appropriate Ministers:

National Health Scheme

To the Honourable the Speaker and members of the House of Representatives in Parliament assembled:

The humble petition of undersigned citizens of Australia respectfully, showeth:

That the proposed ‘free’ national health scheme is not free at all and will cost four out of five Australians more than the present scheme.

That the proposed scheme is discriminatory and a further erosion of the civil liberties of Australian citizens, particularly working wives and single persons.

That the proposed scheme is in fact a plan for nationalised medicine which will lead to gross waste and inefficiencies in medical services and will ultimately remove an individual’s right to choose his/her own doctor.

Your petitioners therefore humbly pray that the Government will take no measures to interfere with the basic principles of the existing health scheme which functions efficiently and economically.

And your petitioners, as in duty bound, will ever pray. by Mr Anthony, Mr Drury, Mr Jarman, Mr Kelly and Mr McLeay.

Petitions received.

Television

To the Honourable the Speaker and members of the House of Representatives in Parliament assembled:

The humble petition of the undersigned citizens of Australia respectfully showeth:

That the undersigned men and women of Australia believe in a Christian way of life; and that no democracy can thrive unless its citizens are responsible and law abiding.

Your petitioners therefore humbly pray that the members in Parliament assembled will see that the powerful communicator, television, is used to build into the nation those qualities of character which make a democracy work - integrity, teamwork and a sense of purpose by serving, and that television be used to bring faith in God to the heart of the family and national life.

And your petitioners, as in duty bound, will ever pray. by Mr Ashley-Brown, Mr England and Mr Ruddock.

Petitions received.

Australian National Anthem

To the Honourable the Speaker and members of the House of Representatives in Parliament assembled:

The humble petition of the undersigned citizens of Australia respectfully showeth:

That there are many people in Australia who still prefer ‘God Save The Queen’ as the National Anthem in preference to the alternatives that have been suggested.

Your petitioners therefore humbly pray that the House of Representatives will urge the Government to include God Save The Queen’ in any referendum or poll held for the purpose of deciding the future of a national anthem.

And your petitioners, as in duty bound, will ever pray. by Mr Fisher.

Petition received.

Defence Service Homes

To the Honourable the Speaker and members of the House of Representatives in Parliament assembled:

The humble petition of electors of the State of Victoria respectfully showeth:

That ex-servicewomen who enlisted during World War II have been discriminated against in the interpretation and administration of the War Service Homes Act 1918-1971, now amended to Defence Service Homes Act 1918- 1973.

Whilst on enlistment they were prepared to serve in any area, ex-servicewomen who did not actually serve outside Australia are at present debarred from War Service Homes rights.

Your petitioners therefore humbly pray that immediate action be taken to grant War Service Homes rights to all wartime ex-servicewomen, whether married or single and without restriction as to dependants, and your petitioners, as in duty bound, will ever pray. by Mr Jarman.

Petition received.

Television Programs

To the Honourable the Speaker and members of the House of Representatives in Parliament assembled:

The humble petition of electors of the Federal Division of Macquarie respectfully showeth.

That the undersigned men and women are deeply concerned that the powerful medium of television is increasing its content of sin and violence and particularly the possible content of a certain programme outlined in T.V. Times of 24-30th November, 1973 which suggests that acts of rapes, attempted rapes, pack rapes, incest, homosexuality, lesbianism, wifeswapping, unnatural acts with animals, including intercourse with animals, may be incorporated in 1974 in programme Number 96.

Yourpetitioners therefore humbly pray that the Members of Parliament assembled will take such action as will keep from the screens in private homes such elements in programmes which can only have a damaging effect upon the moral and social life of the Community.

And your petitioners, as in duty bound, will ever pray. by Mr Luchetti.

Petition received.

Second Major Airport for Melbourne

To the honourable the Speaker and members of the House of Representatives in Parliament assembled:

The petition of the undersigned electors of the Division of Flinders respectfully showeth:

That concern is felt by electors in the said Division at the prospect of a second major airport to serve Melbourne being constructed in the area south of the Princes Highway and between a north-south line through Cranbourne on the west and a north-south line through Yannathan on the east, because:

  1. The living conditions of residents would be detrimentally affected by

    1. the invasion of privacy and peace, both day and night;
    2. the pollution caused by the jet aircraft using the airport and also by industries established to serve the airport; and
    3. the ear-assaulting noise of the aircraft which would use the airport.

  2. The livelihood of residents would be adversely affected by

    1. a decrease in the value of real estate on the fringe of the airport;
    2. the emission of air-oxidants, known to affect crop yield and quality, from the jet aircraft which would use the airport; and
    3. the take-over of many viable farms, on some of the most productive agricultural land in Victoria, as the site for the airport itself.

  3. The construction of the airport would mean the destruction of the Quail Island sanctuary and other bushlands which provide the ecological environment for native animals and birds.

Your petitioners most humbly pray that the House of Representatives in Parliament assembled will take immediate steps to seek an alternative site for the proposed airport.

And your petitioners, as in duty bound, will ever pray. by Mr Lynch.

Petition received.

Second International Airport for Sydney

To the Honourable the Speaker and members of the House of Representatives in Parliament assembled:

The humble petition of the undersigned citizens of Australia respectively showeth:

That jet aircraft operations have a detrimental effect by way of air and noise pollution on the environment and therefore on the lives of citizens living in the general area. That in close proximity to the proposed Galston airport site are the Berowra Reserves, the Hallstrom Nature Reserve and the Muogamurra Sanc tuary, and areas of Sydney’s Green Belt, which would be so affected and should be preserved for future generations.

Your petitioners therefore humbly pray that this House take appropriate steps to ensure that the Government does not proceed with the proposal to site the second International airport for Sydney in the Galston area or surrounding north-western suburbs of Sydney.

And your petitioners, as in duty bound, will ever pray. by Mr Ruddock.

Petition received.

page 78

NOTICES OF MOTION

Hours of Sitting

Mr DALY:
Leader of the House · Grayndler · ALP

– I give notice that at the next sitting I shall move:

That, unless otherwise ordered, the House shall meet for the dispatch of business on each Tuesday at eleven o’clock a.m., or such time thereafter as Mr Speaker may take the Chair, on each Wednesday at fifteen minutes past two o’clock p.m. and on each Thursday at ten o’clock a.m.

Adjournment of Sitting

Mr DALY:
Leader of the House · Grayndler · ALP

– I give notice that at the next sitting I shall move:

That, unless otherwise ordered, at half-past ten o’clock p.m. on each sitting day the Speaker shall propose the question. ‘That the House do now adjourn’ which question shall be open to debate; if the House be in Committee at the time stated, the Chairman shall report progress and upon such report being made the Speaker shall forthwith propose the question ‘That the House do now adjourn’ which question shall be open to debate.

Provided that:

if a division be in progress at the time fixed for interruption such division shall be completed and the result announced,

if, on the question ‘That the House do now adjourn’ being proposed, a Minister requires the question to be put forthwith without debate, the Speaker shall forthwith put the question,

nothing in this order shall operate to prevent a motion for the adjournment of the House being moved by a Minister at an earlier hour,

any business under discussion and not disposed of at the time of the adjournment shall be set down on the Notice Paper for the next sitting, and

if the question ‘That the House do now adjourn’ is negatived, the House or Committee shall resume the proceeding at the point at which they had been interrupted.

Provided further that, if at eleven o’clock p.m., the question before the House is That the House do now adjourn’ the Speaker shall forthwith adjourn the House until the time of its next meeting.

page 79

QUESTION

DEPARTMENT OF ABORIGINAL AFFAIRS

Mr SNEDDEN:
BRUCE, VICTORIA

– My question is addressed to the Prime Minister. I refer to the prosecution of a man named McLeod in the Canberra court last Friday. I ask the honourable gentleman: Does he believe that the court was misled in that it was told that a gun in the possession of Mr McLeod was unloaded at the time he threatened officers of the Department of Aboriginal Affairs with it?

Mr SPEAKER:

-Order! I remind honourable members of standing order 153, which provides that a question or a preface to a question or an answer to a question should not be critical of any individual. If it is it should be placed on the notice paper. I do not think that that question was critical, and I ask that the answer, too, be not critical.

Mr WHITLAM:
Prime Minister · WERRIWA, NEW SOUTH WALES · ALP

– Questions about this matter were asked and answered in the Senate yesterday. The Attorney-General yesterday discussed the matter with the head of his Department who set in train immediately a further and full investigation into the circumstances of the incident at the office of the Department of Aboriginal Affairs in Canberra on the 28th of last month. The head of the Department has given instructions to the Commissioner of the Australian Capital Territory Police and the Crown Solicitor on this matter. The Minister in this chamber representing the Attorney-General has copies of those instructions which I ask to be incorporated in Hansard.

Mr Snedden:

– Will you answer the question?

Mr WHITLAM:

– I have. I ask leave for the instructions to be incorporated in Hansard.

Mr SPEAKER:

-Is leave granted?

Mr Snedden:

– Leave is granted, but I take the point of order that the Prime Minister has not answered my question.

Mr SPEAKER:

-Order! There is no point of order involved. (The document read as follows) -

The Crown Solicitor,

I attach a copy of a minute I have given this morning to the Commissioner, A.C.T. Police, concerning the incident at the office of the Department of Aboriginal Affairs on 28 February 1974. As indicated in the minute to Mr Wilson I wish you to give him every assistance in determining whether an additional charge or additional charges should be laid against any person.

I wish you also to examine the transcript of the proceedings before Mr Nicholl, S.M., in the Canberra Court of Petty Sessions on 1 March 1974 for the purpose of determining whether any breach of the law was committed by any person arising out of evidence given before the Court. We should confer with the Solicitor-General before any further charges are laid.

Could you please discuss further with me as the matter proceeds.

W. HARDERS

6 March 1974

The Commissioner, A.C.T. Police

The Attorney-General has directed that a full investigation be made into the circumstances of the incident at the office of the Department of Aboriginal Affairs in Canberra on 28 February 1974 following which Mr Robert McLeod appeared before the Australian Capital Territory Court of Petty Sessions on a charge of carrying an unlicensed pistol contrary to the provisions of the Gun Licence Ordinance.

The investigation you are to make should cover the question whether any further charges should be laid against any person.

I wish you to involve yourself personally in the further investigation with, of course, such assistance from your officers as you consider appropriate. I have asked the Crown Solicitor to assist you in determining whether any additional charges should be laid and I have given the Crown Solicitor a copy of this minute to you.

W. HARDERS

6 March 1974

page 79

QUESTION

HOUSING FINANCE

Mr MORRIS:
SHORTLAND, NEW SOUTH WALES

– Has the attention of the Minister for Housing and Construction been drawn to Press reports that the New South Wales Minister for Housing, Mr McGinty, has made a special $4.1m grant to help people on low incomes to buy their own homes at less than 6 per cent interest. Is it a fact that Mr McGinty said the money had been made available to help people on moderate incomes to obtain a home loan because of the effect of Government restrictions on housing finance? Can the Minister explain why it seems necessary for a State government to help people who appear to be disadvantaged by restrictions imposed by the Federal Government? Further, I ask the Minister: What is the responsibility of the Australian Government towards the provision of this type of housing finance?

Mr Les Johnson:
HUGHES, NEW SOUTH WALES · ALP

– There appears to be some confusion about this matter. Mr McGinty is an even newer Minister than I am, and this could possibly explain some of the things that he has said.

Mr Lynch:

– He has not made as many mistakes as you have.

Mr Les Johnson:
HUGHES, NEW SOUTH WALES · ALP

– The New South Wales Government is not involved in making money available to the people referred to other than money made available by the Australian Government. It is true that people are assisted through the terminating building societies which receive most of their funds under the provisions of the Commonwealth-State Housing Agreement. It might interest honourable gentlemen to know, especially the Deputy Leader of the Opposition who was interjecting, that the total allocation of funds under the Commonwealth-State Housing Agreement this year was $2 18m, an increase of 26 per cent. So I am not sure that the Deputy Leader of the Opposition can claim too much credit for the former Government’s efforts in this regard.

The amount made available through the Home Builders Account to terminating building societies was $71m compared with $56m which was made available by the previous Federal Liberal-Country Party Government. The figure for New South Wales was very substantial indeed. That State received $2Sm as against $17m. So the facts are that it is not just $4.1m which is being made available for these purposes to the New South Wales Government. It is a total of $25.8m. This is made available at 4i per cent and goes through to the borrower at less than 6 per cent - that identifiable category of people who are unable to obtain loans from the traditional building sources - at less than 6 per cent.

page 80

QUESTION

DEPARTMENT OF ABORIGINAL AFFAIRS

Mr LYNCH:

– I ask the Prime Minister the following question: Did he in any way intercede during the incident at the Department of Aboriginal Affairs when officers of that .Department were detained by an individual in possession of arms? If so, will the honourable gentleman inform the House of any advice, instructions or suggestions he gave to Ministers or officers as to how the aftermath of the incident should be handled? Was the Prime Minister informed on either Wednesday or Thursday that an incident was planned at the Department of Aboriginal Affairs on Thursday afternoon?

Mr WHITLAM:
ALP

– The first I heard of the incident was in Mr Speaker’s private rooms during the reception for Her Majesty the Queen on Thursday afternoon when I was informed of the general circumstances by the Attorney-General. I told him that the paramount consideration should be the safeguarding of life.

Mr SPEAKER:

-I would like, if I may, to amend that statement. The reception was held in the President’s suite. The Queen is not allowed on my side of the House.

page 80

QUESTION

QUEENSLAND FLOODS: DAMAGE CLAIMS

Mr HANSEN:
WIDE BAY, QUEENSLAND

– Is the Minister for Housing and Construction aware of retaliatory action taken by the Building Workers Industrial Union in Brisbane against insurance company buildings in protest against the failure of many insurance companies to meet flood damage claims? Can the Minister state whether persons who were insured under the Defence Service homes insurance scheme are being compensated?

Mr Les Johnson:
HUGHES, NEW SOUTH WALES · ALP

– I have read of the trade union attitude to the insurance companies which have not covered insurers against flood damage in Queensland. As I understand it, this matter will be the subject of a meeting between the Treasurer and insurance company representatives in the near future. I do not want to pre-empt any attitude which the Australian Government may have. Nevertheless, I am sure that every honourable member will understand the position of people in Queensland who in the main probably felt that they were covered and who are now languishing in disillusionment.

Mr Whitlam:

– The Queensland Treasurer believed it too.

Mr Les Johnson:
HUGHES, NEW SOUTH WALES · ALP

– I know, and it is a commonly held belief, held not only in Queensland but throughout Australia.

The honourable member in his question referred to the Defence Service homes insurance scheme. This scheme is the biggest in Australia from the standpoint of housing insurance, covering some 200,000 policy holders. A total of 900 claims were made on the Defence Service homes insurance scheme arising out of the floods in Brisbane, all of which were met at a total cost of approximately $2m. It must intrigue every honourable member and the people of Australia at large to learn that the Government insurance scheme can fulfil its obligations in this way even though its premium rate ranges from one-eighth to onequarter of the premium rates charged by insurance companies. It seems to me that some consideration could be given to expanding this principle to insurees other than those who are covered by the Defence Service Homes Act.

page 81

QUESTION

DEPARTMENT OF ABORIGINAL AFFAIRS

Mr ANTHONY:
RICHMOND, NEW SOUTH WALES

– My question, which is directed to the Prime Minister, relates to the incident which occurred last Thursday afternoon when there was an armed seizure of the Department of Aboriginal Affairs. I ask the Prime Minister whether a report was presented to him, or did he call for a report, on the circumstances, and in that report was he told that the revolver or pistol was loaded? If he was told it was loaded, why was this information withheld from the Australian Capital Territory Police and from the court?

Mr WHITLAM:
ALP

– I have received no written or oral report on the matter. The other aspects are being pursued under the directions of the head of the. Attorney-General’s Department after discussions with the AttorneyGeneral. Those instructions are now incorporated in Hansard. Do honourable members wish me to read them?

page 81

QUESTION

NATIONAL ESTATE: WESTERN AUSTRALIA

Mr BENNETT:
SWAN, WESTERN AUSTRALIA

– My question is directed to the Prime Minister. Did he issue a Press statement on Sunday, 24 February, announcing grants totalling $330,000 for this financial year to preserve aspects of the national estate in Western Australia? Did the grants include money for the State Government, local councils, the National Trust and the Esperance Bay Historical Society to preserve buildings and valuable natural areas? Was this Press statement one of the. most important statements for Western Australia in relation to the national estate? Has the Prime Minister’s attention been drawn to the fact that the ‘West Australian’ chose not to report one word of the statement as issued? Can he offer an explanation of why it was not reported in that newspaper? Will he clarify the context of that news release?

Mr WHITLAM:
ALP

– The facts upon which the honourable gentleman based his question are accurate. I cannot understand why the newspaper - one of the monopoly newspapers in that State - did not report this matter of very considerable public interest. However, having read the ‘West Australian’ for some years off and on, I realise that its cover is inadequate and that when it does cover matters it is archaic.

page 81

QUESTION

DEPARTMENT OF ABORIGINAL AFFAIRS: MR HAUSMAN

Mr HUNT:
GWYDIR, NEW SOUTH WALES

– To the Prime Minister’s knowledge, was Mr Selwyn Hausman of the Institute of Criminology present in the room when Mr McLeod’s revolver was unloaded or, to the Prime Minister’s knowledge, did Mr Hausman know that the revolver was loaded? Is Mr Hausman a member of the legal profession? Was he at the court hearing? Did he take any steps to ensure that the correct facts were given to the court? If he did not, is he in breach of his obligations to the court as a member of the legal profession?

Mr WHITLAM:
ALP

– I do not know the learned gentleman whom the honourable member mentions. I do not know of him. If, however, he has committed any breach of his obligations as an officer of the Territory courts, there is machinery to deal with him. Any such breach would be discovered as a result of the investigations which the head of the Attorney-General’s Department, after discussions with the, Attorney-General, set in train immediately yesterday.

page 81

QUESTION

IMMIGRANTS FROM THE PHILIPPINES

Mr GARRICK:
BATMAN, VICTORIA

– My question is addressed to the Minister for Immigration. Has there been a second case similar to that of Sergeant Gamboa of the Philippines? If so, how could this come about when this Government has a non-discriminatory policy? If a similar case has occurred, will the Minister take steps to reverse any decision which would give rise to the headline ‘History - a la Sergeant Gamboa - repeats itself which appeared in one of yesterday’s newspapers?

Mr GRASSBY:
Minister for Immigration · RIVERINA, NEW SOUTH WALES · ALP

– There has been no such case. To illustrate the absurdity of that suggestion, I refer to the nomination made from the Philippines about a week ago by a niece of Sergeant Gamboa. She and her husband went through the usual drill which was established more than a year ago. They were found to be acceptable and I think they are due to arrive shortly. So there has been no such case. I think I should add that this would not have happened in the past. But I do want to say that there has been some confusion. The confusion seems to be based on the idea that we should have a course of action that flings open our doors and says, in effect, that people may come in irrespective of the protection which we are anxious to extend to each and every migrant. Our global procedures are all designed to protect individual migrants. They ensure that everyone who arrives in Australia has a job commensurate with experience, and also accommodation.

In areas where no assessments have been made of professional and trade qualifications it is absolutely important for the protection of people that these procedures be continued when those applications are referred to Canberra. I intend to continue that procedure. It has nothing to do with the ethnic background or racial makeup of the individuals concerned; it has a great deal to do with whether they will in fact have a viability in our country. There are areas in the Americas, in the European and Middle East complex, and also, of course, in Asia where we have not made these assessments. I am pleased to tell the House that the Minister for Labour is considering at the present time a series of recommendations that we should have teams which will establish the qualifications - trade, professional and otherwise - of people from those areas along the same lines as happens with regard to people from traditional migrant source countries. It is not an easy or a short term task but it is under way. I might say that when we undertake this further activity it may help to end some of the current misunderstanding by those who still have to do their homework on policies more than a year old.

page 82

QUESTION

DEPARTMENT OF ABORIGINAL AFFAIRS

Mr COOKE:
PETRIE, QUEENSLAND

– Will the Minister representing the Attorney-General arrange to table in the House as soon as possible the prosecutor’s brief in the McLeod case? If not, why not?

Mr ENDERBY:
Minister for Secondary Industry · ALP

– I will consult the Attorney-General on the matter. I only represent him in this place. It seems to me, however, that what the honourable member asks would be a most unusual course to follow.

Mr Donald Cameron:
GRIFFITH, QUEENSLAND · LP

– It is a most unusual case.

Mr ENDERBY:

– I do not know that it is. The world is full of unusual cases. Perhaps it is appropriate for me to say that I have read the newspaper reports concerned with the subject matter that is being considered by the House at this stage. I have had discussions with the lawyer who acted for Mr McLeod. He rang me last night. I did not ring him. He is a constituent of mine.

Mr Sinclair:

– You were not interested.

Mr ENDERBY:

– I was interested, but as anyone here who knows of the law will agree, it would be completely improper for me to disclose what was said by that gentleman to me because a degree of professional privilege attaches to a brief of that sort. I leave it on that basis here, but certainly I will consult the Attorney-General on the matter and ascertain his views.

page 82

QUESTION

PROPOSED GOSFORD-WYONG DEVELOPMENT

Mr COHEN:
ROBERTSON, NEW SOUTH WALES

– Is the Minister for Urban and Regional Development aware of a report which appeared in the ‘Sydney Morning Herald’ on Wednesday, 27 February, attacking the joint Australian-New South Wales governments’ plan to develop the Gosford-Wyong area as a system city? Does the Minister agree that the Gosford-Wyong area and other areas of existing urban growth should be developed in a rational way?

Mr UREN:
Minister for Urban and Regional Development · REID, NEW SOUTH WALES · ALP

– I am aware of the report. It was a confused report. The decision to develop the Gosford-Wyong area was taken in conformity with the broad policy of trying to develop rationally and at the same time slow the growth of both Sydney and Melbourne. As the honourable member knows, in the dying days of the previous Government a decision had to be made in relation to certain regional growth areas as well as what the former Government called sub-metropolitan centres and what we now call system cities.

Mr McMahon:

– We never called them that; we deliberately refrained from calling them that.

Mr UREN:

– Unfortunately, as the right honourable member who is interjecting knows, the Liberal-Country Party Government was divided. On the one hand the Australian Country Party supported regional growth centres and on the other hand the Liberal Party supported the sub-metropolitan centres. As far as we are concerned as a government, we want to develop both what we call systems cities that will be rational cities built on the fringes of our major cities, and regional growth centres such as Albury-Wodonga, Geelong, BathurstOrange and other regional growth centres in other States. In relation to WyongGosford, about which the honourable member is concerned, this Government, in co-operation with the New. South Wales State Planning Authority, as it was then known - this is now under the Environmental and Planning Department - is working on 5 studies. The first study is on the future growth of Gosford up until the year 1981. The second study is to determine future transport development in that area. The third is an hydrology study to identify flood plains and the badly drained areas. The fourth study is on conservation, to try to identify certain coastal land that should be retained for that area, and to restrict development on the tops of the mountains and in rain forests. This is a very delicate area. Unfortunately, because of the previous federal Government’s not supporting the New South Wales State Planning Authority, which had this same plan under way since 1968, there has been enormous land speculation in that area. The fifth study is an economic base study to determine future growth and job opportunities in those areas. Yes, we will be supporting the development of the Wyong-Gosford area. We will be developing it in a rational way jointly with the New South Wales authorities.

page 83

QUESTION

DEPARTMENT OF ABORIGINAL AFFAIRS

Mr STREET:
CORANGAMITE, VICTORIA

– I ask the Minister representing the Minister for Aboriginal Affairs: Does he consider the action of Mr McLeod in holding a loaded pistol in the Department of Aboriginal Affairs last week was justified?

Mr BRYANT:
Minister for the Capital Territory · WILLS, VICTORIA · ALP

– I will have to get the honourable member to repeat his question. (Opposition members interjecting).

Mr BRYANT:

– If honourable members opposite had paid their own colleague the courtesy of being quiet while he asked the question I could have listened to it. Would he please repeat the question?

Mr STREET:

– I repeat the question to the Minister representing the Minister for Aboriginal Affairs. Does he consider the action of Mr McLeod in holding a loaded pistol in the Department of Aboriginal Affairs last week was justified?

Mr SPEAKER:

-Order! I again draw the attention of the House to standing order 153 which clearly states that if any question or any preface to a question is critical of a person, it should be placed on notice. It is quite clear. I would rather the honourable gentleman place the question on the notice paper in conformity with the Standing Orders.

Mr STREET:

– Does the Minister consider an individual-

Mr Hayden:

– I rise to a point of order, Mr Speaker. It is a serious point about the proprietary of asserting that a certain person carried out certain conduct which is yet to be proved beyond any sort of doubt. As I understand it, this has not been done. I suggest that it is quite unfair to any persons who might be concerned to make such a dogmatic assertion.

Mr SPEAKER:

– That is what standing order 153 is about. It is quite clear and succinct in regard to this particular matter. If a question or a preface to a question is critical to a person it should not be asked without notice; it should be placed on notice. I know that when an honourable member mentioned the name of a person in a question my predecessors used to rule the question out of order immediately.

Mr Snedden:

- Mr Speaker, to the point of order that was raised by the Minister for Social Services or-

Mr Whitlam:

– Security.

Mr Snedden:

– Security, whatever it is.

Mr Whitlam:

– Get up to date.

Mr Snedden:

– I will get up to date. He is the Minister for a failed health service. If he wants to get up to date he should introduce his health scheme into the House.

Mr SPEAKER:

-Order! If the Leader of Opposition intends taking a point of order, I would like him to come to the point of order.

Mr Snedden:

– I shall come to the point of order. The point of order taken was that nothing has been proved beyond reasonable doubt. That is the whole point in this case. The man has not been presented to the court to answer charges on what he did; he has been presented to answer charges which are not relevant to the facts of what occurred. There has been a cover-up in this matter, and that is what we want to get to. It occasions the Prime Minister no good to avoid answering questions.

Mr SPEAKER:

-Order! That is not the point.

Mr Snedden:

– The Minister for Aboriginal Affairs-

Mr SPEAKER:

-Order! The right honourable gentleman will resume his seat. The Minister did not refuse to answer the question. I brought up the point that it conflicts with standing order 153. As I have stated before, I have been in this House long enough to witness my predecessors giving decisions that if a person’s name is mentioned-

Mr Donald Cameron:
GRIFFITH, QUEENSLAND · LP

– It was not mentioned.

Mr SPEAKER:

-It was mentioned. If a person’s name is mentioned, the question is out of order. It should be put on the notice paper. That was the procedure always adopted in the past, and I intend to follow it on this occasion.

Mr Snedden:

– Mr Speaker, may I speak on your ruling. I hope it was not a ruling, because I believe it cannot stand scrutiny. The question that was asked related to a Mr McLeod who was charged in the Canberra court. Yesterday the Minister for Aboriginal Affairs said that the gun was loaded. The honourable member for Corangamite is recapitulating what was said, in fact, in the Senate yesterday on many occasions. He is using the name for identification and doing nothing more than that. If you rule that this question is out of order, Mr Speaker, you are only affording an opportunity for the question not to be answered when, in the national interest, the question should be answered.

Mr SPEAKER:

-Order! The Senate Standing Orders have no bearing on the Standing Orders of the House of Representatives. As I have always said, in my opinion my predecessors were unbiased. They gave very fair decisions. When any person’s name was mentioned in a question the question was disallowed immediately despite what may have been implied in the question. I intend to follow that procedure.

Mr Street:

– Mr Speaker, may I rephrase my question, omitting Mr McLeod’s name and inserting the words ‘action of any citizen’?

Mr SPEAKER:

– That is what the honourable member should have done in the first place.

Mr Street:

– I am now doing it.

Mr SPEAKER:

– Well the question will be in order. (Opposition members interjecting) -

Mr SPEAKER:

-Order! If the honourable member for Griffith keeps chipping in I will suspend him from the service of the House. I ask him to keep quiet for a little while. He is chipping in all the time.

Mr Street:

– Mr Speaker, I seek your guidance. Does the Minister want me to repeat the question?

Mr SPEAKER:

– Did the Minister hear the question?

Mr Bryant:

– Yes.

Mr SPEAKER:

-The Minister will answer the question.

Mr Lamb:

– Mr Speaker, I rise on a point of order. I draw your attention to standing order 144, which states that a question should not ask for an expression of opinion. I believe that the honourable member for Corangamite, by asking whether an action is justifiable, names or no names mentioned, is asking for an expression of opinion and the question should be ruled out of order.

Mr SPEAKER:

-Order! I think the honourable member for Corangamite was seeking an explanation of the action taken, so I think the question is in order.

Mr Enderby:

– Mr Speaker, I rise on a point of order. A very fundamental issue of justice is involved in this case.

Mr SPEAKER:

-Order! The Minister may not put his point of order until there is complete silence in the House. The House will not resume its business until there is silence.

Mr Enderby:

– Thank you, Mr Speaker. It is of some importance to note that when I use the word ‘justice’ catcalls come from the Liberal and Country Parties opposite. A man called McLeod has been brought, through the normal channels of administrative justice - in this particular case, by the Australian Capital Territory Police Force - before a court. As I understand it, he has pleaded guilty to a charge that was processed in the normal way through the normal police channels.

Mr Sinclair:

– The normal police channels? Do you call the withholding of material evidence justice?

Mr SPEAKER:

-Order! The Deputy Leader of the Country Party should cease interjecting.

Mr Enderby:

– The Deputy Leader of the Country Party knows better than what he has said. There would have been an informant to that charge. That informant would have been a constable of police in the Australian Capital Territory Police Force performing his duty, as all policemen do.

Mr SPEAKER:

-Order! The Minister should make his point of order. He should not debate the matter.

Mr Enderby:

– The 21 days for appeal certainly have not expired. Others charges could be brought. Prejudicial statements are being made in this House and everything that the sub judice rule stands for has been flouted and treated with contempt. If the honourable member for Moreton were here we would hear it from the other side, too.

Mr SPEAKER:

-Order! The sub judice rule is not valid in this case until such time as the appeal is made. I call the Minister for the Capital Territory.

Mr BRYANT:

– Insofar as the question implies the guilt of a person who either is to be- charged or was charged with something before a court, I think the question is improper. Insofar as it asks me for an opinion, I do not believe that the question is in order. But insofar as the honourable member wants my answer, the answer is no.

page 85

QUESTION

SHIPPING: PORT OF SYDNEY

Mr REYNOLDS:
BARTON, NEW SOUTH WALES

– Has the attention of the Minister for Transport been drawn to newspaper reports of the extremely costly congestion on Sydney’s waterfront? Is it a fact that often it takes twice as long for goods to be discharged from the wharf as it takes to ship them from distant overseas ports? Is he aware that these reports confirm observations made by honourable members on both sides of this Parliament who recently made a tour of inspection of the many antiquated berthage and dock facilities in Sydney Harbour? Finally, can he say what prospects exist for early relief of this unfortunate condition and what part, if any, the Commonwealth has in the proposed development of the Botany Bay port?

Mr CHARLES JONES:
Minister for Transport · NEWCASTLE, VICTORIA · ALP

– I do not know the opinions of all honourable members of this House regarding the congestion that exists in Sydney Harbour, or Port Jackson, but I know what mine are. It is time that the New South Wales Government got on with the job of developing a port which is efficient and which can handle both our interstate and our international trade efficiently and expeditiously instead of at the present rate. The handling rate at Sydney is about eight or nine containers an hour, which would be absolutely the worst record of any port in the world. The Australian Government is prepared to accept the responsibility of developing and operating all ports engaged in international trade as well as interstate trade. The Government believes that this is its responsibility, and it is prepared to accept that responsibility. I understand that the State Government is considering leasing the terminal. The Australian Government is prepared to accept that responsibility, to accept the lease and to operate it.

In regard to the development of Botany Bay, once again, we have not been involved in that development. In this case, we are prepared to accept a share of the responsibility. In regard to the congestion which exists on the roads and the like in Sydney, the State Government has never been prepared to use the money made available to it by the Australian Government to relieve that congestion by developing a road system which could handle the traffic. However, when this year’s allocations for roads are dealt with, I propose asking the Government to make provision whereby we will decide what roads are to be built with the money to be made available so that at least that section of the bottleneck can be overcome.

page 85

QUESTION

DEPARTMENT OF ABORIGINAL AFFAIRS

Mr SNEDDEN:

– My question is directed to the Minister for the Capital Territory. Precisely when did it become known to him that the weapon used in the confrontation at the Department of Aboriginal Affairs last week was, during that confrontation, in fact, loaded? Did he at any time use his influence or speak to anyone suggesting that the fact that the gun had been loaded during the confrontation should not become public knowledge? Has he spoken with members of the

ACT Police or others involved in the legal proceedings following the incident? If so, to whom did he speak, when, and what was said?

Mr BRYANT:
ALP

– I heard yesterday, I think following question time in another place, of the suggestions or allegations - whatever they were - that the gun was loaded. I have had no discussions with anybody either of the courts or the police on the matter. They do not come within my jurisdiction. I do not propose to hold any discussions of that kind. I believe that the machinery which exists and which has been put in motion is quite adequate to handle the situation.

page 86

QUESTION

SENATE ELECTIONS: POSSIBLE PUBLIC CONFUSION

Mr MATHEWS:
CASEY, VICTORIA

– I ask the Minister for Services and Property whether he will make special arrangements at the Senate elections to minimise public confusion arising from recent suggestions that one of the parties contesting those elections is not needed and that its best known member should join another party to stave off right wing influences?

Mr DALY:
ALP

– The question is a very reasonable one and quite unexpected. The question regarding the confusion that might exist because of certain statements which have been made by the Leader of the Opposition in reference to a political party in this country is a matter of national importance. I am aware that the Leader of the Opposition has stated that the Australia Party is unnecessary and, as such, it cannot add much to the Australian political content. However, this statement is rather strange and must be judged against the background of what happened previously. It is a strange suggestion to make, particularly when I understand there was a clandestine meeting in the middle of the day at Primo’s at Elizabeth Bay at which the Leader of the Opposition sought to woo this fair young political beauty. He then turned around a few days later and said that the Australia Party was unnecessary. May I recommend to the right honourable member that age old axiom that you never start to make love to a girl by kicking her in the shins? That is precisely what he did.

Romance is really blossoming and blooming on the Opposition benches. We have the Australian Country Party and the Democratic

Labor Party aligned in a marriage of convenience and the poor Leader of the Opposition is seeking a bride and nobody will have him. I understand that, again, the real trouble in all this is the honourable member for Wannon, because the Leader of the Opposition is seeking another political bride to curtail the activities of that distinguished gent on that side of the fence. All. this makes realistic the suggestion made by the honourable member for Casey that the public may well be confused. I will consider what action could be taken in respect of it. However, if the Leader of the Opposition, particularly, is to continue along his lovemaking way, I would suggest that he should always remember that love is like a photograph: It must be developed in the dark.

page 86

QUESTION

DEPARTMENT OF ABORIGINAL AFFAIRS

Mr ANTHONY:

– My question to the Prime Minister is a follow-up to the question I asked him earlier. Can he inform the House when he first learned that the gun was loaded? Was it only after the information had been prised out of his Ministers in the Senate yesterday? Can he now explain why arrangements were made to withhold from the police the information about the siege? Who made the decision that the information was to be withheld? Finally, does the Prime Minister agree that the withholding of this information and the deception practised concerning the condition of the gun carried by Mr McLeod resulted in the court being misled? Does he agree that if there is not a full public inquiry into these matters and into the attempts to cover up the real story there must remain a very real suspicion that there has been a conspiracy to mislead the court and the public and to deny the administration of justice?

Mr WHITLAM:
ALP

– When the Leader of the Country Party or the National Party, or whatever its name is this week, commenced his question by asking whether I knew the gun was loaded I thought he was trying to cap my colleague’s answer to the previous question about a shotgun marriage. I learned that the gun was loaded after my colleague the Minister for Aboriginal Affairs, Senator Cavanagh, stated that fact in the Senate yesterday. There might have been a miscarriage of justice. There might have been a conspiracy to pervert the course of justice. Inquiries are in hand to ascertain the facts.

page 87

QUESTION

DEFENCE FORCES: TIME OFF IN LIEU OF EXTRA HOURS WORKED

Mr NICHOLLS:
BONYTHON, SOUTH AUSTRALIA

– I preface my question to the Minister for Defence by saying that I understand that all servicemen who work additional hours outside their usual hours of work are subsequently reimbursed with time off provided that time off is taken within 28 days. In view of the outstanding efforts of servicemen during the recent disastrous floods in the north of Australia - particularly members of the Royal Australian Air Force, some of whom lost their lives - will the Minister give an assurance that no serviceman will be debarred from receiving time off for the extra hours worked?

Mr BARNARD:
Minister for Defence · BASS, TASMANIA · ALP

– Of course the answer is yes. As I indicated to the House yesterday, we all acknowledge the contribution made by members of the Services, very often in trying circumstances, during the disaster in Queensland. They should not be penalised in any way. I appreciate the honourable member’s suggestion. I will have the matter examined - I hope, sympathetically.

page 87

CONSTITUTION ALTERATION (SIMULTANEOUS ELECTIONS) BILL 1974

[No. 2]

Second Reading

Debate resumed from 5 March (vide page 65), on motion by Mr Whitlam:

That the Bill be now read a second time.

Mr MORRIS:
Shortland

– In this cognate debate this afternoon I want to speak in support of the Constitution Alteration (Local Government Bodies) Bill. This Government is committed to a policy of uplifting the status and financial capacity of local government. It has received a clear mandate from the Australian people to do this. It has the support of the Federal Organisation of Local Government Bodies and the Australian Council of Local Government Associations in its efforts to bring about the reforms outlined in the proposed referendum. It is all very well for members of the Opposition to decry the Government’s efforts to strengthen and uplift the whole fabric of local government, but it was during their 23 years of administration that local government had placed on it the intolerable debt burden it now carries. Throughout local government for many years there has been a growing and expanding call for direct financial assistance from the central tax collecting authority. If local government is to play the greater and more effective role that the people of Australia require it to play, then the effective influence that local government exercises in relation to fundamental decision making affecting its activities must be increased. Such an increase will represent a most significant step towards true federalism or true local participation in public affairs and, indeed, true decentralisation of government.

This Government secured the representation of local government at the Constitution Convention. The Australian Grants Commission has been expanded. Local government has readily formed itself into regional groupings and these groupings have been recognised by this Government for the purposes of the Australian Grants Commission Act. Presently applications are being processed by the regional groupings for submission for consideration for grants by the Australian Grants Commission. Under the Australian assistance plan special aid is being made available to local government authorities to enable them more effectively to provide health and welfare services in their communities.

Let us look again at the comparison of State and local government borrowings since 1947. In that year the total debt of local government authorities was $140m or about 7 per cent of total State government debt. In June 1971 on preliminary figures provided by the Government Statistician, the debt had risen to $l,730m or almost 15 per cent of estimated total State government debt at that date. In the 24 years local government authorities’ debt had increased twelvefold compared with an increase of not quite sixfold in the State governments’ total outstanding debt. Yet after that period of enormous growth in the range and cost of local government responsibilities its voice in the place where the nation’s broad public borrowing programs were determined was still as it was at the beginning, that is, nil.

If the existing financial agreement from the 1920s were being drawn up now, local government most certainly would have a say. Under present conditions, local government is left largerly to fend for itself, and it is no wonder that the cost of borrowing bears so heavily at an increasing rate on their budgets. The picture varies from State to State and as between individual authorities, but the fact is that in 1970-71 the overall interest payment by local government authorities was equivalent to about 12 per cent of their revenue. Interest payments plus capital repayments in the same year totalled $ 177.5m or about 25 per cent of revenues. If the Australian Government were able to borrow on behalf of local government authorities the servicing costs would be appreciably lower. What has happened is that local government has been squeezed between the exanding expectations of society and the limits of its resources. Ratepayers are being squeezed between increasing council rates and soaring land valuations.

The Leader of the Australian Country Party (Mr Anthony) yesterday referred to the New South Wales Local Government Assistance Commission. He suggested that bodies such as this would be better equipped to assess the needs of councils and the financial assistance they should receive from the Federal Treasury through the States. He really means that local government should continue to remain the captive of the States. If one were to examine the $4m originally made available to New South Wales by the Local Government Assistance Commission in its initial year one would find that this amount more or less equated the rates that would have been payable by the New South Wales Government on properties owned by that Government in that year if rates had been payable on those properties. It had little relation to the needs of local government in that year. Since that initial year there has been a gradual increase in the amount of money made available by the New South Wales Treasury. I repeat that even though the New South Wales Local Government Assistance Commission carries out . a survey of local government needs in that State, the amount that is made available is based on the original amount of $4m.

Does the Leader of the Country Party suggest that the Australian Grants Commission is less able to assess financial needs in Australia than the New South Wales Local Government Assistance Commission? Why did not the governments of which he was a member in the many years in which they were in office, move to provide direct assistance to local government? If local government is to widen its present revenue collecting base, at least in New South Wales, the State Government must amend the Local Government Act of 1919. It has not done so. It has not incorporated or legislated for the recommendations in relation to financing local government that were made by the 1966 royal commission into local government finance.

Under the present system of local government, revenue is raised from ratepayers only. But only some of the people are ratepayers. All of the people are taxpayers and all of the taxpayers participate in the benefits and services that are provided by local government. In recent years there has been a resurgence of public interest in the ‘activities and decision making processes right at local level - at local council level. Anyone who has had experience of unsewered suburbs, poor health services, poor planning procedures, inadequate local transport, neglected environmental standards, and the shortage of playing fields, community centres and opportunities for culture and recreation can understand why, because for too long local government has been a vassal of the States. We have heard the proposition that all that needs to be done is to give more money to the States and to leave it to them to disburse it to local government. In other words, business as usual. That proposition ignores and obscures the real issues.

Firstly, it is a mistake to assume that the question is about money alone, though much more money is desperately needed by local government. Secondly, the question is very much one of balancing available resources and the flexibility in the creation and application of those resources. Thirdly, it is a question of the ultimate status of local government itself, whether it as a level of government closest to the peoples daily needs should remain a vassal and a captive of the States - a poor relation - or whether it should be given its proper status as a true and participating partner in the federal system. The Australian Government does not seek to deny, limit or reduce the powers of the States, but it certainly does seek to uplift local government and restore to it its proper status as a participating partner in a true federal system.

Local government throughout the nation supports the proposition of this referendum. At Hobart in November 1973 the Australian Council of Local Government Associations resolved to support the efforts of this Government towards local government. Councils are committed to the support of the coming referendum. I want to refer briefly to a statement that was made by Mr Graham Miles, the secretary of the Australian Council of Local

Government Associations, on the radio program ‘AM’ of 21 February this year. Mr Miles said:

We think that the proposals from the Australian Government are to the advantage of local government considerably without affecting adversely anyone else.

On the question of cutting off local government from private finance, Mr Miles said:

We don’t believe that that’s the result at all. At the moment local government is subject to the Loan Council, but we don’t have any part in the deliberations of the Loan Council. The difference is that we’ll be sitting round the table when the decisions are made, instead of sitting outside. Even for a major capital works which might last for SO or a hundred years, the Council borrows money through probably a15 year term and has to renegotiate the loan time and time again. Under the Government’s proposals we will be able to do as the States do- borrow money for a 53 year term. Now to the ratepayer, to the man in the street, this will be quite a big saving.

This is the access to financing which this Government seeks to give to local government.

The attitude of the Queensland Government towards local government access to the Loan Council and towards the subject of this referendum proposal is one almost of animosity. I am informed by a reliable authority that the great democrat, the Premier of Queensland, has told councils in that State that should they receive any direct financial assistance from the Australian Grants Commission, there will be a corresponding reduction in the amount of financial aid which they receive from the Queensland Government.

Mr Cooke:

– When did he say that?

Mr MORRIS:

– For the benefit of the honourable member for Petrie I would like to refer to a report published in the Brisbane Courier Mail’ of 23 February 1974.

Mr Cooke:

– When did he say that?

Mr MORRIS:

– At Wondai. The newspaper report is titled: ‘Premier’s “veiled threat “ criticised’. The Secretary of the Queensland Local Government Association, Mr Max Armstrong, said that it was quite out of place-

Mr SPEAKER:

– Order! The time allotted for the second reading of the Bill has expired. The question is: That the Bill be now read a second time.

Question put:

The House divided. (Mr Speaker - Hon. J. F. Cope)

AYES: 64

NOES: 53

Majority .. .. 11

AYES

NOES

Question so resolved in the affirmative.

Bill read a second time.

In Committee

Clauses 1 to 3 agreed to.

Clause 4 (Issue of writs).

Mr KILLEN:
Moreton

– Because of the exigencies of time I must try to restrict myself to some terms of courtesy, but I find it very difficult to do so in the circumstances. At the root of this proposal lies the bona fides of the Government. The Minister for Services and Property (Mr Daly), who isin charge of the Bill, knows perfectly well the position of his Party. He knows perfectly well the position of the Senate in relation to the Parliament. The Senate is not merely an arm of this House. It owes its existence to clearly stated constitutional provisions. Under this proposal the term of service of a senator shall end upon the expiry of the House of Representatives.

Let me put it another way: If by dint of narrow numbers in this chamber the Prime Minister of the day should have occasion to go to the Governor-General and say T find the burden of governing with a narrow majority difficult’ - for example, Mr Wilson in the present British circumstance - it would mean that the Senate automatically would have to be pulled out. The Leader of the House (Mr Daly) knows that very well. I have no doubt that the Minister reads the Electoral Act with loving care, but I have the gravest doubts as to whether he has read the Constitution. The provisions in the Constitution relating to a double dissolution are clear, and those provisions were inserted for the express purpose of avoiding the dilemma into which the present Government is seeking to thrust the entire country. I would like to know from the Minister - he is not known as the Trappist of the Australian Parliament - precisely what question the Government proposes to put in the referendum to the Australian people.

Mr Daly:

– I would answer that, only I want to give Opposition members time to speak.

Mr KILLEN:

– This is a newfound form of indulgence on the Minister’s part, if he wants to giveus time to speak. I would also like to know from the Minister what explanation he will seek to give to the Australian electorate regarding the significance of the whole of clause 4 of this Bill. Clause 4 of this Bill would be as long a clause as has ever appeared in any Bill passing through this Parliament.

Mr Wentworth:

– It is almost as long as section 5 1 of the Constitution.

Mr KILLEN:

– Precisely. I am indebted to the honourable member for Mackellar for reminding me that it is almost as long as section 51 of the Constitution, which is the main fountain-head of power of this Parliament. The Minister expects the Committee in a matter of 4 or 5 minutes - I know that my friend the honourable member for Petrie (Mr Cooke) wants to say something about this, too - to consider all the ramifications of this provision. It is not fair to the Parliament. The Minister knows it is not fair but, regrettably, he is not prepared to say so. I invite him, before he disposes of this Bill, to tell us in precise terms what will be the form of question put to the Australian people and what explanation he proposes to offer for the extraordinarily long clause which will become a section in the Act that is, making an assumption that it passes through another place; an assumption which is more easily stated than, I believe, carried out. Still, we live for another day. I hope that the honourable member for Petrie may be able to add his words to this debate.

Mr WHITLAM:
Prime Minister · Werriwa · ALP

– I rise to answer the question put by my friend, the honourable member for Moreton (Mr Killen). The question which will be put on the ballot paper for every elector will be: Do you approve the proposed law to alter the Constitution so as to ensure that Senate elections are held at the same time as House of Representatives elections? This is the essence, the whole purpose, the whole content of this Bill. The honourable member for Moreton says that it is complicated. In fact, anybody who cares to read it through will be able to understand it quite clearly. There will have to be transitional provisions to cover the position of senators who took office on 1 July 1971 for what they expected to be a 6-year term extending to 30 June 1977. There will also have to be transitional provisions to cover the position of senators who will take office on 1 July this year and would ordinarily expect to hold office until 30 June 1980. It is quite easy for anybody to understand the clause which makes these provisions.

The argument in favour of this particular referendum proposal, which will be given to every elector, will be substantially the argument which was supported by 11 out of 12 members of the Joint Committee on Constitutional Review which sat in 1956, 1957 and 1958, made an interim report in 1958, and repeated the report with fuller reasons in 1959. The idea that Senate and House of Representatives elections should occur on the same day in Australia, as of course they do in the United States, is not a new one. The argument is stronger now than it was in 1958 and 1959 because since that time there has been a further incidence of elections being put out of harmony.

The CHAIRMAN (Mr Scholes:
CORIO, VICTORIA

– Order! The time allotted for the Committee stage of this Bill has expired. The question is: ‘That clause 4 be agreed to’.

The Committee divided. (The Chairman- Mr G. G. D. Scholes)

AYES: 64

NOES: 54

Majority 10

AYES

NOES

Question so resolved in the affirmative.

Clause agreed to.

Remainder of Bill - by leave - taken as a whole, and agreed to.

Bill reported without amendment, report adopted.

Third Reading

Motion (by Mr Daly) - by leave - proposed:

That the Bill be now read a third time.

Mr COOKE:
Petrie

– The Constitution Alteration (Simultaneous Elections) Bill 1974 is a rather interesting Bill. The policy of the Australian Labor Party is to do away with the Senate altogether. It knows that if it put that question to a referendum it would be trounced. This Bill is an attempt to emasculate the Senate and bring it down simply to the level of a duplicate of the House of Representatives. The whole purpose of the Senate is to provide a chamber which has a longer tenure of office than the House of Representatives, where its members have a longer time in which to concentrate on legislation. The House of Representatives, being elected for a 3-year or shorter period must of necessity be constantly looking towards the next election whereas the senators with a longer span are able to make a more balanced approach to legislation.

Reducing the Senate to a duplicate and having senators elected for the same period of office as members of the House of Representatives would mean that the Senate would serve no useful purpose at all. I suggest this action will be the first step in a campaign by the Labor Party to convince the Australian people that there is no need for the Senate at all. Also, the argument was put just a few minutes ago by the Prime Minister (Mr Whitlam) in the Committee stage that the reason for this Bill is to make sure that elections for the House of Representatives and the Senate are held on the same day. He cited the instance of the United States of America where by its constitutional arrangements all elections are held in December of whatever year it might be. The first or second Saturday in December is election day and all elections are held on that day.

If the Prime Minister seriously wants to achieve that objective he can achieve it simply by fixing a statutory date for commencement of terms for the House of Representatives and making it coincide, with an election date for the Senate. We would then be aligned with the American situation. But for obvious reasons the Government does not want a proposal such as that because it wants to be able to go to the people when it thinks the public opinion polls are favouring it. It wants to be able to go to the people with an election when it thinks that it can sufficiently bribe the people by largess from the public purse. It wants to be able to manipulate the date on which an election is to be held. But if the Government is serious about having elections on the one day, it could achieve this without trying to annihilate the Senate.

That brings us back to the real intention of the Bill, that is, the first step towards convincing the Australian people that the Senate serves no useful purpose and ought to be abolished. It is for this reason that the intention in the title of the Bill is misleading, and grossly misleading. If one did not respect the Prime Minister’s integrity one might even say that it is fraudulent to go to the people and try to persuade them to vote for a Bill which the Government knows is but the first step towards achieving its objective of annihilating the Senate and reducing government in Australia simply to government by decree, which is what would happen.

We have the instance of the Brisbane City Council which is controlled by the Labor Party. There is one opposition member in that Council and the numbers are used with ruthless monotony. The Brisbane City Council sits each week for approximately two or three minutes. Nothing is discussed in the council chamber. If the Senate is abolished the Parliament of Australia will be treated by the Government with the same contempt as that with which the Lord Mayor of Brisbane treats the Brisbane City Council. If the Government had the numbers in a unicameral legislature we would not sit here for so long; we would be here for 2 minutes a week. That is the purpose of this Bill. I hope that when we come to the stage of taking this Bill to the people these points will be made perfectly clear. 1 am sure that when the numbers go up on the polling day when this referendum is submitted there will be a resounding ‘No’ vote in every State in Australia.

Mr COHEN:
Robertson

– I just wanted to jump up and refute some of the spurious and specious statements made by the honourable member for Petrie (Mr Cooke). In the short time he spoke he dealt with 3 matters which were totally dishonest and meant to deceive this House. First of all, he said that if we called for a general election now this would resolve the problem, lt is quite correct to say that it would resolve the problem for that election but the same thing could happen ad infinitum. We could continually get out of plumb. There would not be a guarantee of simultaneous elections in future; it would be only for one election.

The second point that he made was about the Brisbane City Council. He virtually accused the Lord Mayor of Brisbane of some form of malpractice. I remind the honourable member that the Lord Mayor of Brisbane won 19 out of 20 seats on boundaries drawn by the Country Party Government in that State in an attempt to get rid of him. He increased his majority to 19 out of 20. The honourable member talked about the Brisbane City Council meetings. I think a world record for a lack of meetings was established by the Queensland Parliament. I can recall one of the honourable member’s colleagues saying that the Queensland Parliament had not met for something in excess of 8 months. 1 hope that honourable members who speak later on these Constitution Alteration Bills will at least have the decency to treat the truth with some care.

Mr WENTWORTH:
Mackellar

– The Prime Minister (Mr Whitlam) told us that the question to be put to the people would comprise the long title of this Bill. It is regrettable that in Committee we did not get a chance to discuss probably the most important matter that we could be discussing. It is important because the long title which will be put to the people is deceptive in that it does not reveal the full impact of this Bill.

Mr SPEAKER:

-Order! The time allotted for the remaining stages of the Bill has expired.

Question put:

That the Bill be now read a third time.

The House divided. (Mr Speaker - Hon. J. F. Cope)

AYES: 57

NOES: 51

Majority . . . . 6

AYES

NOES

Mr Grassby - Mr Speaker, I rise on a point of order. (Opposition members interjecting)–

page 94

CONSTITUTION ALTERATION (DEMOCRATIC ELECTIONS) BILL 1974

[No. 2]

Second Reading

Debate resumed from 5 March (vide page 45), on motion by Mr Whitlam:

That the Bill be now read a second time.

Mr KILLEN:
Moreton

– I am delighted to be able to bring some tranquility back into our proceedings. The vote which has just been taken is relevant to this debate because it shows that numbers remain of some importance. At first sight no person would object to this Bill for a referendum. The Prime Minister (Mr Whitlam) has said that the question to be put to the people at the referendum - he is making the assumption that the referendum will get to the people, which in view of recent experience is a rather extravagant assumption to make - will be in the form of the long title. As I say, at first glance the question appears to be unexceptionable. It asks: Are you in favour of the democratic election of Parliament? Of course we are all in favour of the democratic election of Parliament. But one cannot be content with merely examining the short title of the Bill. It is prudent - and particularly prudent when the Minister for Services and Property (Mr Daly) has anything to do with it - to look at the fine print. When one looks at the fine print one finds that it is not in accord with the short title of the Bill.

The first observation to be made about this Bill is that it seeks to reach out into the State legislatures in a way that was never within the contemplation of the founders of this Federation, and to direct their affairs. I say to the House and to the Prime Minister that I would not seek to attack the electoral arrangements made in any State in Australia. In general terms I have no fierce respect for them. I am particularly concerned with the arrangements as far as the Commonwealth of Australia is concerned. On that note of ecstasy I sit down, forced by time to do so.

Mr SPEAKER:

– Order! The time allotted for the second reading of the Bill has expired.

Question put:

That the Bill be now read a second time.

The House divided. (Mr Speaker- Hon. J. F. Cope)

AYES: 66

NOES: 54

Majority…… 12

AYES

NOES

Question so resolved in the affirmative.

Bill read a second time.

In Committee

Clauses 1 to 3 agreed to.

Clause 4 (Electoral Divisions).

Mr WENTWORTH:
Mackellar

– The implications of this clause are very great and they are not in accordance with the long title of the Bill which will be put to the people at the referendum. I do not want to deal so much with the substance of the clause as with its calculated deception because the clause does things which are quite outside the long title. The fundamental electoral law hitherto has been that the electors of Australia are the people to worry about - that the people we are concerned with are the people who are citizens of Australia and who have rights as electors. I am not saying that we should not extend this. I do not go so far as to deal with the substance of the clause but what I do say is that the long title does not in itself make clear the extreme gravity of this change in our fundamental electoral law.

Let me again make my position quite clear: I am not at this moment aligning myself on one side or the other as to whether this change is justified. What I am saying is something a little different - that if a change as fundamental as this is to be made, the people should know what they are voting on when they come to the referendum. The effect of this Bill, if we pass it, will be that it will be put to the people at a referendum. Because it is a Bill to alter the Constitution it can have practically no effect until it is approved at a referendum. Normally, of course, with other kinds of Bills, the House of Representatives and the Senate are the final arbitors and judges. The Parliament makes the law. But when one is talking about altering the Constitution, it is the electors in the last run who make the law. Our prime responsibility is a responsibility to the electors and what we must ensure is that the electors are given a clear indication of what they are doing. Everything else is subsidiary to that. The electors must be allowed to know what they are voting on because in this type of case where an amendment to the Constitution is proposed, theirs is the final and important voice.

I have drawn attention in the past to the fundamental bad faith of the Government in respect of these Bills which purport to amend the Constitution and that fundamental bad faith is evidenced in many ways. I think that I would be in order in reminding the House that the Australian Labor Party - the Government Party - is committed to such things as the abolition of the Senate and, therefore, when it comes to a Bill which relates to the Senate, the electors must always look at it in relation to the Government’s ultimate motives. They would see that the Government is trying to play a double game with the people and that the Prime Minister (Mr Whitlam) and the Government are not in point of fact being honest in regard to this matter.

I return to this Bill and to this particular clause of the Bill. I am not trying to speak either for or against the substance of this clause. What I am saying is that this clause is a very far reaching clause. It goes a great way and therefore it is essential that the impact of this clause should be included in the long title because it is the long title which will be put to the people. Most of the electors - probably 99.78 per cent of the electors or something like that - will not have read the substance of the Bill or, at any rate, will not have read it in conjunction with the Constitution. They will not know what changes are really proposed to be made by the Bill. All they will know will be what is on the ballot paper with the long title and the most important thing about a Bill which is to go to a referendum is that the long title should correctly describe the full impact of the Bill.

I look at clause 4 again and I remind the House that it makes a very fundamental change to the whole concept of our electoral system. It is a change which will go right to the roots of the system. As I have said, I am not trying to make out that in substance the change is a good change or a bad change. But I think the whole House will agree with me when I say that in point of fact it is a fundamental change. It is a change which will alter the impact of our whole electoral law. If that is so, the nature of that change should be made clear to the people in the question that is put to them on the ballot paper. They must be given an indication of what the Government is asking them to approve at the referendum. I turn now to the long title and I put it against clause 4.

The CHAIRMAN:

– Order! The time allotted for the Committee stage of this debate has expired. The question is: That clause 4 be agreed to.

Question put:

The Committee divided. (The Chairman - Mr G. G. D. Scholes)

AYES: 65

NOES: 52

Majority . . . . 13

AYES

NOES

Question so resolved in the affirmative.

Question resolved in the affirmative.

Bill reported without amendment; report adopted.

Third Reading

Motion (by Mr Daly) proposed:

That the Bill be now read a third time.

Mr KILLEN:
Moreton

– I intrude for a brief moment or two to ask my friend, the Prime Minister (Mr Whitlam), when he next visits Western Australia to take a very early opportunity to convey to his colleague, the Premier of Western Australia, the precise terms and implications to be found in this Bill and to assure his distinguished colleague - again on the assumption that the Bill is carried - that at the earliest opportunity this Parliament will legislate to ensure that seats in the Kimberleys in the far north-west of Western Australia are brought into community of interest with such places as Albany and that he will hasten, with all possible celerity, to bring about that state of affairs. I also ask my friend when in Queensland to take a similar opportunity to explain to the Queensland people that it is plainly the intention of Her Majesty’s Government, led by him, to ensure that appropriate reforms are introduced under the auspices of this Parliament, because I am quite satisfied that the people of Australia regrettably do not understand all the implications of this Bill and that the Prime Minister, having such a splendid affection for candour, will display it with all possible will and with his customary frankness.

Mr WHITLAM:
Prime Minister · Werriwa · ALP

– I respond with my customary celerity and courtesy to any suggestion coming from my honourable learned and gallant friend from Moreton (Mr Killen). I cannot accede entirely to his suggestion that I should tell the Premier of Western Australia that when this referendum is carried we will immediately introduce and pass legislation to carry it out, because the referendum proposal says that it will only come into effect on 1 July 1976. I shall, however, tell the Premier, who will still be Premier in 1976, that I shall introduce such legislation in the next Parliament. I am surprised that the honourable gentleman did not realise that no legislation could be passed under this referendum, when it is carried, before 1 July 1976, because that is what clause 2 of the Bill says. It is a clause of one line. I should have thought that the honourable gentleman would have had time to read it and intelligence to comprehend it. It says:

This Act shall come into operation on 1 July 1976.

This clause is put in this particular referendum Bill to ensure that every Parliament in Australia will have time to adjust itself to what will then be a contemporary constitutional electoral provision for Australia. Every election due in any Parliament will have been held before 1 July 1976. There will then be ample time for the next parliaments elected in the Commonwealth and the States to intro- duce legislation which will comply with the provisions of this Bill to be put to the people next May and to be carried by them at that time.

Clause 4 of the Bill enshrines in the Australian Constitution the words of the United States Supreme Court in interpreting sections of the United States Constitution which were reproduced in the Australian Constitution. We believe - and we have said for the last 10 years, since the United States Supreme Court, the Warren Court, first laid down this interpretation - that it ought to be put in the Constitution so that elected persons can no longer disregard this proper democratic principle. My Government is putting this referendum to the people because the Senate twice last year rejected amendments to the Electoral Act which would have put a limit to the deviation from the quota of electors in each State. My Government would have been content to have left the matter at that point if the legislation had been carried. It would have put a limit to the deviation permitted under the present laws - in fact, promoted under the laws introduced in 1964 and 1965.

The Constitution Review Committee - all members of the Labor Party, the Liberal Party and the Country Party - unanimously held back in 1958 and 1959 that a one-tenth deviation from the electoral quota was sufficient to bring about a workable, proper distribution of seats in every State in Australia. We put that proposition to the Parliament twice last year.

Mr Anthony:

– The Commonwealth electoral commissioners said that it would not work.

Mr WHITLAM:

– The Country Party members of that Committee agreed that a distribution could be properly and effectively held on that principle. David Drummond and Les Hamilton agreed with that submission. They did not dissent from it. They did not just express no view. They positively expressed the view that a one-tenth deviation was all that should be permitted under the Commonwealth electoral laws. At least this proposition was put to the people by a government last year. Twice it was rejected by the Senate. In those circumstances my Government decided to let the people decide because the Senate cannot prevent the people from voting on a referendum. The Senate can obstruct and it can delay but it cannot abort or prevent the people from voting on a referendum.

Since it came to amending the Constitution my Government decided that the people should be given the opportunity to say that within each State the same provision should apply as the Constitution already spells out between the States. When it comes to determining how many seats in the House of Representatives shall be allotted to each State the Constitution says that one has a number of seats proportionate to the respective populations of the States. The provision that this Bill makes is that in determining the size of the electorates, the seats in each State, one shall have regard to the respective populations of those seats. My friend the honourable member for Moreton quoted the position of the Kimberleys. The Kimberleys are part of the largest geographic electorate in the world - the division of Kalgoorlie - and they well illustrate the deficiencies of the present electoral laws because the present electoral laws say that one shall take into account the number of electors. There are more Aborigines in the division of Kalgoorlie than in any division in Australia. Under the present law those Aborigines can be taken into account only if they enrol. Aborigines alone among Australians do not have to enrol. This provision will require Aborigines to be taken into account in determining the size of an electorate, even if the Aborigines do not choose to enrol. In fact, you will have a proper distribution in Kalgoorlie and the Kimberleys and any disputes will be determined by the High Court.

Mr SPEAKER:

-Order! The time allotted for the remaining stages of the Bill has expired.

Question put:

That the Bill be now read a third time.

The House divided.

AYES: 0

NOES: 0

AYES

NOES

Bill read a third time. (Mr Speaker - Hon. J. F. Cope)

Ayes 66

Noes 54

Majority 12

page 98

CONSTITUTION ALTERATION (LOCAL GOVERNMENT BODIES) BILL 1974 [No. 2]

Second Reading

Debate resumed from 5 march (vide page 45), on motion by Mr Whitlam:

That the Bill be now read a second time.

Mr SPEAKER:

– Before calling the next speaker, I should like to announce that because I believe there was a malfunction of the bells we are to make some tests during the suspension for dinner. Therefore if honourable members hear the bell ringing before 7.55 p.m., I would ask them to ignore it. It would appear that there was a malfunction due to the fact that an electrician has been working opposite the Opposition Party room.

Opposition members - Oh!

Mr SPEAKER:

– Order! In addition to that, the public address systems, including this one here, are not working due to an electrical malfunction. I intend to hold tests on these systems possibly between 6.30 and 7.30 p.m. I again ask honourable members to ignore the ringing of the bells.

Mr KILLEN:
Moreton

– I am immensely relieved to find that the Minister for Immigration (Mr Grassby) is not to be consigned to Colombia. This Bill is a far reaching one, to say the least. I raise some criticism of it, I assure the House and in particular the Prime Minister (Mr Whitlam), in no captious sense because I believe there are some fundamental mistakes that have been made. I would like in a matter of a few moments to put my arguments to the House. This Bill seeks to confer upon the Australian Parliament power to borrow on behalf of the Commonwealth for local government bodies. I want to put to the Prime Minister that there is nothing at the moment which can preclude that being done provided, of course, that one says to the States that we want you to act as the honest broker. I have always taken the view, unlike some of my friends opposite, that local government authorities are essentially the creation of the States. The States can make or break them at will. What greater sense of power does the Prime Minister require than the power to be able to snuff out of existence a local government authority as was done in the case of the Sydney City Council, and then to bring it back to life as was done in the case of the Sydney City Council. For this Parliament to say: ‘Well, we want to intrude directly into this area’, seems to me to be a most unsatisfying approach. But I put that to one side.

What I want to put to the Prime Minister is this: The borrowing power of the Commonwealth is entrenched in section 105 a of the

Constitution. Here the proposal is to put the words ‘the borrowing of money by the Commonwealth for local government bodies’ not in relation to section 105a of the Constitution but rather with respect to section 51 of the Constitution, which is in genera] terms the plenary or the fountainhead of most of the powers of this Parliament. Section 51 of the Constitution commences with the words:

The Parliament shall, subject to this Constitution . . .

So the effect of that is that every law which is made must observe, for example, section 92 of the Constitution. The other provisions outside cannot be infringed. But this is not so with section 105a. This is not to be read subject to the Constitution; this power stands on its own - completely on its own.

What is to be the effect if, for example, pursuant to this power the Commonwealth borrows money on behalf of a local government and lends it on such terms and conditions as it may think fit, and it does in fact breach, say, section 92 of the Constitution? You would then find yourself trammelled to that extent. I would like to know as a matter of drafting - and I have the utmost admiration and respect for the professional officers in the Attorney-General’s Department who serve the Government and who served previous governments - why pick on section 51 for the purpose of putting in this provision? Why not put it in with respect to section 105a?

The second criticism that I would like to make is: Why the necessity to put the second provision which relates to the grants provision set out in section 96a. If the Parliament has power to give assistance to the States would not the term ‘local government’ fall within the general ambit of the States? They are the criticisms which I have to make. I regret that the second reading debate will be concluded in three or four minutes time, but this is not a design of my making. I would be interested to hear from the honourable gentleman on those points.

Mr WHITLAM:
Prime Minister · Werriwa · ALP

– The Government did try to use the provisions of section 105a inserted in the Constitution in 1929 - the marginal note describes it as ‘Agreements with respect to State debts’ - in order to make provision for borrowing on behalf of the local government bodies under the auspices of the Loan Council. I put this at the Constitutional Convention in September. I called together a Premiers Conference in October. The Premiers, if they had been unanimous, could have amended the financial agreement of 1928 to carry out this proposal. It is one which I had put in the Government’s policy speech in November 1972. The Premiers, however, were not unanimous. That being so, to carry out my election undertakings I had to sponsor a referendum.

The Constitution in section 51, listing the legislative powers of the Parliament, gives the Parliament power to make laws with respect to paragraph (iv.) - borrowing money on the public credit of the Commonwealth. The Bill we are now considering suggests that there should be another paragraph (ivA.) - the borrowing of money by the Commonwealth for local government bodies. Since the referendum was being held to facilitate borrowings on behalf of local government, it was also thought that provision should be made for financial assistance to local government bodies in the same terms as the Constitution provides by section 96 for financial assistance to the States. Therefore, the concluding clause of the Bill reproduces the provisions of section 96 concerning the States in section 96a concerning any local government body. It is true that grants can be made to local government bodies via the States. But we have found in the case of the floods, we are finding in the case of the road grants which must be legislated for this year, we found in regard to pensioner rates, health centres and day care centres, to mention some specific instances, that it is a very clumsy way of promoting the activities which the community now expects from local government instead of from the Commonwealth or State governments.

Mr SPEAKER:

– Order! The time allotted for the second reading of the Bill has expired. The question is: That the Bill be now read a second time.

Question put.

The House divided. (Mr Speaker - Hon. J. F. Cope)

AYES: 66

NOES: 52

Majority . . . . 14

AYES

NOES

Question so resolved in the affirmative.

Bill read a second time.

In Committee

Clause 1 agreed to.

Clause 2 (Legislative powers of (he Parliament).

Mr WENTWORTH:
Mackellar

– I have considerable doubts about this clause. In speaking to it I do not want to detract in any way from the doubts I have about the Bill as a whole. Let meturn my attention to the clause. It purports to insert in section 51 of the Constitution a new paragraph (ivA.). If one looks at section 51 of the

Constitution one looks first at the preamble, which says in part:

The Parliament shall, subject to this Constitution, have power to make laws ….

This Bill purports to alter section SI by inserting a new paragraph (ivA.) which reads:

The borrowing of money by the Commonwealth for local government bodies.

That can only be done subject to the rest of the Constitution. I direct the attention of the Committee to section 105a. of the Australian Constitution, which seems to me to bear very much upon the operation of the clause under discussion, Section 105a. of the Constitution is the one that was inserted by the 1929 referendum, which gave the Commonwealth certain powers to make agreements with States in regard to State debts and borrowings. The section talks about such agreements. Sub-sections (4.) and (5.) of section 105a. state: (4.) Any such agreement may be varied or rescinded by the parties thereto. (5.) Every such agreement and any such variation thereof shall be binding upon the Commonwealth and the States parties thereto notwithstanding anything contained in this Constitution or the Constitution of the several States or in any law of the Parliament of the Commonwealth or of any State.

These are very firm words and they are in the Constitution. They bind the Commonwealth. This means that in the borrowing of money, whether it be for local government or for the States, the Commonwealth is bound by the Constitution and such agreement cannot be altered except by the unanimous consent of the parties thereto. The Commonwealth cannot alter the basic agreement unilaterally. 1 am afraid that when one comes to look at the provisions of the financial agreement - I will not quote them in extenso because they are very complicated and long - one finds quite considerable restrictions placed upon the borrowing powers both of the Commonwealth and the States.

There are provisions that the total amount to be borrowed shall be divided between the Commonwealth and the States in certain proportions. The Commonwealth has a prescriptive right to take moneys for defence purposes and, I think, 20 per cent of the balance. In default of unanimous agreement, the remainder is to be divided among the States in the proportion to their past borrowings. Again it is a very complicated formula. I remember particularly the Ham v. Fullagher opinion which was given in regard to the operation of this formula. I shall not weary the House by going into the details of that opinion; but I can assure the House that it is a very binding formula which the Commonwealth cannot unilaterally override.

It may be that in this new clause we are giving to the Commonwealth power to borrow for local government, but we are not giving it power to borrow for local government outside the boundaries of the financial agreement. I am sure that it was by some drafting oversight that reference to the financial agreement was omitted. The Bill is defective. It is clumsy. It is drafted badly because the people concerned did not bother to read the details of the financial agreement. Let me remind the House that under the provisions of section 105a of the Constitution the financial agreement, which is virtually embedded in the Constitution, cannot be altered except by the unanimous consent of the parties thereto. Let me remind the House of the rather binding words of section 105a of the Constitution, which reads: (4.) Any such agreement may be varied or rescinded by the parties thereto. (5.) Every such agreement and any such variation thereof shall be binding upon the Commonwealth and the States parties thereto notwithstanding anything contained in this Constitution or the Constitution of the several States or in any law of the Parliament of the Commonwealth or of any State.

I would like to have the time to go into these matters in detail but, by reason of the quite unreasonable guillotine which the Government imposed on this Bill when it was before the House on the last occasion and is imposing upon the House on this occasion, it is not possible for me to go into these details and to explain to the Government where it is wrong and what it should do if it wants this Bill to be effective. The Government is hoist with its own petard, as the phrase goes, because even if the proposal in this referendum were passed by the electors - I do not think it will be - the provisions of the Bill would be inoperable, effectively, by the Commonwealth unless the States agreed unanimously to some variation in the financial agreement.

The financial agreement was a very tightly drawn agreement. I referred to the Ham v. Fullagher opinion. I think that opinion was given in 1932 or 1933 and it was concerned with the operations of the agreement. As my honourable and learned friend at the table would know, it is the classic authority in regard to the operations of the financial agreement.

It is a very tight agreement, as I have said, and it means that, unless there is unanimity around the table to the contrary, the moneys borrowed are to be divided between the Commonwealth and the States in given proportions. Even if the referendum were passed - I do not think it will be - nothing in section 51 of the Constitution would enable the Commonwealth to contract for extra borrowings outside the ambit of the financial agreement.

The CHAIRMAN (Mr Scholes:

– Order! The time allotted for the Committee stage of the Bill has expired.

Mr WENTWORTH:

– I am extremely sorry that this important point cannot be further developed. I am sure that the Prime Minister would have liked to have been instructed on the matter.

The CHAIRMAN:

– Order! The question is: That clause 2 be agreed to’.

The Committee divided. (The Chairman- Mr G. G. D. Scholes)

AYES: 65

NOES: 54

Majority . . . . 11

AYES

NOES

Question so resolved in the affirmative.

Clause agreed to.

Remainder of Bill - by leave - taken as a whole, and agreed to.

Bill reported without amendment; report adopted.

Third Reading

Motion (by MrDaly) - by leave - proposed:

That the Bill be now read a third time.

Mr WENTWORTH:
Mackellar

– At the Committee stage of this Bill I made certain legal points. I believe they are substantial points. I believe the Government once again this afternoon has made a boo-boo, that it has produced a Bill which, because it has not understood the legal points in the Constitution, is an inoperable Bill. I propose now to resume my seat in order to give the Prime Minister (Mr Whitlam) an opportunity before the guillotine comes down, to address himself to the legal points that I have raised. I ask him to turn his mind to that, if he would be good enough, and let me know what he thinks about the operations of section 105a of the Constitution and the Financial Agreement which is embedded in the Constitution upon the way in which this proposed new clause (ivA.) in section 51 could operate and how it would be effected. Perhaps the honourable and learned gentleman would be good enough to give the House, and particularly myself of course, the benefit of his advice on this matter.

Mr WHITLAM:
Prime Minister · Werriwa · ALP

– I did deal with this matter when it was raised in the second reading debate by my honourable friend from Moreton (Mr Killen).

I apprehend that the honourable member for Mackellar (Mr Wentworth) was not in the chamber at that time so other honourable members, I trust, will forgive me for repeating myself to the necessary extent. I should hasten to say that I am certain the parliamentary draftsmen who have evolved the forms of words in the Bill will be distinctly distressed by the honourable member for Mackellar having reflected on their capacity. I am certain that nobody else in the chamber needs to reassure the Parliamentary Counsel that we have faith in their competence and diligence.

The honourable member for Mackellar suggests that the Government should have made it possible ‘for the Commonwealth to borrow money on behalf of local government bodies by an amendment of the financial agreement which is ratified, sanctified, by section 105a of the Constitution. The Government would have been well content to amend the Financial Agreement to that effect. The Government tried to secure the necessary amendment of the Financial Agreement. Honourable members will remember - I am certain the public, aldermen and councillors throughout the nation will remember - that in November 1972 in my policy speech on behalf of the Government Party I undertook that we would seek to have a voice and a vote for local government on the Loan Council. The proposal was spelt out to entail the councillors in each State electing a person to speak and vote on their behalf on the Loan Council.

At the Constitutional Convention in September I put this proposition. The Convention was attended by representatives of local government from every State. Those representatives attended the Convention on the insistence of my Government. My Government made it plain, as I had made it plain during the election campaign, that the Constitutional Convention would be quite futile if local government was not represented at it. Accordingly, at the Convention in September I made this proposal. I did, in fact, ask leave of the Convention, and got leave of the Convention, to incorporate in its Hansard record of proceedings, the case by local government throughout Australia for representation on the Loan Council.

The following month, last October, the Premiers met with me here to discuss this proposal. I suggested, I urged, that the Financial Agreement of 1928 as subsequently amended should be further amended to pro- vide for the representation of local government in each State on the Loan Council. The Agreement could have been amended if, as the honourable member for Mackellar points out, the 7 heads of government in Australia had been unanimous. The Premiers were not unanimous. In those circumstances it was impossible to alter the Financial Agreement. It was impossible, that is, to apply section 105a which was inserted into the Constitution in 1929. Nevertheless, the Government still had its obligation to the people and to local government to carry out what it had promised in the election campaign. This can be done by amending the Constitution.

The Constitution has always had the provisions in section 51 (iv) with respect to giving this Parliament power to make laws with respect to borrowing money on the public credit of the Commonwealth. Accordingly, it seemed appropriate to insert thereafter a new paragraph (ivA.) to provide for the borrowing of money by the Commonwealth for local government bodies. Section 105a -

Mr Wentworth:

– I know time is running out, Sir. Could I just make this observation. You are not addressing your mind to the point I am making at all. The point I am making is that anything you operate under this new section will be subject itself to the provisions of the Financial Agreement. This is the point I am making.

Mr WHITLAM:

– I do not dissent from that.

Mr WENTWORTH:
MACKELLAR, NEW SOUTH WALES · LP; IND LIB from Oct 1977

– You are not addressing your mind to it.

Mr WHITLAM:

– I heard the honourable gentleman in Committee and on the third reading. I believe I comprehend the point that he has made twice. The Government tried to use the provisions of section 105a which enshrined the Financial Agreement, as amended from time to time, in the Constitution. Not all the States were prepared to co-operate in that endeavour. Accordingly, the Government is exercising its authority to sponsor an amendment to the Constitution. We believe that a new paragraph (ivA.) in section 51 entailing the borrowing of money by the Commonwealth for local government bodies is a proper companion to the existing paragraph (iv.), which has been in the Constitution since 1901 and which reads:

Borrowing money on the public credit of the Commonwealth:

There has been enough finessing on this point. The financial agreement of 1928 never mentioned local government. Amendments to it subsequently do not mention local government. There has been a gentlemen’s agreement since 1936 which first mentioned it.

Mr SPEAKER:

– Order! The time allotted for the remaining stages of the Bill has expired.

Question put:

That the Bill be now read a third time.

The House divided. (Mr Speaker- Hon. J. F. Cope)

AYES: 66

NOES: 53

Majority 13

AYES

NOES

Bill read a third time.

page 104

CONSTITUTION ALTERATION (MODE OF ALTERING THE CONSTITUTION) BILL 1974 [No. 2]

Second Reading

Debate resumed from 5 March (vide page 45), on motion by Mr Whitlam:

That the Bill be now read a second time

Mr KILLEN:
Moreton

– This Bill dramatically illustrates the principal contention of the Opposition during the course of the debate on all the Constitution Alteration Bills, namely, that insufficient time has been given to the consideration of all the implications of the Bills. One is not to be distinguished readily from the other but this one dramatically shows that that is the case. There is a considerable amount of sympathy throughout the Australian community for the basic proposal of this Bill. I do not think anyone argues, at least in any vigorous terms, about the first 2 proposals. It is the third proposal that arrests attention. At the moment an alteration to the Australian Constitution cannot be made unless 2 requirements are met. Firstly a majority of all the electors voting and secondly a majority of all the States voting must be in favour of the alteration. This proposal seeks to lay the way for a provision that if a majority of electors and three of the 6 States vote in favour that is sufficient to carry a referendum. In general terms there is a considerable amount of sympathy for that proposal and it is by no means confined to one side of politics but a genuine concern is held by many people as to how far this proposal could go. For example, could it reach out to amend the amending section 128 of the Constitution?

I suppose it would be a matter of notoriety that there are members from some States who look upon the fact that there are 10 senators from Tasmania and 10 senators from New South. Wales as a curious arrangement. I will not argue about that. If section 128 were to be altered in some radical fashion it could well mean that the whole balance of the Federal structure - I use that expression not in any narrow sense - could be grievously disturbed. No consideration has been given to this aspect of the Bill. I regret that it is a conspicuous blemish on the Minister for Services and Property (Mr Daly), who with his customary goodwill seeks to encourage and inform us all, that he has not sought to explain this to us. I would hope that the honourable gentleman could be persuaded to do so - mind you, not that he becomes an easy victim to persuasion. At least that has been my experience with him but I would like to hear from the honourable gentleman. If this Bill were carried section 128 of the Constitution could well be disturbed. My authority for that is not my own opinion on the matter. I am indebted to the views contained in an opinion by Professor Jack Richardson, whom the Prime Minister (Mr Whitlam) would know. I say with respect that I do not think this country is using his talents in the field of constitutional law as perhaps it could. In an opinion Professor Richardson said this:

I do not think there is any doubt but that the High Court would hold section 128 to be capable of amendment according to its own procedures.

In that opinion Professor Richardson referred to an opinion given by the late Mr Justice Nicholas of the Supreme Court of New South Wales. It will be recalled that he presided over the famous Nicholas Royal Commission into the Constitution. Mr Nicholas, as he then was, stated:

As to the final paragraph-

The final paragraph I am referring to here now, because of time, is in section 128 - in view of the language of the early part of the section it can hardly be questioned that that paragraph may itself be altered or eliminated so that what would be necessary to deprive a State of the rights there mentioned, would be to hold one referendum in order to alter the paragraph, and after a proper interval, a second referendum in order to alter the relevant section of the Constitution.

I say this to the Prime Minister, not in any partisan sense at all: I have found among our State colleagues on both sides of politics a very real concern as to the ramifications of this proposal. I would have preferred, if we could have had the little luxury of time, to have suggested a proposal by way of amendment that section 128 should not be tampered with as readily as it appears it could be tampered with.

Mr Speaker, I conclude by saying that this is one of the great regrets of the manner and form in which we have debated these great issues. I believe that there is ground for reform of our Constitution, but the manner in which we have gone about it-

Mr Jacobi:

– This section in particular?

Mr KILLEN:

– This’ section in particular. I would have hoped that we - I use that word in its corporate sense - could have been a little more patient about it. I think we would have made a little more progress.

Mr WHITLAM:
Prime Minister · Werriwa · ALP

– I submit that the Government has been quite patient in this matter. In fact one of the 2 proposals which this referendum Bill makes has been before the Parliament since 1958. It came from the report in that year, repeated with fuller reasons the following year, of the Joint Committee on Constitutional Review whose adviser was Professor Jack Richardson. The Government believes that it has been very patient indeed in leaving it now, 15 or 16 years later, to allow the people to vote on this proposal.

The other proposal that this referendum Bill makes is that people in the Territories - there would be now be about 140,000 electors in the Northern Territory and the Australian Capital Territory - should be allowed to vote on amendments to the Constitution. After all, they are bound by the Constitution just as are electors in the States. However, they have been denied a vote on constitutional amendments. 1 cannot say that this proposal is qf equal antiquity as the other half of the Bill, but at least it has been advanced in the Australian Capital Territory constantly since 1966 and it has been advanced in the Northern Territory in later years by, among others, the present honourable member for the Northern Territory (Mr Calder).

Those are the 2 proposals that the Bill makes. The honourable member for Moreton (Mr Killen) suggests that section 128 which it is amending could somehow be amended to reduce the number of Senators from some States - say, the smaller States. This is precluded by section 128 itself because the concluding paragraph of section 128 states:

No alteration diminishing the proportionate representation of any State in either House of the Parliament …. shall become law unless the majority of the electors voting in that State approve the proposed law.

Mr SPEAKER:

-Order! The time allotted for the second reading of the Bill has expired. The question is: “That the Bill be now read a second time’.

The House divided. (Mr Speaker- Hon. J. F. Cope)

AYES: 66

NOES: 54

Majority . . . . 12

AYES

NOES

Question so resolved in the affirmative.

Bill read a second time.

In Committee

Clause 1 agreed to.

Clause 2 (Mode of altering the Constitution).

Mr CALDER:
NORTHERN TERRITORY · CP; NCP from May 1975

– In regard to clause 2 naturally enough I would support paragraph (a) which would give the territorians the right to vote at a referen dum. If the Prime Minister (Mr Whitlam) had been really fair dinkum about giving territorians the right to vote at a referendum, he would not have had included in this clause paragraph (c) which virtually calls for the rejection of the Bill. I am certain that it will be rejected as was the proposal put at the last referendum by a solid no. So, while I am very much in favour of paragraph (a), I cannot, as I did not previously, support the Bill because of paragraph (c). If the Prime Minister is genuine and if there is to be any genuineness at all about the Australian Labor Party’s wish to give territorians the right to vote at a referendum - let us face it, it should be soparagraph (a) should not be coupled with paragraph (c). I said this when the Bill went through the House previously and I say it again.

I must, of course, register my disapproval of the Bill as a whole. I am certain that there is a way that territorians can have the right to vote at referendums without coupling that provision to something which most assuredly will ensure that the Bill is thrown out. If it comes to a referendum, the people of Australia will throw it out. But my vote, of course, will be shown as being against the Bill as a whole. I am in favour of paragraph (a) but against the rest of the Bill as it stands.

Mr WHITLAM:
Prime Minister · Werriwa · ALP

– The honourable member for the Northern Territory (Mr Calder) was one of those - not the only one and not the first one - to suggest that in referendums on matters concerning the alteration of the Constitution electors in the Territories, namely, the Northern Territory and the Capital Territory, should be given a vote. As things stand at the moment the Constitution can be altered if 2 things happen: Firstly, if there is a majority of all the electors voting in the States in favour of the alteration; secondly, if there is a majority of the electors voting in a majority of the States. It would be possible - not likely, but it would be possible - to have a majority of the electors voting in a majority of States and a majority of the electors voting in all the States in favour of an amendment of the Constitution which, however, the electors in the Territories would not support. It is possible that the electors in the Territories could have an amendment of the Constitution foisted on them which would not have been carried by a majority of all the electors in Australia because if the Territory electors had had a vote their votes would have countervailed a majority of the electors in the whole of the States.

Surely the Constitution should be altered only if a majority of all the electors in Australia are in favour of it. It is fair that electors in the Territories should have a vote on questions concerning the alteration of the Constitution since they are bound by the provisions of the Constitution whether they have a vote upon it or not. It is simple democracy that they should have a vote. The honourable member for the Northern Territory purports to support this. The last time an amendment was produced by a government of another political complexion in 1967 - the Aboriginal referendum - there were suggestions that the Constitution should be altered at the same time to give votes at referendums to electors of the Territories. The Government at that time rejected the suggestions. The suggestions had not come so much from the Northern Territory but they certainly had come throughout 1966 and 1967, when the Aboriginal referendum was imminent, from the Capital Territory. So, this is a proposition which has been about for about 7 or 8 years.

When my Government decided to sponsor these referendums we therefore decided to put a referendum on this subject. Such a referendum involves an amendment to section 1 28, the concluding section of the Constitution. If one is altering section 128, then it is reasonable enough to put other alterations which have been suggested to that section. One such alteration was suggested in 1958 by the Joint Committee on Constitutional Review and, with fuller reasons, in 1959. The recommendation of the Committee at that time to alter section 128 was supported by the 6 Labor members of the Committee, by both Australian Country Party members of the Committee and by 3 out of 4 Liberal Party members of the Committee. That is, it was overwhelmingly supported. It has been around for a long time.

When, accordingly, amendments are being proposed to section 128 it is surely high time to include the amendment which was proposed back in 1958 and 1959. The amendment proposed then was that the Constitution could be altered if, firstly, there was a majority of the electors in all the States voting in favour of it but also if there was a majority of the electors voting in half the States in favour of it. As things are at the moment, the second requirement is that there should be a majority of the voters voting in a majority of the States. This means one must have 2 States in favour for every State which is against. One needs a two to one majority. In 1958 the Joint Committee on Constitutional Review said:

  1. . 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.
The CHAIRMAN:

– Order! The time allotted for the Committee stage of this debate has expired. The question is: That clause 2 be agreed to.

Question resolved in the affirmative.

Title agreed to.

Bill reported without amendment; report adopted.

Third Reading

Motion (by Mr Daly) proposed:

That the Bill be now read a third time.

Mr KILLEN:
Moreton

– With respect, the Prime Minister (Mr Whitlam) did not quite understand one of the views I offered about amending section 128 of the Constitution. It is perfectly true, as the honourable gentleman has observed at some time past, that at present there is an entrenched provision to prevent disturbing the balance between and among the States in the way to which I have referred, but the opinion offered by the late Mr Justice Nicholas was to the effect that by 2 amendments to that section this could be accomplished. The first would be to disturb the fifth and final paragraph of section 128 and then, as he so elegantly put it, after a decent time to return with another amendment. That was my proposal. It was not put in any flippant way - not that I, for one moment, imply that the honourable gentleman thought it was put flippantly. However, I have heard expressed among our State colleagues a very genuine concern that that procedure could be followed. I fear that it is a little too late for it to be done. I suppose it will roll on inexorably to our masters, the people, and we will await the outcome to see what they have to say about it. However, this will be one argument which undoubtedly will be canvassed in the course of the discussion on the referendum proposal.

Mr WHITLAM:
Prime Minister · Werriwa · ALP

– I must confess that I had not heard the argument put before the honourable member for Moreton (Mr Killen) presented it about half an hour ago. There has been a great deal of discussion about amendments to section 128 of the Constitution. This has been my own experience from my own involvement since 1956 when I was appointed as one of the 6 Labor members of the Joint Committee on Constitutional Review. That Committee met throughout that Parliament and when the new Parliament was elected at the end of 1958 it was reconstituted. No committee of the Parliament has sat for so many days and so many hours in the day. I believe that it would be correct to say that no committee has received so much oral evidence from so many witnesses and certainly I should think that no committee has received so much written evidence; yet this suggestion was never put to the Committee. It has never been raised in subsequent years in the Parliament. I have never heard it put until today.

The honourable member calls in aid an opinion by Professor Jack Richardson, the Robert Garran Professor of Law at the Australian National University’s School of General Studies. I have the greatest respect for Professor Richardson. As I said before, he was the legal adviser to the Joint Committee on Constitutional Review and was the principal author of its report. He certainly never put this point of view during the days, months and years when we were working together. I must say, with respect, that my own opinion, for what it is worth, would be different. The concluding paragraph of section 128 of the Constitution states:

No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.

I believe there can be no doubt that a proposal in a referendum to eliminate that paragraph would be an alteration affecting the provisions of the Constitution in relation to those matters of ‘proportionate representation of any State in either House of the Parliament or the minimum number of representatives of a State in the House of Representatives or increasing, diminishing or otherwise altering the limits of the State’.

Section 128 obviously is not something apart from the Constitution; it is part of the Con stitution. If one is to alter section 128 one must follow the provisions of the Constitution in general. I agree that the paragraph which I read out could be taken out of the Constitution if a majority of the electors voting in each State approved that excision, but I think the simple meaning of that paragraph is that it could notbe taken out unless a majority of the electors in each State approved of the proposal to take it out. For this reason, of course, it is constantly pointed out - and nobody disputes it - that if the Senate is to be abolished the proposal to abolish it must be approved by a majority of the electors voting in each State. It is possible to abolish the Senate if every State votes in favour of doing so, but the Senate cannot be abolished in the usual way that the Constitution can be amended, namely, by just getting a majority of electors overall in Australia plus a majority of electors in a majority of the States. One must get a majority in every State because every State is represented in the Senate and the representation of any State in the Senate cannot be altered without the approval of the majority of the electors in that State.

The honourable gentleman’s proposal is a complete novelty, I am sure, to everyone in the House. I do not believe it is valid. I am quite firm in my view that the paragraph I read out could not be taken out unless a majority of the electors in every State approved of it being taken out. I must say, with all respect, that I think this is just one of those attempts to confuse the issue. The reasons for the alteration to section 128 which are being put are ones which have been urged, in one respect, since 1958 in a written report - certainly in evidence which was given during 1956 and 1957 as well as 1958 - and in the other respect constantly in the Australian Capital Territory since 1966 and in the Northern Territory in more recent years. The proposed alteration to section 128 is thoroughly reasonable. It has been supported over the years by people in every part of Australia and from all political parties. I realise that it seems to be obligatory on various people to obscure the issues, but our Constitution is the most inflexible, the most rigid, in the world. It is altered very much more rarely or infrequently than other constitutions including, of course, in particular the constitutions of federal systems. The proposals that we have made do not involve the omission of the paragraph which the honourable gentleman quotes.

The propositions are twofold. One is that people in the Australian Capital Territory and the Northern Territory should also be able to vote on amendments of the Constitution; they should be able to vote in referendums to alter the Constitution. Their votes ought to be counted in determining whether there is a majority of the electors voting in the whole of Australia in favour of the referendum. The other proposal is that there should be required not a majority of electors voting in a majority of the States but a majority of the electors voting in not less than half the States. These are both very reasonable propositions. They would enable the will of the majority to prevail. They would not require a two-thirds majority of States, as the Constitution has required up to now.

I will illustrate what can happen. In 1946 three referendums were put at the same time as the elections for both Houses in that year. Each of those 3 referendums was supported by a majority of the electors voting in Australia. Only one of them, however, the social services referendum, was supported by a majority of the electors voting in a majority of the States. There was a majority of electors voting in only half the States, in 3 States, in favour of the other 2 referendums - the one on marketing powers and the one on industrial relations. If there had been in the Constitution the provision which is now sought, then for the last 28 years this Parliament would have been able to make uniform laws in Australia for marketing and for industrial relations. referendums to be carried, despite the fact that the majority of the Australian electors wanted them to be carried.

I was quoting - and I apprehend that I still have time to make the quotation - what the Constitutional Review Committee said in 1958. It said: 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 onehalf of the number of States.

In its 1959 report the Committee said:

  1. . For every State in which there is an adverse vote
Mr SPEAKER:

-Order! The time allotted for the remaining stages of the Bill has expired.

Question put -

That the Bill be now read a third time.

The House divided. (Mr Speaker- Hon. J. F. Cope)

AYES: 66

NOES: 53

Majority 13

There can be no doubt that whatever government the people had elected in the intervening House of Representatives elections, it could have sponsored better laws, it could have performed better administration in those 2 vital areas of marketing and industrial relations than any government has been able to do in those years. That applies not only to my own Government; it also applies to the Liberal-Country Party governments which preceded it over the previous 23 years. The Menzies, Holt, Gorton and McMahon Governments would certainly have given better administration to this country and they could certainly have sponsored better legislation in this Parliament if the referendums of 1946 had been carried in all 3 cases. A majority of the electors in Australia wanted the Constitution to be altered to permit the Australian Parliament to pass laws in all 3 areas - social services, marketing and industrial relations. But section 128 of the Constitution was too rigid to allow 2 of those

AYES

NOES

Bill read a third time.

Sitting suspended from 6.21 to 8 p.m.

page 110

CUSTOMS TARIFF PROPOSALS

Dr J F CAIRNS:
Minister for Overseas Trade · Lalor · ALP

– I move:

Customs Tariff Proposals No. 1 (1974)

Customs Tariff Proposals No. 2 (1974)

Customs Tariff Proposals No. 3 (1974)

Customs Tariff Proposals No. 4 (1974)

Customs Tariff Proposals No. 5 (1974)

The customs tariff proposals I have just tabled relate to proposed amendments to the Customs Tariff 1966-1973. Proposals Nos 1, 2, 3 and 4 (1974) formally place before Parliament, as required by law, tariff changes introduced by Gazette notices on 14 December 1973, 1 January 1974, 4 January 1974 and 1 February 1974. These changes arise from the Government’s adoption of recommendations by the Tariff Board in reports on agricultural machinery etc. lawn sprinklers, domestic appliances, heating and cooling equipment etc. and products of the printing industry.

In the report on agricultural machinery etc.; lawn sprinklers the Board recommended a rate of 35 per cent on garden or field spraying machines and appliances for spraying or dispersing pesticides or herbicides. For all other goods under reference including rotary cultivators of various kinds and agricultural wheeled tractors having a power not exceeding 7.46 kW, the Board recommended a rate of 30 per cent. The Government accepted the Board’s recommendations but as the report was received prior to 19 July 1973 the duties are subject to the provisions of the 25 per cent tariff cuts.

In regard to domestic appliances, heating and cooling equipment, etc, the Tariff Board recommended a duty rate of 25 per cent for most of the goods under reference. However, a rate of 35 per cent was recommended for certain portable appliances, for example, mixers, blenders, fry pans, toasters, irons and kettles. A rate of 20 per cent was recommended for certain water heating, space heating, refrigeration and air conditioning equipment.

The Government decided not to accept the precise recommendations of the Tariff Board in respect of a suggested deferral of action for 2 years on certain recommendations which involved duty reductions. Instead, it has decided to -phase-in the duty reductions over the 2-year period, beginning with an immediate reduction and further reductions in 12 months and 2 years hence. This was to enable firms to be subjected to a more gradual increase in competitive pressures and encourage them to undertake any necessary reorganisation at an early date.

On products of the printing industry the Tariff Board recommended a rate of 25 per cent for Australian street directories, road maps and time tables; greeting, condolence, invitation cards and the like; picture post cards; and printed forms, tickets and prospectuses. For melamineware transfers, fine art reproductions and scripture cards, the Board recommended minimum rates. For other goods, including calendars, a rate of 35 per cent was recommended. The Government has accepted the Board’s recommendations.

The changes in Proposals No. 2 (1974) arise from the Government’s decision to provide better opportunities for developing countries to export to Australia. The revised and expanded system of tariff preferences for imports from developing countries was introduced on 1 January 1974. Generally, the new preferential rates are 10 percentage points ad valorem below the relevant general tariff rates.

Proposals No. 5 (1974) implement changes arising from the Government’s acceptance of recommendations in the Tariff Board’s report on earthmoving construction and materials handling equipment, etc. The changes will operate from tomorrow.

The Board recommended a rate of 40 per cent on loaders and unloaders of the selfpropelling kind and on the majority of loaders and backhoes produced in Australia, having a working weight of not more than SO tonnes. This rate, however, will not apply to shiploaders and ore stackers having a working weight of not more than SO tonnes, for which a rate of 30 per cent was recommended.

A rate of 35 per cent was recommended on certain mobile cranes (other than of the crawler type) and also on cranes designed for mounting as mobile cranes, on hydraulic hoists for lifting motor vehicles and on lifting devices for tipping lorries. With the exception of shiploaders and ore stackers and other goods having a working weight in excess of 50 tonnes, for which the Board recommended a rate of 20 per cent, the Board generally recommended an industry rate of 30 per cent for the balance of goods under reference.

However, in the case of engine propelled fork lift trucks, the Board recommended a rate of 30 per cent, or, if higher, $1,000 each, with the proviso that the alternate specific rate be reduced to $800 after 3 years and be removed after a further 2 years. Furthermore, while the Board included lifting, handling, loading and unloading equipment specially designed for use in the mining or metallurgical industries in its recommendation for the industry rate of 30 per cent, because of a General Agreement on Tariffs and Trade commitment entered into by Australia not to charge duties in excess of 15 per cent on such goods, the Government has decided to implement a duty of 15 per cent.

Although the Tariff Board’s report was signed after the Government’s announcement on the 25 per cent tariff cuts the duties referred to in the report are those applying before the reduction. Consequently, although the Board’s recommended rates are in some cases lower than the rates applying before the 25 per cent tariff cuts, when compared with the rates actually operating since the tariff cuts the rates on some products will now have been increased.

Proposals No. 5 also include 2 changes of an administrative nature. In converting the tariff to metric terms, the head-weight of hammers for tariff classification purposes was simplified from 4 pounds to 2 kilograms. This has affected the tariff rates on certain goods and the converted weight is being corrected to 1.8 kilograms.

Action is also being taken to make 1, 1, 1-trichloroethane dutiable at the same rates as trichloroethylene. 1, 1, 1-trichloroethane is a substitute for the latter chemical in vapour degreasing applications. When imported for other applications 1, 1, 1-trichloroethane will be admitted free of duty under by-law.

Dr J F CAIRNS:
ALP

– I am sure you will be able to find a very good use for it yourself. Where appropriate, in implementing the changes included in these Tariff Proposals, adjustments arising from international commitments have been made. A comprehensive summary of the changes and the duty rates is being circulated to honourable members. I commend the Proposals.

Debate (on motion by Mr Street) adjourned.

page 111

TARIFF BOARD

Reports on Items

Dr J F CAIRNS:
Minister for Overseas Trade · Lalor · ALP

– I present the following reports by the Tariff Board:

Agricultural machinery, etc.; lawn sprinklers; domestic appliances, heating and cooling equipment, etc.; earthmoving, construction and materials handling equipment, etc.; fibreboard containers, paper and textile bags; film processing industry; advertising film (value for duty); products of the printing industry; and textile bags.

I present also the following reports by the Tariff Board which do not call for any legislative action:

Acrylic polymers and copolymers (Dumping and Subsidies Act); hydraulic cranes (Dumping and Subsidies Act); petrol (Dumping and Subsidies Act); and tyres and tyre cases size 29.5 inch x 29 inch (by-law).

Ordered that the reports be printed.

page 111

DIVISION BELLS

Mr SPEAKER:

– In regard to the ringing of the division bells, I have to inform the House that the bells system and the sandglass have been checked and they are functioning normally. A check, however, has been made by the Principal Parliamentary Reporter of the tape recording of the relevant period this afternoon and from this it appears that for some inexplicable reason the time which elapsed from when I ordered the ringing of the bells until I subsequently ordered the doors to be locked was approximately one minute 26 seconds. This confirms the view expressed to me by several members that the bells rang for less than 2 minutes and that this accounted for some members missing the division.

Mr FOX:
Henty

– Mr Speaker, I crave your indulgence to express a point of view on this matter, particularly in view of the ‘fact that a number of Opposition members also missed this division. First of all, the blue sheet which was circulated before lunch today set out very clearly the times at which the votes were to be taken. So I believe there was no excuse for any member, from either the Government side or the Opposition side, not being here for the vote. Secondly, I point out that Government members in particular knew that they had to have an absolute majority - 63 members - in the House in order to carry the Bills; so there was less excuse for their not being present. Thirdly, I point to the voting figures in the division in question, which were 57 votes for the Government and 51 votes for the Opposition - indicating that in view of the fact that the Government had 67 members in attendance or, allowing for yourself Mr Speaker, 66 votes, 9 Government members missed the division hut only 3 Opposition members missed it, as we had 3 members away due to their own illness or illness in the family and our Leader, the right honourable member for Bruce (Mr Snedden), did not vote at any time today. So 3 Opposition members missed the division and 9 Government supporters missed it. This matter ought to be noted because I think it is very disproportionate.

Mr SPEAKER:

– In reply to the comments made by the honourable member for Henty (Mr Fox), let me say that I think it would be accepted by all members of Parliament that, irrespective of what time a ballot is to take place, a member is entitled to 2 minutes grace between the ringing of the bells and the time the doors are locked. On this occasion, on the facts presented by the Principal Parliamentary Reporter, Mr Bridgman, the evidence as to the time for which the bells rang is, in my opinion, irrefutable. I repeat what I said in my statement: The time which elapsed between the time I ordered the ringing of the bells when I ordered the closing of the doors was one minute 26 seconds.

page 112

CONSTITUTION ALTERATION (INTER-CHANGE OF POWERS) BILL 1974

Second Reading

Debate resumed from 5 March (vide page 46), on motion by Mr Whitlam:

That the Bill be now read a second time.

Mr KILLEN:
Moreton

– This is a Bill for an Act to alter the Australian Con.sitution, and the second reading speech on it was made by the Prime Minister (Mr Whitlam) a little more than 24 hours ago. I mention that not by way of dull complaint but merely to put on the record the approach of the Government to constitutional review. For the national Parliament to be called upon to consider a Bill for an Act to alter the Australian Constitution within 24 hours of its introduction, I strongly suggest, would have amazed those who drew up the Australian Constitution. Those who yet maintain sovereignty over us - that is to say, the electors of the country - must be baffled by the procedure. It is not as though it is an everyday occurrence. This Bill is one of 40 or 50 Bills relating to referenda which have been introduced during the whole course of Federation, the Australian nation having been founded by dint of an Act of the Imperial Parliament in 1900. Here is this Bill to alter the Australian Constitution and we are given 24 hours notice. That is the first point 1 want to make to the House and, I hope, to the country. It shows a curious, almost a mischievous, almost a reckless approach to the whole problem of constitutional reform. I make the charge against the Government that introducing a Bill for an Act for a referendum and giving the Opposition 24 hours notice must be described in appropriate terms. The only appropriate terms that seem available to me are that it is a thorough-going disgrace.

The Minister for Labour (Mr Clyde Cameron) is sitting on this side of the House and trying to stir up goodwill - a role for which he is peculiarly ill-fitted. The only thing he has been able to chalk up is a remarkable record of ineptitude as Minister for Labour. I will be able to come to him, I hope, in the course of the next month or two, and when I do he will know that the brand has been put on him.

Mr SPEAKER:

– In the meantime, will you come to me?

Mr KILLEN:

– I will, Mr Speaker. The charge is - to use language which has been used recently - irrefutable. I refer to the 24 hours notice. I invite the Minister for Secondary Industry (Mr Enderby), who is sitting at the table, to point to any other occasion in the whole history of this nation and of this Parliament when only 24 hours notice has been given for an Opposition or, putting partisan considerations to one side, for a Parliament to consider the implications of a Bill relating to a referendum. Let me read the title of the Bill; I may be doing a public service to members of the Government Party. I am encouraged to take the view that there is a measure of slothfulness in their approach to matters of constitutional review. The title of the Bill is:

A Bill for an Act to alter the Constitution with respect to the Inter-change of Powers between the Commonwealth Parliament and the State Parliaments.

At first glance that may be regarded as completely innocuous. There is no occasion for any person to be aroused to any sense of fuss or to any sense of indignation until, of course, one starts to look at the Bill and, more particularly, when one looks at the speech that accompanied the Bill. The speech was delivered not by some nondescript private member of the Parliament, such as myself, but by the Prime Minister of the nation. So the Parliament should look carefully at what was said and what is in the Bill. It may seem a rather schoolmasterly performance - I hope I will be excused for being involved in it - to observe that the powers of this Parliament are to be found principally in one section of the Constitution, that is, in section 51. All of the powers of the Parliament are spelt out there, including a power which reads to this effect:

Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:

So the various placitums in this section provide the power to legislate with respect to trade and commerce, taxation, quarantine, fisheries and so forth, and include this power of the Parliament of a State to make a reference. This, I suggest, should be acknowledged, if for no other reason than that this is a source of the legislative power of the Parliament. This power conferred by placitum (xxxvii) remains a potential power. If the Parliament of a State refers a power to this Parliament then this Parliament may legislate with respect to it - otherwise it cannot. It is not as though this power has been frequently used in the past. I venture the view that it is not a power which, as of this moment, may be likely to appear as one which will be used frequently in the future. For myself, I would offer the view that probably it will not be regarded as one which will carry heavy traffic. Nevertheless, we must ensure that the bitumen has been properly laid and that there are no rough edges on the road. That is what I want to look at this evening because, as I see it, the rough edges are there and as of now remarkably little effort is being made by those in attendance and those upon whom the responsibility falls to ensure that they will be attended to.

Probably the most conspicuous example of an attempt to use this reference power came in 1942 when there was a debate in this chamber. That great enigmatic character of Australian politics and history, the late Dr Evatt, was in charge of a Bill seeking to secure from the 6 State parliaments a reference pursuant to this very sub-section or, if you like, placitum of the Constitution. He sought reference by the 6 State parliaments with respect to 14 matters ranging from family allowances, air transport, uniformity of railway gauge, organised marketing of commodities, uniform company taxation, uniform company law - name it and it is virtually to be found there. To look at those in attendance at this convention in 1942 is to look back on a very colourful and picturesque period of those who served the Australian nation at one time or another.

It is also interesting to look back on the speech made at that convention by one who was not of my political persuasion but who, I am bound to say, is a man for whom I have always had the utmost affection and admiration. I am glad to say that he is still alive today. His name was McKell. He was the Premier of New South Wales and today he is the very distinguished former Governor-General of this country, Sir William McKell. I recall him with affection and I recall with affection also the occasion on which I last saw him. It was in Sydney when the Prime Minister of this country tendered a reception for the delegates to the Australian Constitutional Convention. Sir William McKell was there, spry, energetic, alert and with all his customary vigor of mind, and he is well into his 80s. But it was in this chamber when dealing with a proposed reference of powers to be made by the States to the Commonwealth that Sir William observed:

My experience during the last 18 months-

Bear in mind that this was said in 1942 when the whole of Western civilisation did not know whether or not it would be eclipsed and did not quite understand the burden that yet lay ahead to be accepted, shouldered and discharged. Sir William continued: convinces me of the need for greater co-operation between the Commonwealth and the States in dealing with matters affecting Australia.

That is what Mr McKell, as he then was, said in 1942. The powers of reference were, of course, used on a few occasions before then and have been used on a few occasions since. For example, in 1915 the State of New South Wales referred to the Commonwealth Parliament power with respect to the conduct of World War I. Victoria, circa 1920 or 1921, referred powers to the Commonwealth Parliament with respect to air navigation. Tasmania referred powers to the Commonwealth Parliament in 1952 and 1966. That is the history in summary. It cannot be regarded as a power that has been frequently used in the past. But this does not disguise the significance of the Prime Minister’s language when he introduced the Bill. The Prime Minister recently used words to this effect:

It seems to be obligatory on some people to confuse the issue.

I hesitate to say when those words were used but I am sure that the words will be recalled with a fragrance by all honourable gentlemen, and I am sure that it will be recalled that they were used fairly recently. Incidentally, I would instantly adopt the words ‘obligatory on some people to confuse the issue’ with respect to this Bill. In his second reading speech dealing with this Bill the Prime Minister said:

The Bill has been settled in consultation with the Parliamentary Counsel of the States as I foreshadowed at the Constitutional Convention. The State governments have also been kept informed of progress with the drafting. The relevant standing committee of the Australian Constitutional Convention was also given the opportunity of commenting on a draft of the Bill. The committee asked that a few matters be looked at again. The text of the Bill reflects their principal concern as to its operation. This was that there be no discrimination between States in any designation by the Commonwealth.

A person listening to that speech yesterday afternoon, or reading it today, or reading it at any time in the future, would draw one conclusion, that the States have been fully consulted and that the States have approved with no indication of hesitation and with not the slightest display of reluctance. That simply is not true. I hope that even the Minister for Labour, with his granite-like reluctance to allow the truth to flow into his being, will accept that. What the Prime Minister said yesterday about the States approving of the provisions of this Bill- agreeing to the Bill without any reluctance but almost with unbounded enthusiasm - is simply not true. I hope that is quite clear even to the Minister for Labour who brings such an unrelenting enthusiasm to everything he does, including the exercise of confusion.

What are the facts of this matter? It may be perfectly true that this Bill was considered by the Solicitors-General of the States. It may be perfectly true that this Bill was considered by the Attorneys-General of the States. But where is the evidence that this Bill has been considered by the governments of the States? This is where the Government, with respect to my friend the Minister for Secondary Industry (Mr Enderby), faces difficulty. Here is a halfhearted expression of what, in fact, took place: The Queensland Government has not considered this Bill in detail, neither has the New South Wales Government and neither has the Victorian Government. I do not know about Western Australia because I am not privy.

Mr Enderby:

– You can do better than this.

Mr KILLEN:

– It is all very fine for the honourable gentleman to say: ‘You can do better than this’. I hope the honourable gentleman will perform handsomely because he will need to do just that in order to explain away the allegations which I am making. The Prime Minister came in here with an artful collocation of words to say: ‘Oh well, the technical people have considered it. It has been considered by the Parliamentary Counsel of the States’. I do not deny that. But I invite the Minister for Secondary Industry to deny my charge that the State governments have not considered the provisions of this Bill. Where does the exhortation made by no less a Labor statesman than Sir William McKell now stand - co-operation -between the Commonwealth and the States? It is all very fine to express these wishes but it is another thing for them to be realised. The whole business of co-operation between the Commonwealth and the States becomes a sheer indulgence in frustration unless there is some evidence of active co-operation. This is the plight in which the Government finds itself.

I remind the Minister that it is only 24 hours since we had notice of this Bill. It may seem as though it is a Bill which is quite straightforward. That is not the case. It is a Bill, I submit, of extraordinary complexity. I hope to be able to show some of the complexities that exist. The Bill proposes to put into the Constitution a number of new provisions after section 108. I do not complain about where they are proposed to go, assuming that they are to be inserted. Section 108 of the Constitution is a section that I would heartily commend to the reading of many people in Australia. It deals with the position of colonies and how they become States when they enter the Federation. But that is for another day.

Under this proposal 2 new sections are to be introduced into the Constitution. I turn to the content of these 2 proposed new sections. The first proposed new section states:

The Parliament of the Commonwealth may designate -

I know it is not a matter of rapture but still it is a matter of some importance - a matter as a matter in relation to which this section is to apply and, where a matter is so designated, the powers of the Parliament of a State to make laws of the State extend, subject to this section and to any conditions applicable to the designation -

I am sure that this will become the dominant subject of conversation at Kings Cross on Saturday. As for the ladies of St Kilda, they will be in a state of fervour when they read these words. As for those who support me so generously in my own electorate, I am driven to the conclusion that for the next week or so they will be able to talk of nothing else. But what does this mean? No examples were given by the Prime Minister as to what designations were in contemplation other than one, and that is related to Commonwealth places in State territory. Is this the only thing that the honourable gentleman has in mind? Are we seriously to entertain the proposition that the whole paraphernalia of government, and the Electoral Office is to be used and $lm or thereabout is to be spent on conferring on State Parliaments a clear understanding with respect to Commonwealth places? Really and truly, if this is the case I can only describe the Government as having a Byzantine sense of extravagance. Either that, or the Government supporters regard themselves as the prodigal sons - a collection of them. This is what baffles those of us who sit on this side of the House. It has made us wonder as to why there is this wild enthusiasm to rush this legislation so indecently through the Parliament.

Even the Minister for Secondary Industry must be encouraged to accept that as being a very evenly tempered point of view. However, the legislation is being rushed indecently through this Parliament. But the legislation goes further, Mr Speaker, and I know Sir that this has received your close attention. Proposed new section 108a (3) states:

The power of the Parliament of the Commonwealth to designate a matter under this section is not limited by the provisions of this Constitution -

What does that mean? No explanation was given by the Prime Minister. This is to become - if we are to take any heed of what was said by the Prime Minister yesterday - a fairly constant business. What is meant by this provision which says ‘is not limited by the provisions of this Constitution’? With things as they stand today, if this Parliament legislates with respect to any matter it is subject to all of the provisions in the Constitution. It cannot ignore section 92 of the Constitution. That is the classic illustration. It cannot ignore those sections of the Constitution which are barriers or protection against governmental interference. The Constitution is the compact and cannot be treated as anything else. But the Prime Minister does not even bother to give the Parliament any indication as to why this provision is included in the Bill.

Neither did he bother yesterday afternoon to give any indication to the House as to what Parliament conceivably would place on the sort of condition this Parliament or any reference by this Parliament of any power to the States. Why? It is not as though the honourable gentleman is inarticulate. It is not as though he is, for the occasion of Lent, entering into any bond of silence on the matter. This question calls for the clearest exposition and none came from the honourable gentleman. As a consequence what has happened? We are suspicious and we are entitled to be suspicious. We are at least entitled to be curious and wondering as to why no explanation was given.

Another reference may possibly loom as one which this Parliament might make to a State. That followed the Hamersley iron ore case. As my friend the honourable and learned member for Stirling (Mr Viner) would recall, in the Hamersley case in 1970 or 1971 Western Australia imposed a receipt duty that was held by the High Court to be an excise.

It surprised a number of people but, accepting as we do the rule of the law, it was accepted and it is a political reality. I can understand that that may conceivably be another reference to be made, but why was no explanation given by the Prime Minister yesterday afternoon?

This matter was splendidly explained, if I may say so with respect, by the former Chief Justice of the High Court of Australia, the late Sir John Latham, in one of the classic cases on this very point, Graham v. Paterson. I am dealing now with the second reference where the States refer matters to the Commonwealth. The States understandably have been concerned as to whether they can make a reference subject to conditions, Sir John dealt with this as far back as 1950 when he was the Chief Justice of the High Court of Australia. His views were agreed to by 2 other judges. Subject to reading the case, I think they were Williams and Fullagar. The point is simply that if a reference is made by a State to the Commonwealth, it is not an exclusive power; it remains a concurrent power. Subject to the provisions relating to paramountcy the Commonwealth can assume the field but it does not extinguish the power of a State to legislate in this field. But in the second proposed new section of the Constitution this is not clear. Paragraph (e) of proposed new section 108b - I am sorry to be confused in reciting it but that is the only method by which I can do it - states that a reference may be made subject to conditions, including conditions as to the laws that may be made by virtue of reference or designation or as to the operation of those laws.

The Prime Minister again gave no indication as to whether a reference could be made by the States which would exclude the operation of section 109. I hope the Minister for Secondary Industry will turn his attention to that fact, because we will be interested to know what implications are involved. If a State makes a reference to exclude all possible resort to the paramountcy section of the Australian Constitution, I invite the honourable gentleman to agree with me that a great degree of confusion could occur.

Mr Enderby:

– -Would it matter?

Mr KILLEN:

– It could matter, because as I read the Graham v. Paterson and the ANA cases I come to the conclusion that it is not possible for an irrevocable reference to be made, but a reference may be so made which, if used in a particular fashion, would make it virtually impossible to refer the matter back to the State, and that is the point.

Mr Enderby:

– Sir John Latham did not say that.

Mr KILLEN:

– If the Minister reads the full report of the ANA case - read it again, my dear boy - he may come to another conclusion. I am sorry to have been driven to explain the Opposition’s attitude to this Bill at such length. No other alternative was available to us. Therefore on behalf of the Opposition I move:

That all words after ‘That’ be omitted with a view to inserting the following words in place thereof: the Bill be deferred until after consideration has been given to its proposals by all State governments and by the Australian Constitutional Convention’.

This is the proposal presently before the Standing Committee of the Australian Constitutional Convention. It is a proposal which, I regret to say, has been given scant consideration. It is a proposal deserving of deep consideration and further it is a proposal deserving of consideration by all State parliaments. I come back to the words of Sir William McKell: If there is to be any prospect for genuine constitutional review in this country, there must be co-operation between the Commonwealth and the States. Any unilateral essay by the Commonwealth must, I believe, face the peril of being defeated. Far better, I submit, for the spirit of co-operation to be involved in the conduct of our affairs. It is in that sense and in that spirit that I have moved the amendment on behalf of the Opposition.

Mr SPEAKER:

-Is the amendment seconded?

Mr Cooke:

– I second it.

Mr SPEAKER:

-Is the honourable member reserving his right to speak?

Mr Cooke:

– Yes.

Mr ENDERBY:
Minister for Secondary Industry · Australian Capital Territory · ALP

– One always listens with great attention to the honourable member for Moreton (Mr Killen). He is a good friend of every member of this House. I apologise to him for the interjection I made early in his speech when I said: You can do better, Jim’. I listened intently, waiting for a contribution on what is the defect in the Australian constitutional law today that this measure is trying to overcome, and I heard not one useful suggestion put forward by him. That is what I had in mind when, perhaps unfortunately, I said: ‘You can do better, Jim’. There is a saying attributed to the iron chancellor from Prussia, Bismarck. When he was first thinking of going into politics he sought guidance from someone and took speaking lessons. He reported back to his tutor in a little time that he was making considerable progress; he could now speak for 20 minutes and say nothing. I think honourable members might well reflect on that. I suggest that that is really what the honourable member for Moreton was measuring up to. I say that with great respect to him because we are good friends.

This measure seeks to introduce some flexibility into Australian constitutional reform. We all know what federalism is. I do not seek to canvass the merits and the arguments for and against it here tonight. It would be improper to do so. But some of the futures which the Constitution has and which are accepted by any writer on the subject are rigidity and legalism, and no one familiar with the Australian constitutional system would deny that these are the most outstanding features of our Constitution. Whether it works for the States or the Commonwealth, or whether it reflects centralism, federalism or regionalism, one thing is sure: It is rigid and very difficult to change. It was made seventy or eighty years ago to suit conditions of a different age. It is legalistic; it is in the hands of lawyers.

This measure seeks to enable negotiating positions to be taken between the juristic people or sections of Australia, the States and the Australian Government to enter into agreements. It honours a promise made by the Prime Minister at the Constitutional Convention that convened in Sydney in September last year. The honourable member for Moreton talked of haste and things being done in 24 hours, but I remind him of the meeting in Kirribilli House which sparked it all off. He was not there and neither was I, but the newspapers were full of it. With the exception of one State Premier, the Premier of Queensland, who out of pique or something or other refused to come, every State Premier went to Kirribilli House with the Prime Minister and they came to an agreement which was written up at the time. I do not say that I have all the newspaper reports about it here but I have some of them. This measure is honouring an undertaking that the Prime Minister gave at the opening session of the Constitutional Convention in September last year. It is of interest to go through some of the newspapers I have. The ‘Advertiser’ headlined it ‘Fire Real Initiative from the Convention’. A ‘Canberra Times’ headline stated: ‘Agreement by States on Change’. John Jost wrote in the ‘Australian’: ‘Premiers and PM Find a Way Out’. The ‘Canberra Times’ again said ‘Exchange on Powers’. So they go on. There was an agreement between the Premiers and it was followed up. If one is looking to see where goodwill comes from, one will find that it comes from this Government.

On 12 September 1973 the Prime Minister wrote to the Premiers following that undertaking, advising that the Attorney-General would be in touch with the State Attorneys as to arrangements for draftsmen to consider the Bill. On 2 November the first draft was sent to the State draftsmen by the First Parliamentary Counsel. On 19 November - we are now in March - the draft Bill was considered at a meeting of the Commonwealth and State draftsmen. Presumably the State draftsmen were acting on their instructions, as the Commonwealth draftsmen were acting on our instructions. (Quorum formed.)

Mr Deputy Speaker, I was giving details of the various steps that have been taken to consult with the States on this matter through their representatives on the Constitutional Convention Committee. On 20 November a letter was received from Mr Punch, the Minister for Works in New South Wales and chairman of Committee B of the Constitutional Convention, asking for copies of the Bill for consideration by the Committee as soon as possible. The Prime Minister replied advising that discussions between the parliamentary draftsmen were still continuing but that he would meet the request as soon as possible. On 30 January 1974 there was a letter from the Attorney-General to State Attorneys-General forwarding revised drafts.

Mr DEPUTY SPEAKER (Mr Lucock)Order! A quorum was called, which took up some of the Minister’s time. I suggest that the House pay him the courtesy of not engaging in conversation and further interruption.

Mr ENDERBY:

– That was followed by a letter from the First Parliamentary Counsel to State draftsmen forwarding revised drafts.

Mr Street:

– The honourable member for Moreton does not contest this.

Mr ENDERBY:

– It does not matter. Let me make the point. On 31 January a letter was sent from the First Parliamentary Counsel to the Chief Executive Officer of the Convention, again forwarding copies of revised drafts. Similar steps were taken on 13 February. I will cut this short, Mr Deputy Speaker. More steps of a similar kind were taken on 14 February in relation to revised drafts. All this indicates that agreement was being reached progressively. On 18 and 19 February draft Bills were considered by the meeting of Commonwealth and State draftsmen. The same thing happened on 20 and 22 February. On 25 February there was the first suggestion from Mr Punch that it might be inappropriate for the referendum to coincide with the Senate election. The underlying point here is this: As 1 said at the outset, we have in Australia an excessively rigid Constitution. We have a Constitution that is excessively legalistic. Attempts to change it by referendum invariably fail.

Mr Street:

– Not invariably.

Mr ENDERBY:

– In most cases. The whole history of Australia is that they fail. Whether it is because of conservatism by Australians and fear of change or whether it is because of the adversary system that exists in this House, I do not know. I suspect that that has a lot to do with it. Whatever Governments put up, whether there is merit in it or not, it invariably meets opposition from the Opposition. I say that to the honourable gentlemen sitting opposite me with respect. Once anyone is heard to say anything at all against a proposal for constitutional change it invariably fails.

The only instrument of change in the whole country - notwithstanding that 70-odd years have passed since Federation - has been our High Court. That again is legalistic. The most recent example of it being able to help us was the concrete pipes case in 1971. There was a gap of 62 years since the Huddart Parker case in 1909. The Court expressed a view on what laws could be made in respect of corporations. It took more than 60 years for the High Court to be able to change it. That is not good enough. With the rate of change that is occurring in the world today, constitutional change must keep up. If referendums will not do it and if the High Court, although more successful, cannot do it, another means has to be found. I argue that it must be found in what I will call cooperative federalism. That is an expression which the Prime Minister has used on many occasions. We on this side are often accused of being centralists.

Mr Giles:

– You are.

Mr ENDERBY:

– Honourable members opposite say that we are. Let us consider this measure. If the people carry it, this measure will take power away from us and give it to the States. If this measure succeeds we will be giving power to the States. I ask honourable members opposite: Where is their centralism allegation then? What I am trying to point out is that the argument is fought out in shibboleths, trite sayings, slogans and dogma - all too often party dogma. Honourable members opposite accuse us of being centralists. We have said: ‘Let us reach common ground. The Constitution is bad. We all agree that it is bad’. The States will not give us power - we know that - because they want it for themselves. It is an institutionalised system. It goes against human nature for people having power to want to give it up. We recognise that. We are saying: ‘Let us have the power to give something to them and see whether we can reduce the opposition that exists at the moment to their giving power, where it is appropriate, to us so that we can move towards a better system’. That surely is co-operative federalism. At the moment it is all one way, and it does not work.

The State Premiers recognised the merit of that when they met at Kirribilli House back in September. The only gentleman who was not prepared to go there, because he seemed to be suffering from a fit of pique, was the Premier of Queensland. All the others recognised it and openly declared their support for the proposition. It was something that was negotiable. It was something about which civilised men - Australians who have the welfare of Australia at heart - could sit down and say: ‘Here is something we can give to you because it is proper and correct. Here is something you can give to us because it is proper and correct’. That is an additional means of change. In other words, it represents flexibility. It gets rid of the rigidity and the legalism - I am a lawyer - that are inherent in the system at the moment.

Here I have to be political, but I do not mean it in any base sense. I hold very strongly the view that arguments are put forward to support a point of view by using words that have nothing to do with that point of view. The honourable member for Moreton moved for deferment. He said: ‘Stand the matter over. We have not had enough time to think about it’. There it is. He is a lawyer in regular practice. He could read it in 30 seconds. It is written in the Queen’s English. It is not difficult. Heaven knows how many stages have been reached where the Australian AttorneyGeneral has co-operated with the various State Attorneys-General. The proposal has been put to Mr Punch at the Constitutional Convention. It has been backwards and forwards. Agreement has been reached. Mind you, agreement is not necessary. We do not have to have the agreement of the States. This proposal eventually will be put to the Australian people. The idea is to ask them to let us have power to give power to the States. We do not need the agreement of the States. It is courteous and obviously civilised to confer with them and reach agreement. We have done all that.

But honourable members opposite come along and say: ‘You have given us only 24 hours notice. What on earth have they been doing since September last year? They could pick up the Bill and read it in 30 seconds anyway. I must say that when such expressions as ‘give us more time’ are uttered there is an underlying reason for them because honourable members opposite do not really want the reform. All the reasons for not referring matters which have been put forward in the past such as suggestions referring to the weakness of the present constitutional system and the fact that the States are concerned about referring powers to the Commonwealth because they might not be able to get them back or to attach conditions to them, precedent or subsequent, surely are nonsense. Let honourable members opposite pick up any book on constitutional law written by any learned writer anywhere in Australia in the last 40 to 50 years such as those written by Sir John Latham. They will find that there is no reason for concern. The concern comes from politicians who sit on Liberal and Country Party seats. They express concern and cloud the issue. There is no legal doubt about the issue and never has been. Let honourable members opposite try to find their views put forward by a reputable lawyer anywhere. Again, one must look to underlying motives.

Honourable members opposite do not want change. They prefer the present system. This might sound political. It is political but not, I hope, in a base way. It is political because, basically, honourable members opposite do not want the Constitution to be changed. They know that it is so widely held to be a bad Constitution that they cannot be heard to agree with that view. So, honourable members opposite mouth all sorts of things like ‘give us more time’. How often have we heard the expression ‘give us more time’ said in this chamber? We on this side can deal with this matter. Why can honourable members opposite not do so? We had to think up the reasons for this legislation. We have to put forward the propositions and to do the constructive work yet honourable members opposite always say: Give us more time’. We can do this work and we were in Opposition for 23 years. Why can honourable members opposite not do it?

I hold strongly to the view that this matter of constitutional change is far too important a matter to be left to lawyers. If the solution is to be found is has to be found by politicians because there is a very close working relationship between law and society. Law sets the guidelines, whether it be company law, criminal law, the law dealing with securities and exchange or the law of torts. The law sets the guidelines for the conduct of the whole of society. To my way of thinking, this country has a ridiculous basic system of laws. For example, is it widely known that each of the 6 Australian Stares, for reasons of private international law, is a separate sovereign State? Those members opposite who are lawyers perhaps will remember a case of Anderson v. Eric Anderson concerning a motor car accident which took place in the Australian Capital Territory. The person who was injured decided to sue in New South Wales where the law was different to the law applying in the Australian Capital Territory. If it were held in New South Wales that there was any element of fault on the part of the injured person who was driving one car, it would have meant complete failure and that no compensation would be payable. In the Australian Capital Territory, by the laws of this Territory, such a finding would mean merely a reduction in the measure of damages. The argument went backwards and forwards. Here in Australia in, I think, 1971 or 1972 the question was: ‘What was the law to apply?’ Should they apply the law of New South Wales because the New South Wales court was considering the case or because one of the parties lived in New South Wales, or should the law of the Australian Capital Territory apply? If there had been a Victorian element in the case another complicating factor would have been introduced. If a party had sued in New South Wales he would have obtained one result and if he had sued in the Australian Capital Territory there would have been a different result.

We talk about being one nation but the situation I have just described does not help us to work towards being one nation. Yet when people like those on our side of the House come forward and say: ‘Let us try to reach agreement. Let us go to the people with a referendum. Let us hope that the High Court judges do the right thing’ - which they do, because they are Australians like the rest of us - from where does the opposition come? It comes always from the Liberal and Country Parties, for a variety of different reasons. However, they never state the real basic reason why they do not want the change. They prefer things as they are, although they are not prepared to admit it to the people. Honourable members opposite rely on confusion, doubt, clouding the issue and pitching the argument. The Deputy Leader of the Country Party (Mr Sinclair) is a past expert at it. Honourable members opposite are on a different level altogether to honourable members on this side of the chamber.

This Bill, more than anything else this Government has brought forward, nails the idea of centralism in the obscene way in which it is sometimes described by Opposition spokesmen because it seeks to have the Australian people say to the Australian Government: You can have power. You do not have to exercise it, but you can have power to give away power - power to give it to the States’. Yet honourable members opposite, using all their sophistry say: ‘Even that might be bad’. This Government has tried to say: ‘Look, we will try to reduce some of the animosity that exists with the States. Let us add a new dimension to constitutional change, beyond the High Court and the referendum process which has proved so difficult. Let us set up a system whereby people from the States and from the Australian Government can sit down together and negotiate the constitutional changes that are so badly needed’.

Mr DEPUTY SPEAKER (Mr Lucock)Order! The honourable member’s time has expired.

Mr SINCLAIR:
New England

– All power corrupts and absolute power corrupts absolutely. I feel rather ashamed for my friend and legal colleague, the Minister for Secondary Industry (Mr Enderby) because of the dis sertation which he has just given us. He gave us 3 fundamental reasons in his advocacy for the passage of this Bill. By contrast, I second and support completely the amendment that has been moved by my equal friend and far more justifiable colleague, the honourable member for Moreton (Mr Killen) and the argument that he presented to this chamber. The 3 arguments of the Minister for Secondary Industry were: Firstly, that as a result of consultation with the States, this fifth of the guillotined constitutional amendment Bills has been presented to this Parliament for urgent passage so that the Australian people can take a vote. This particular consultation with the States, of course, was set out in a recitation of events beginning with the arbitrary dictate by the Prime Minister (Mr Whitiam) at the opening of the Constitutional Convention of a range of matters which he said were going to be presented to the Australian people by way of referenda, irrespective of the Convention and the deliberations that were going to take place and irrespective of the concern of the States. It is true that this matter is one which involved the concern of the States both as to their future and present financial status and as to the way in which they might be able to receive powers referred from the Commonwealth and pass powers to the Commonwealth so that the true concept of federalism might be achieved. The Minister for Secondary Industry said: ‘Consultation with the States’. The consultation consisted only of reference to parliamentary counsel, not of waiting, seeing, understanding and listening to the requirements of the States. It was not a matter of discussion but a matter of dictating what the Commonwealth wanted having heard, but not heeded the requirements that the States presented back to the Commonwealth.

The Minister’s second argument was that the Constitutional Convention supported the presentation of this Bill. It is true that the Convention supported the general concept that there should be a reference of powers and a change to this part of section 51 of the Constitution as to the way by which there could be a reference of powers but I would query quite seriously whether the Constitutional Convention, either at its opening session or in any other way, has given support to the measure before this Parliament. Indeed, the very draft which the honourable member for Moreton has differs substantially from the draft that has been presented tonight to this

Parliament. The Minister says that it has been changed in order to accord with requests from the parliamentary counsel of the States. Has it been changed to meet the requirements of the State parliamentarians? Has it been changed in accordance with the expressed concern of members of this chamber? Of course not. The Constitutional Convention expressed general support for the introduction of a measure to permit the interchange of powers. This is a concept which this side of the House happens to support, but it does not support it just in a rash way - in a way which sees the passage of a Bill through this Parliament as the acceptance of the measure by the Australian people. It rather sees it as necessary that there be meaningful consultation, that there be the passage of a Bill and reference to the Australian people for their support of a question on the interchange of powers which is acceptable to the members of this Parliament and acceptable to the States and, therefore, can be supported at the poll. I seriously question whether in the terms of this measure it can be so accepted.

The third argument of the Minister for Secondary Industry was that he, in his own terms, is not a centralist but believes in cooperative federalism. In tones of sweet reason he suggested that the presentation of this Bill to this Parliament demonstrated how the Labor Party pursued this concept and how cooperative federalism was here thanks to the Labor Party in government. That is arrant nonsense. Co-operative federalism, as I understand it, means that one does not just lay down a precept and say: ‘Take it or leave it’. It means that one talks to the people who are concerned about the measure to see whether their views can be accommodated and translated into practice. I am concerned about the concept of this measure. I believe it is a measure which should be passed by the Australian people, but I do not believe it has any chance of being passed by its being hastened through this House in an unseemly fashion. I believe it has no chance of passage when the Constitutional Convention, either through the committee which was charged with the responsibility of inquiring into its terms or through the executive which was charged with the passage of procedures of the Convention from time to time until the next plenary session, has not given its support to it. Indeed, I see co-operative federalism being denied and I see the passage of a Bill which will change the Constitution being im- possible because of the very manner in which this Government has introduced it.

I do not believe that this Government even wants this measure to be passed. I think the very fact that it is hastening its passage through this Parliament and the fact that it is not prepared to listen to the Constitutional Convention or to the arguments of those committee members who have been examining the measure in detail or to consider the measures that have been advanced by the States indicate that the Government is not really concerned with the passage of the Bill but rather is concerned to get a package that it can present at a Senate election - a package which, I submit, is designed to confuse the electorate. One would see the Government as trying to gain support at the polls for its Labor candidates in the Senate election, not based on any premise of providing order and good government for this country but based on providing a confused understanding of where it is taking, by way of change, the Australian people and the Australian electorate. I see the changes as being ephemeral and as leading this country backwards and not ahead.

I seek very briefly to make my points in this debate. I know that many of my colleagues on this side of the Parliament wish to participate in this debate. It will not be easy for them to do so, the guillotine having already been introduced on a Bill of such considerable substance. However, I think it is important that I refer to this Parliament 2 letters both of which refute completely the statement made in this chamber tonight by the Minister for Secondary Industry. The first is a letter by the Honourable Leon Punch, Chairman of Standing Committee B of the Australian Constitutional Convention. 1 will refer to only parts of the letter. He wrote:

In pursuance of your letter of 7 December 1973, copies of the revised draft Constitution Alteration were made available by the Australian AttorneyGeneral to the Convention’s Chief Executive Officer, and by him, in turn, to the members of Standing Committee ‘B’. That Committee met in Sydney on 14 February 1974 to consider the matter.

My present purpose is to communicate to you the views of Standing Committee ‘B pursuant to the authorisation of the Convention’s Executive Committee as outlined in my letter to you of 20 November 1973.

The Standing Committee members were unanimous in generally commending the draft, and expressed the view that the proposal, if adopted, would be a highly desirable and important improvement to the Constitution.

That is a point of view which all members on this side of the House support, but it is a point of view which we do not see achievable in the light of the manner of the presentation of this Bill. The letter continued:

There are, however, some aspects to which the Committee regarded it as desirable that further consideration be given.

First, the Committee would favour the inclusion of some provision whereunder the Commonwealth Parliament might bind itself, if it saw fit in any instance, to refrain from the exercise of its legislative power in any area where it had designated that its power should be made exercisable by a State. This, it was thought, would have the effect of making the reference of powers appear truly mutual and would enhance the electoral appeal of the measure considerably. The view was expressed that the Bill, as presently drafted, could be subject to the criticism that whilst States are for practical purposes compelled to refer ‘exclusively’, the Commonwealth Parliament could be made to appear to be retaining to itself a special privilege by virtue of its opportunity to legislate so as to supersede State legislation pursuant to the designation.

In fact, that particular requirement of the Convention has not been met and I contend, therefore, that there is no longer any basis on which the Labor Government can claim that it has the support of the standing committee of the Convention, of the Convention itself or of the Parliaments of the respective States. Therefore, the whole proposal is completely impossible of passage. This lends weight to my argument that this Government does not really want to see the change introduced at all. My time is running out and I do not want to use all of it; but I refer briefly to the second point contained in Mr Punch’s letter. He wrote:

Secondly, it was suggested that consideration be given to amending the draft so that powers designated by the Commonwealth Parliament might only be made exercisable by and available to all States, and so as not to permit a designation in favour of on: or more States only, to the exclusion of others.

In the Prime Minister’s second reading speech he referred to this and accepted the principle. I understand it to be implemented in the measure before us. So at least that request of Standing Committee B has been accepted by the Government. However, the point is that the total request of the Convention Standing Committee has not been accepted and, therefore, I seriously contest the viewpoint that the Labor Party is presenting a Bill which, in the words of the Minister for Secondary Industry, is in accordance with the requirements of the Convention. If the Prime Minister is now able to elucidate this matter I will be delighted.

Secondly, and more materially, and in accordance completely with the amendment which the Opposition has moved, there is a request under the hand of Mr L. H. S.

Thompson, the Victorian Minister of Education and Chairman of the Executive Committee, and approved by the Executive Committee which is material. The letter was a request that this particular measure be deferred so that there can be not only a reconciliation of views and a final settling of the terms of the proposal to be presented to the Australian people but also a submission to the people in a more dispassionate atmosphere to ensure a reasonable prospect of its passage. I omit the first paragraph of this letter, which continues:

Members of Standing Committee ‘B’ have raised the question of the timing of the referendum and asked the Executive Committee to consider this question. All members of the Executive Committee believe that the proposed Constitution Alteration is of the utmost importance and should be given the full support of all parliaments, governments and political parties. They believe that this could best be achieved by having the proposal first considered at a full meeting of the Constitutional Convention. . . .

This is a detail that has not been referred to in this House. It has been by-passed and will not be complied with by the passage of this measure -

  1. . and by having it overwhelmingly endorsed by the Convention.

They are also of the view that the prospects of the referendum on this matter being successful will be seriously jeopardised if put to the people at the same time as other referenda presently proposed to be put at the time of the Senate elections.

It seems to be quite clear that some, if not all, of these proposals will be subjected to spirited opposition, and it is the opinion of the Executive Committee that such a situation would not be conducive to a successful referendum on the matter of references.

There is no doubt that the States through the expression of the Chairman of the Standing Committee of the Constitutional Convention and through the expression of their own concern at the urgent passage of this legislation are now casting reservations on the measure. It ill behoves this Government to present a measure saying that it has the complete support of the States when that is demonstrably not so. It ill behoves the Prime Minister to present a measure without having had that meaningful consultation - the expression of co-operative federalism which his Minister such a short time ago asserted was the premise from which the Government operates. I regard it as most unfortunate that the Government did not have the . common sense nor the will to express its point of view in such a way that the legislation could have been supported by all members of this chamber and by all the Australian people. As the proposal is now presented and as it will be submitted to the Australian people by way of referendum, it is doubtful whether the States will support it. I do not see how the members of the Opposition will be able to support it. The probability of its being passed is therefore slight.

I therefore have great pleasure in supporting the amendment which has been moved by my colleague the honourable member for Moreton. I express my profound regret that such a meaningful and purposeful change in the Constitution is unlikely to be effected simply by the desire of the Government to assert its centralist power instead of proceeding in a co-operative way and presenting to this Parliament a measure which could have been universally supported.

Mr WHITLAM:
Prime Minister · Werriwa · ALP

– Mr Deputy Speaker -

Mr DEPUTY SPEAKER (Mr Lucock:
LYNE, NEW SOUTH WALES

– Is the Prime Minister speaking to the amendment?

Mr WHITLAM:

– Yes, and opposing it. The honourable member for New England (Mr Sinclair) is doing his best to obscure and frustrate the understanding - it might be said to be the only understanding - which was reached at the Constitutional Convention last September. It is true that I made the suggestion that there should be an interchange of powers. The suggestion was accepted directly by five of the Premiers, and the Premier of Queensland reserved his opinion about it. I ask honourable gentlemen to look at the proceedings of the Convention on 6 September last. I refer to page 197. I pointed out that under the words of paragraph (xxxvii) of section 51 of the Constitution any State or States can refer matters to the Parliament of the Commonwealth. Drawing on the papers which some of the States had circulated to the Convention, I went on to state:

In respect of this paragraph New South Wales and Victoria have proposed that the reference power should be amended to remove doubts both as to power to refer for a limited term and as to power to revoke a reference. New South Wales also has suggested that the Commonwealth should be authorised to refer powers to the States. Victoria wishes to ensure that a reference may be made subject to terms and conditions.

I then said:

It would be useful to the Parliament of the Commonwealth to have the power to refer to the parliament or parliaments of any State or States any matter within the exclusive power of the Parliament of the Commonwealth.

I gave illustrations of such matters where the Commonwealth alone can legislate as things stand now and where it might be agreeable to the States as well as to the Commonwealth to have the States legislate. I proceeded:

I am pleased, therefore, to be able to inform the Convention that after the adjournment yesterday evening heads of delegations met and were able to agree on the principle of references either way. We propose that our parliamentary draftsmen should promptly confer on the terms of an amendment to the present paragraph which already permits matters to be referred by the State parliaments to the Commonwealth Parliament and on the terms of a new paragraph which would permit matters to be referred by the Commonwealth Parliament to the State parliaments. We intend that the terms of both paragraphs should make identical provisions concerning terms and conditions, duration or revocation. We hope that the Commonwealth Parliament will pass a Bill for a referendum on the companion paragraphs to be held at the time of the next federal poll.

I was supported by Sir Robert Askin, Mr Hamer, Mr Dunstan and Mr Tonkin - the Premiers of New South Wales, Victoria, South Australia and Western Australia - and by Mr Everett, the Attorney-General and delegation leader from Tasmania. Mr Bjelke-Petersen, the Premier of Queensland, did not endorse the suggestion that the other six of us had wholeheartedly made. But he did conclude:

However, we do appreciate the fact that the Prime Minister made the proposal and we look forward to being able to make a closer examination of it.

It may be, reading through the transcript as 1 have, that the original suggestion came from New South Wales. At any rate, I put in the papers which were circulated. But I made the suggestion personally to the leaders of five of the State delegations. Queensland did not accept my invitation to confer. So this was the suggestion made to the Convention on 6 September last and accepted by five of the State leaders at that time and not opposed by the other.

We moved fairly promptly. On 12 September I wrote to the Premiers advising that the Attorney-General would be in touch with State Attorneys as to arrangements for draftsmen to consider the Bill. On 2 November the first draft was sent to State draftsmen by the First Parliamentary Counsel. On 19 November the draft Bill was considered at a meeting of Commonwealth and State draftsmen. On 20 November Mr Punch, the New South Wales Minister who is Chairman of Standing Committee B of the Convention, wrote to me asking for copies of the Bill for consideration by the Committee as soon as possible. I replied advising that discussions between the parliamentary draftsmen were still continuing but I would meet the request as soon as possible. On 30 January the Attorney-General wrote to the State Attorneys forwarding the revised draft. A letter from the First Parliamentary Counsel was sent to State draftsmen forwarding the revised draft. That was on 30 January. On 31 January the First Parliamentary Counsel wrote to the chief executive officer of the Convention forwarding copies of the revised draft for consideration by Standing Committee 6. On 13 February the draft Bill was considered by the working party of Standing Committee B. On 14 February it was considered by the Standing Committee itself.

On 18 and 19 February the draft Bill was considered by the Commonwealth and State draftsmen at Wellington, New Zealand, and a revised text was produced. On 20 February copies of the revised text were handed to the Attorney-Generals of the Commonwealth and all the States at their meeting in Wellington. On 22 February the revised draft prepared by the First Parliamentary Counsel following the Wellington meeting and incorporating some further revision, particularly relating to the title and the continuation of existing laws upon renewal of a reference, was sent to my Department. On 25 February Mr Punch wrote to me. On March 1 I wrote back to Mr Punch. On 1 March I also wrote to each Premier forwarding a copy of the Bill and saying that I would be introducing it this present week. Not a single Premier has written to me objecting to the Bill proceeding. In all the intervening months since we agreed - the Premiers and I on 6 September last - none of them has suggested that this Bill should not go ahead. It will be seen that all the Attorneys collaborated promptly and fully, and all the parliamentary counsel, Commonwealth and State, collaborated promptly, repeatedly and fully on producing the draft of this Bill.

The Bill carries out a very reasonable proposal. In the view of both the Commonwealth and the States there are advantages for this. Mr Punch, on behalf of Standing Committee B, quotes the views of that Committee in favour of the Bill. He said that the Standing Committee members were unanimous in generally commending the draft and expressed the view that the proposals, if adopted, would be a highly desirable and important improvement to the Constitution. They made a couple of suggestions. We accepted one. We gave the reasons why we could not accept the other. Those views - the acceptance and the rejection - were the considered view of all the draftsmen and all the Attorneys. It is rather belated foi the Deputy Leader of the Country Party, or the National Party - whatever it is - to say that we are in any way failing to collaborate with the States.

The one agreement that came out of the Convention has been the subject of very full consideration by the draftsmen and the Attorneys of the 7 governments in Australia. There has never been any objection by the head of government or by any Attorney in the interim. I believe that the House should allow the people to decide this. It is rather belated to say that there is anything improper in this proposal. It is an eminently sensible proposal. Nobody has objected to it up till now. The governments have accepted it. The governments have all collaborated in putting it. In these circumstances the people ought to be allowed to vote on it.

The other referendum proposals of course are ones which fall within the province of this Parliament. It has been stated all along that they would be put to the people at the next Federal poll. I stated that this was one which all of us suggested - Commonwealth and State - also should be put at that time. Nobody - no head of government - has demurred to that proposal. It is rather belated to suggest that more consideration is needed. What further consideration is needed? There could have been no fuller consideration than there has been on this. It is the first time that Federal and State Attorneys and draftsmen have collaborated on such a matter since the nation was formed. There should be no more delay in putting this proposal which up to this stage and during the last 6 months has been accepted not only without demur but has been accepted with positive collaboration between the 7 Australian governments.

Mr HAMER:
Isaacs

– The remarks of the Prime Minister (Mr Whitlam) were almost totally irrelevant to the purpose of the amendment moved on behalf of the Opposition. The Prime Minister listed an impressive array of consultation with various authorities. But what he did not say was that he has the agreement of the important elements which he needs - the State parliaments and the State Premiers. There was no mention of them agreeing. He merely said that they had been informed.

Mr Whitlam:

– I did. I gave the House the precise reference.

Mr HAMER:

– No, there was no precise reference. The Prime Minister said - and I think I can quote him accurately - that this consultation had taken place with the Premiers and that none of them had protested about this legislation being introduced.

Mr Whitlam:

– Your brother was the first one to support the idea.

Mr HAMER:

– No.

Mr Whitlam:

– I am sorry - he was the second one.

Mr HAMER:

– There is a very great difference between the principle, with which I entirely agree, and the detailed Bill which must be subject to very close examination. The Prime Minister of all people should know the difficulty of getting referenda through if there is any significant opposition. It is most important that the change to the Constitution envisaged in this Bill, which I believe should command widespread support, should be thoroughly examined and that the minor areas of dispute should be removed before it is put to the people. Otherwise a very desirable change to the Constitution will be unnecessarily lost.

I accept that our Constitution, which was framed in the balmy days of Queen Victoria, is in many areas obsolete. There must be some revision of the division of powers between Federal and State authorities. What this House must do, and I hope what the Constitutional Convention will do, is determine where the political responsibilities should lie and what constitutional powers should be allocated to deal with these responsibilities. This must be a 2- way process. Section 51 (xxxvii) of the Constitution as it stands at present allows the Commonwealth to make laws on matters which the States have referred. But the usual attitude taken by State Premiers, and I think they take this attitude advisedly, is that legal uncertainties in this paragraph render the course of reference most hazardous. For example, it is not certain whether a reference can be made on terms and conditions and the States are far from certain whether once a power has been handed over it will be gone for good.

I accept that the proposed referendum attempts, probably successfully, to deal with these problems. It makes a very considerable attempt to solve these problems. But I think we should be quite certain it does before we put it to a referendum and ask the people to make a decision. We should ascertain whether it is adequate to meet the problems of the States or whether the States would still have objections and worries. The other point is that if this process of transfer and rationalisation of powers is to work effectively it must be carried out on a 2-way basis. The Federal Government must have the power to delegate its powers to the State governments. I suggest that the most important area is in the field of sales tax. Again this referendum proposal meets, or apparently meets, these requirements. I have no objection to the principle of the proposal. My worry is to ensure that the proposal, which I believe is most important, is thoroughly investigated before it is put to the people so as to remove unnecessary objection. Therefore I believe that the referendum should be deferred, as is suggested in this amendment.

Apparently it is proposed that the constitutional alteration proposed in this legislation should be put with 4 other referenda at the Senate election which presumably will be held in May. We have discussed in this House for some time the other referenda proposals. Firstly we have discussed the grossly misnamed Constitution Alteration (Democratic Elections) Bill. This legislation is quite blatantly a vehicle for allowing ,the Minister for Services and Property (Mr Daly) to gerrymander the electorates. The Constitution Alteration (Local Government Bodies) Bill is sound in basic concept in that it seeks to provide money to local government. However, it is clearly aimed at destroying the State governments. I agree with the purpose of the other 2 Bills - the Constitution Alteration (Simultaneous Elections) Bill and the Constitution Alteration (Mode of Altering the Constitution) Bill. But in each case I disagree with the method by which this purpose is to be achieved. These 4 referenda proposals are doomed to failure.

Dr Gun:

– Could I intervene, Mr Deputy Speaker, to point out that the honourable member is getting off the subject of the Bill before the House. Also, I would ask him to bear in mind that only 5 minutes is left before the time allowed for the second reading of the Bill is exhausted.

Mr HAMER:

– I have noted the time.

Mr DEPUTY SPEAKER (Mr Lucock)Order! I point out to the honourable member for Isaacs that the Bills to which he has referred have already been disposed of by the House.

Mr HAMER:

– Quite so, Mr Deputy Speaker.

Mr DEPUTY SPEAKER:

-I was anticipating that the honourable member would use his argument to justify certain comments that he was making on the Bill now before the House to which I hope he will now direct his remarks.

Mr HAMER:

– Thank you, Mr Deputy Speaker. I will be delighted to do so. The danger that I see is that this change to the Constitution, with which I agree, will be put to the people with 4 other proposals which will fail and which will deserve to fail. What I believe we must do is to separate this good and valid proposal contained in the legislation now before us and put it to the people separately after proper examination when valid objections to it have been removed. It should be put to the people separately when it has a good chance of success. For that reason I support the amendment.

Dr GUN:
Kingston

– I thank the honourable member for Isaacs (Mr Hamer) for his courtesy. Although 1 listened carefully to the remarks of Opposition speakers I found that none of them really addressed his remarks at any stage to the matters that were raised as objections by representatives of the various States towards this Bill. If we have a close look at the legislation we will see that in respect of those matters on which the Australian Government could accommodate the objections, that action has been taken. In other cases it is quite obvious that nothing further could be gained by any further consultation. I believe that the State governments and the State parliaments will accept the position of the Australian Government as being utterly reasonable in this case.

Therefore one is left to speculate as to why the Opposition in this case is trying to defeat this Bill, or move an amendment which will have the purpose of defeating the Bill. I think the reason came out in the remarks of the honourable member ‘for New England (Mr Sinclair) when he talked about the concurrent holding of a Senate election when the referendums were put. In other words, what this amounts to is that the Opposition does not want a popular referendum - one which it supports and which it knows everybody will support - to be held concurrently with a Senate election. Its opposition to this Bill fs purely for political purposes. It is merely an attempt to gain a few miserable votes. It is quite obvious that the Opposition is prepared to put the Australian taxpayers to the additional expense of holding a referendum at a different time, and this is solely for political purposes.

The honourable member for Moreton (Mr Killen) said that insufficient notice of this Bill had been given. He knows that this matter was considered at a meeting of Standing Committee B of the Constitutional Convention in Sydney two or three weeks ago. I cannot divulge what happened at the meeting, but the honourable member was present and he saw this Bill some 2 weeks ago. The only amendments made to it since that time are those which were made pursuant to a request by Standing Committee B. I will deal very briefly with the 3 matters that were raised by Standing Committee B in relation to this Bill. The 3 matters were: Firstly, whether a power referred to the Commonwealth by the States or vice versa would be an exclusive power; secondly, whether the power would or would not be revocable; and, thirdly, a request that if a power was referred to one State that same power be offered to all States by the Commonwealth.

In relation to exclusive powers, the Government has taken the view, which I think was expressed on many occasions at the meeting of Standing Committee B, that we want to introduce a measure that will be used. I cannot see any Australian government of any political colour being willing to refer a power to the States if it is going simultaneously to divest itself of the power it has under section 109 of the Constitution which provides that Commonwealth legislation has precedence in cases of inconsistent legislation. Surely no government will refer any power to a State if it is going to turn around the next week and legislate inconsistently. If any Commonwealth government were to do so it would completely destroy its credibility. If this measure is to work at all there has to be some degree of co-operation and trust between the Commonwealth and the 6 State governments. It has to go on the basis of trust; otherwise it will not go at all. One would not think it would be reasonable for the Commonwealth to refer a power to a State government and then the next week to legislate under section 109 to invalidate completely the reference that it had already made. This would completely destroy its credibility. If the Opposition is asking the Commonwealth to divest itself of its power under section 109 after any reference, then it is asking for a measure that will never be invoked. Let us have something with maximum flexibility. Let us have something that will enable co-operative federalism to work. This matter has been talked about at length in various circles, including the Constitutional Convention. I believe it is a matter that can reasonably be accepted by the States. It is a considerable advance on the present situation in which the Commonwealth cannot refer powers to the States, whether they be exclusive or concurrent. Surely this is a significant advance. I cannot see that anything would be gained by postponing the referendum any further.

The other matter referred to by the honourable member for Moreton and the honourable member for Isaacs was whether the reference could be revocable. I think this is set out pretty clearly in the Bill. The honourable member for Moreton queried whether under paragraph (e) of proposed new section 108b. certain conditions could be imposed which would make the reference irrevocable. I suggest that paragraph (c) of proposed new section 108b. spells out quite clearly that any State legislature can revoke a reference at any time it chooses. I know that the honourable member for Moreton likes to refer to the Latham judgment which states quite clearly that a State government can repeal previous legislation at any time. If it were not able to do so, that would be a derogation of the sovereignty of a State legislature. I suggest that even if that is not sufficiently strong there is paragraph (c) of proposed new section 108b. which says in black and white that the reference may be revoked at any time by an Act of that Parliament.

The other matter that was put to the Australian Government was whether a power should be offered to all States if it were to be offered to one State. The Australian Government has acceded to this request and that has been included in the Bill. I suggest that this is something that should please the honourable member for Moreton. Apart from that, this is a measure which he has had adequate time to consider -

Mr SPEAKER:

– Order! The time allotted for the second reading of the Bill has expired.

Question put:

That the words proposed to be omitted (Mr Killen’s amendment) stand part of the question.

The House divided. (Mr Speaker - Hon. J. F. Cope)

AYES: 66

NOES: 53

Majority . . . . 13

AYES

NOES

Question so resolved in the affirmative.

Amendment negatived.

Original question resolved in the affirmative.

Bill read a second time.

In Committee

Clause 1 agreed to.

Clause 2.

Mr VINER:
Stirling

– Under clause 2 of the Bill it is intended that power be given to the Commonwealth to refer certain of its powers to a State. In providing for this, clause 2 refers to the designation of a matter. The word ‘matter’ is not defined; we do not know what it is. No explanation of that word has been given to the House by the Prime Minister (Mr Whitlam) and, it would seem, no explanation has been given to the Premiers or the governments of the various States. I was interested to hear the Prime Minister relating chapter and verse the amount of correspondence and so on that he has had with the various State governments, the Australian Constitutional Convention, the Parliamentary Counsel and Attorneys-General. I noted the Prime Minister’s own admission that he wrote on 1 March to the Premiers advising them of his proposed Bill and inviting their reaction. The first of March was last Friday and, because there is no mail service on a Saturday morning, it is most likely that the Premiers received that letter just last Monday. Mail services being what they are, it is unlikely that a letter from any of the Premiers could yet have reached the Prime Minister. So really there has been no time at all for the governments of any of the States to consider the Bill.

It was only last Thursday, 28 February, that a copy of the Bill was given to the Leader of the Opposition (Mr Snedden). That highlights the fact that quite insufficient time has been given to this Parliament to debate this Bill. The significance of that is that the Parliament does not know what matters might be referred by the Commonwealth. A reference to the Constitution indicates that the only matters in relation to which it makes any sense for the Commonwealth to refer power to the States are those matters in relation to which the Commonwealth has been given exclusive power. But when it is a concurrent power, all that the Commonwealth has to do in order to refer the power back to the State is to remove the appropriate legislation from the statute book. So we need to look at what are the exclusive powers of the Commonwealth. Are these the matters referred to in clause 2?

Let us look quickly at what are the exclusive powers of the Commonwealth, lt has power to make laws with respect to the seat of government. The Commonwealth is not likely to refer that power. The Common- wealth has power to make laws with respect to Commonwealth places. The Prime Minister has already referred to that as a possibility, but it is not sensible to refer that power because there is ‘already on the statute book complementary legislation passed by this Parliament and the parliaments of the various States. The Commonwealth has power to make laws with respect to the departments of the Public Service of the Commonwealth. That power will not be referred to the States. The Commonwealth has the power to make laws imposing duties of customs and excise and granting bounties. I think we can exclude the power in relation to bounties from the possibilities and, on all practical considerations of Commonwealth finance, I think we ought to exclude the power relating to customs and excise also.

The Commonwealth has power to make laws with respect to the Commonwealth territories. The Commonwealth will not abrogate that responsibility to the States. It has power in relation to coinage and in relation to the raising and maintaining of military forces for the defence of the Commonwealth. To me that is an interesting one, coming as I do from Western Australia. I notice that there is in the chamber at the present time a representative of the State Parliament of Western Australia. I think many Western Australians would be glad to have the defence power of the Commonwealth over the territory of that State referred to the State of Western Australia. I am sure that we could do a much better job than the present Government is doing. So that is a possibility, but I doubt whether our present Prime Minister would be agreeable to that proposition.

The Commonwealth has power in relation to borrowing money on the public credit of the Commonwealth, naturalisation, service and execution of documents throughout the Commonwealth, and the recognition throughout the Commonwealth of State laws. The Commonwealth has power concerning the relations of the Commonwealth with islands of the Pacific. It is unlikely that the Commonwealth will refer that power to the States. It has power over the acquisition of State railways with the consent of the State. Obviously that power cannot be referred. That is about the end of the line. So is there any practical exclusive power of the Commonwealth which will be referred to a State? The answer obviously is no. That indicates that this whole exercise of supposed interchange of powers is a charade. It will be a one way traffic; when one looks at the Constitution it can only be a one way traffic. The Prime Minister did not give one sensible, practical example in bis second reading speech or in the debates in this House of matters which the Commonwealth will designate for the purpose of referring them to the States.

So it is of importance that this Parliament be given time to consider a Bill of major constitutional proportions which can fundamentally change the structure of government in Australia by altering the balance of distribution of powers between the States and the Commonwealth. When it can be seen that the traffic can operate in any sensible way only in one direction, it is obvious that the motive and the purpose of the Prime Minister in introducing this matter before the Australian Constitutional Convention last year was to provide a vehicle for State Labor governments to transfer powers to the Commonwealth and so, as I said in referring to another matter before this House, to fulfil the ambition of the present Government and to enable the Prime Minister himself to aggrandise the power of the Commonwealth at the expense of the States. When insufficient time is made available to this House to consider in Committee a matter of fundamental and far reaching importance, when explanations are required as to the meanings to be given to terms used in the Bill, it can be seen quite clearly - and the people of Australia ought to know it - that a totally inadequate opportunity is being given to this Parliament to debate the Bill.

I conclude by saying that it is not the Attorneys-General of the various States or of the Commonwealth that have to be concerned with this Bill; it is not the Parliamentary Counsel of the States or of the Commonwealth who have to be concerned with this Bill; it is this Parliament, because this Parliament has the responsibility and the duty of considering whether or not a matter should be put to a referendum of the people. To try to exculpate the errors and ways of the Government and the Prime Minister by referring to correspondence with the State governments and by referring to the consideration of this Bill by a committee of the Australian Constitutional Convention in no way relieves this Parliament of its obligation and its duty to consider fully and amply the implications of this Bill.

The CHAIRMAN (Mr Scholes:

– Order! The time allotted for the Committee stage of this debate has expired.

Question put.

That clause 2 be agreed to.

The Committee divided. (The Chairman- Mr G. G. D. Scholes)

AYES: 65

NOES: 53

Majority 12

AYES

NOES

Question so resolved in the affirmative.

Remainder of Bill - by leave - taken as a whole, and agreed to.

Bill reported without amendment; report adopted.

Third Reading

Motion (by Mr Daly) - by leave - proposed:

That the Bill be now read a third time.

Mr WENTWORTH:
Mackellar

– I think that there are so many things about this Bill that are still in doubt that we would be well advised, even at this stage, to defer it. I know that the Government thinks otherwise, but I ask the Prime Minister (Mr Whitlam) to have second thoughts in this matter if his mind is still open. The House has been treated quite disgracefully. We have had virtually no Committee stage on this Bill at all. Yet it is a technical Bill which has tremendous constitutional difficulties and it is not easy for some of us to see our way through what these difficulties are. I think that there is a deliberate attempt by the Australian Labor Party to confuse the public in regard to this Bill in the hope that by confusion the people will pass these proposals through. We are told that this is not a Bill to centralise power in Canberra; it is a Bill to decentralise power. All I can say is Timeo Danaos et dona ferentes; I fear the Greeks even though they bear gifts.

Mr SPEAKER:

-Order! I have warned the honourable member about using foreign phrases.

Mr WENTWORTH:

- Mr Speaker-

Mr SPEAKER:

-Order! The honourable member will resume his seat. In all seriousness, many of these phrases could be unparliamentary, so I ask the honourable gentleman to speak in the Queen’s English.

Mr WENTWORTH:

– I can assure you, Mr Speaker, there is nothing unparliamentary in that phrase. Even the Prime Minister, mediocre scholar as he is, would know what that means. I am perfectly entitled in this House to use a phrase from Virgil if I am so inclined and there is nothing in the Standing Orders to prevent me. Timeo Danaos et dona ferentes. I say this because the Government is coming forward and proffering something generously.

It is saying: ‘Oh we are not centralists in Canberra. There is no catch in this.’ It is like that wooden horse to which the phrase was originally attached.

Mr Hurford:

– Stick to the Romans.

Mr WENTWORTH:

– No, this one relates to the Greeks. The wooden horse looks all right but what is inside it? It is said that this measure is a gift to the States. It may well be, but I think we would like to look inside it and see what is there. We are not being given a chance to do this. We are told, for example, that clause 2 of the Bill, which proposes to insert a new section 108a in the Constitution, ensures that all States will be treated the same. That may be so but I take leave to doubt it when I look at the phrasing of that section. It states: the powers of the Parliament . . . subject to this section and to any conditions applicable to the designation -

What does that mean? Does that mean that conditions may be made which are applicable to one State and one State only? I do not know and I would like to have some lawyer tell me more about this, and I would like that lawyer not to be the Prime Minister because frankly I do not trust him. I would like to have an opportunity, and as a member of this Parliament I am surely entitled to it, to consult a competent lawyer whom I can trust and find out what this phrase means and how far it extends. I do not trust the Government and I do not trust the Prime Minister in this regard. He is an ex gratia Q.C., but never mind. He did all right in the liquor royal commission. He is an ex gratia Q.C. but I do not think he is a terribly competent lawyer, and even if he were I do not think he could be trusted, because he has shown himself to be untrustworthy. I say this in relation to this Bill. I take the exact phrases that the Prime Minister used in introducing the second reading of this Bill.

Mr Keith Johnson:
BURKE, VICTORIA · ALP

– Wind him up and he will go for hours.

Mr WENTWORTH:

– I think, Mr Speaker, that even I am entitled to some protection, even against your friends on your right.

Mr SPEAKER:

– I will look after you.

Mr WENTWORTH:

– You are not doing a good job. I hope you will give me the protection which it is your custom, very rightly, to extend to your friends on your right.

Mr SPEAKER:

– Which part of the Bill is the honourable member debating?

Mr WENTWORTH:

– I am debating the third reading and pointing out that by reason of what the Prime Minister said in his second reading speech on this Bill he is not to be trusted. He gave the impression that all the States supported this Bill as it stands. I think it is true that all the States support the principle behind this Bill but they do not support the fine print. It is the fine print to which I think the House should turn its attention. The fine print of the Bill has not been examined and cannot be examined within the time made available to us. I believe it is the considered design of the Government that the fine print should not be examined before this Bill goes through the House.

Mr Keogh:

– You ought to be examined.

Mr SPEAKER:

– Order! Personal reflections will not be tolerated.

Mr WENTWORTH:

– I can only say that they are being tolerated at the moment and that seems to be reprehensible, but never mind. The Prime Minister has given us the impression that the States have agreed to this fine print. They have not done so and I for one do not know what is involved in this fine print. I am not to be given the opportunity of examining it in detail or consulting competent lawyers as to what the fine print means, but in this case there seems to me to be some protection not in this House but in the Senate. This Government has prostituted this House, made this House nugatory, and because it has done so-

Mr SPEAKER:

-Order! The time allotted for the remaining stages of the Bill has expired.

Question put -

That the Bill be now read a third time.

The House divided. (Mr Speaker- Hon. J. F. Cope)

AYES: 66

NOES: 52

Majority 14

AYES

NOES

Bill read a third time.

page 131

CONSTITUTION ALTERATION (SIMULTANEOUS ELECTIONS) BILL

Suspension of Standing Orders: Third Reading

Mr DALY:
Minister for Services and Property · Grayndler · ALP

– I move:

That so much of the Standing Orders be suspended as would prevent the vote taken earlier this day on the third reading of the Constitution Alteration (Simultaneous Elections) Bill 1974 being rescinded and the question for the third reading of the Bill being again put to the House forthwith.

Mr Speaker, as you know, on the third reading of this Bill an absolute majority was required but due to a malfunction of the electrical system only one minute 26 seconds was allowed for honourable members to reach the chamber instead of the 2 minutes provided under the Standing Orders. Consequently 9 members of the Government Party and 3 members of the Opposition were locked out from the chamber. It was unprecedented for the bells not to have rung for that time. Honourable members from both sides would be excused for not having made their way to the chamber in the time available to them. Consequently, I believe it would be quite wrong - I believe that honourable members on that side of the Parliament would think so too - for important legislation of this kind not to be taken through to its fulfilment because of a malfunction of the electrical system.

It is not unusual to recommit Bills in these circumstances. Tonight I turned up the Hansard of 5 December 1962 and found a somewhat similar occurrence in connection with a recommittal. Honourable members were not locked out but there was an arrangement whereby pairs were to be granted and the pair for one member of the Australian Country Party at that time was not approved. Consequently the Government’s legislation was defeated. But next day the Australian Labor Party, then in Opposition, agreed to recommit the clause because of this misunderstanding, and it was carried by the Government whereas the day before it had been defeated. In other words, we accepted what was a genuine mistake and the legislation was allowed to take the course set down by the Government. If one looks through Hansard undoubtedly one will find many other similar instances. Therefore tonight I move this motion. I hope that the Opposition will support it because I believe it is necessary in view of the importance of the legislation and the factors associated with the reason why honourable members on both sides of the Parliament were not here. I believe it is something that will meet with the approval of all democrats in this country because legislation should not be allowed to be defeated merely by something that has not occurred before in the history of this Parliament.

Mr LYNCH:
Flinders

– It is certainly true, as was suggested by the Leader of the House (Mr Daly) and in the earlier comments made by you, Mr Speaker, concerning the ringing of the division bells, that the bell system and the sand glass were checked and were found to be functioning normally. As you said at the time, it appeared for some inexplicable reason that the time which elapsed from when you ordered the ringing of the bells to when you subsequently ordered the doors to be locked was approximately one minute 26 seconds. We on this side of the House representing both the Liberal Party and the Australian Country Party accept that that version of the developments which took place is certainly correct and, responsibly, of course we do not seek to oppose the procedure which the Leader of the House has indicated.

Having said that and, I believe, responding in a responsible fashion to what the Leader of the House has just said - we seek to claim no political credit for the malfunction which has taken place - I want to go on record as saying that, despite the precedent to which the honourable gentleman referred, this situation is really a little different because it concerns 4 major constitutional Bills which the Government has put before this Parliament as Bills of fundamental importance which it intends to take to a Senate election. Therefore I take the point that this is an unusual and extraordinary procedure because in the first place, as honourable gentlemen on the Government benches will well appreciate, the daily program was circulated to all honourable members before the luncheon adjournment and it set out quite clearly the time at which particular Bills were required to pass different stages. Therefore I say to the Government - it is useful to put this on the record - that there was no excuse for any member of the Government or the Opposition not being informed as to the particular time at which the debate would take place. Government members knew full well that they required an absolute majority consisting of 63 members. There was therefore less excuse for the Government than for Opposition members not knowing that they ought to be in the House at a particular time.

The fact is that there were 57 Government members voting for the motion and 51 Opposition members voting against it. As the chief Opposition Whip, the honourable member ‘for Henty (Mr Fox), pointed out earlier in the day, 3 Opposition members were away because of illness and the Leader of the Opposition (Mr Snedden) did not vote on any of these Bills. Therefore 3 Opposition members and 9 Government members failed to reach the House in time to vote before the doors closed. There is clearly a disproportionate element involved here. There were 66 Government members and 54 Opposition members who could have voted. The fact is that it is the Government’s responsibility to maintain the numbers in the House. The Government knew full well the particular time-

Mr Hurford:

– You have got to be joking.

Mr LYNCH:

– I am not joking. Honourable members opposite may have their tails between their legs and I can appreciate why. Mr Speaker, as you would appreciate from the high office you hold in this Parliament, constitutional Bills are important. We regard them as important. The Government has alleged that it regards them as important. But this episode is no more than the finishing touch to proceedings which have been a monumental farce in the history of this Parliament. Mr Speaker, if you think of the proceedings to which we have been forced to submit during the past day in relation to the 4 Constitution Alteration Bills you will remember that only 4 honourable members of the Liberal and Country Parties were able to address comments to them. If this is regarded as a meaningful opportunity for members of this Parliament to address themselves to the points of debate and to assess the legislation before the House, we on this side certainly reject that view. It has been a farce.

I say to the Government - not to the Leader of the House because I know that he has had difficulties in relation to this matter and I exonerate him totally from any comment - it has been a farce and the Government is responsible for making it a farce. I have no doubt that when the people of this country are required, as they may well be, to cast a vote on these constitutional amendments they will take note of the manner in which the Government has forced the legislation through the House, or sought to do so, but was so unable to direct the proceedings of the House that it could not front up to a debate at the required time. Mr Speaker, I do not seek to transgress your leniency in the comments I have canvassed in this debate. The fact is that this country does not have a Government, and the group that is opposite in this chamber cannot effectively control its members in this House. Therefore, speaking on behalf of both Opposition parties - we have a common view on this matter as we do on most matters which come before the House- (Government supporters interjecting.)

Mr SPEAKER:
Mr LYNCH:

– Well, the jackals are out and they are braying and so forth. (Government supporters interjecting.)

Mr SPEAKER:

-Order! The House will come to order.

Mr LYNCH:

– Some of them do make it a little difficult, Mr Speaker. Responsibly, we do not reject the motion which is before the Chair. We accept it in the terms in which it is brought down but I take the point that I have put before the House.

Mr WENTWORTH:
Mackellar

– I am not going to oppose this motion but I should like to make one or two comments in regard to the matter. Firstly, let me say that I am not and I never will be impressed by any statement of facts from the Leader of the House (Mr Daly) because the Leader of the House is a self-confessed person who attempted to falsify Hansard and if he can falsify Hansard he can falsify facts of this character. But in this case I am assured by other people of some reputation that there was a mistake. Let me say, secondly, that I am a little puzzled about the nature of the mistake because you, Mr Speaker, in the chair, said that you were not worried about the bells. You were looking at the sandglass. I heard you say this and I am sure that what you said was correct. How did it happen that there was an error with the sandglass? Did anybody fail to turn it up? In that case it would not have shown in that way. I do not know what the malfunction in the sandglass was and I would like to hear more about that. I am not going to hold up the motion but I think this is something that requires a little more explanation than we have yet had. It was not the bells but it was the sandglass that was wrong and I say that by reason of what you, Mr Speaker, said from the chair and I am quite certain that what you said from the Chair was correct.

There is a more serious aspect of this matter which I draw to the attention of the Government. I have looked at standing order 263 in relation to this matter which states:

Whenever the third reading of a bill by which an alteration of the Constitution is proposed to be made has not been carried by an absolute majority of the House, the bill shall be forthwith laid aside and shall not be revived during the same session.

That is a standing order of the House and we are now purporting to suspend it. I am willing to vote for that suspension and I shall do so in a moment but I am not clear in my mind as to what the legal consequence of this may be. It may well be that we will not be entitled to put the Bill to a referendum, even though we have voted in the House to do so. Let me just try to draw the attention of the House to the legal point involved. The House is perfectly able to suspend its own Standing Orders. Yes. But can the House do it with retrospective effect in a matter where there is a specific bar? I know that my friend the Prime Minister (Mr Whitlam) may well know some of the legal precedents in this matter. I am not going to argue them in detail here. But do we have the power retrospectively to suspend a standing order of this character? Has not the standing order already had an effect? It is quite different from other standing orders. This is a specific bar in the Standing Orders and because there is a specific bar it already has had its effect and I am not at all certain about this matter. I am only expressing doubts. I am not a lawyer and I do not have the certainty which a lawyer would have in this matter. I express some doubt that there may be a legal point involved. Even though we suspend Standing Orders - I am going to vote for that suspension in a moment - it may be that the referendum itself would be illegal and open to challenge in the High Court of Australia because of the specific nature of Standing Order 263 which already has had its effect. Although we can certainly suspend a standing order prospectively for anything we do in the future I am not at all certain that the House has the power to suspend retrospectively the operation of a standing order which has already come into effect. This is a most specific bar. It is quite different from nearly all the standing orders of the House and I have doubts - only some little doubts - about the legal effect of what we are now doing. I shall vote for the suspension with those reservations.

Mr WHITLAM:
Prime Minister · Werriwa · ALP

– Of course I want to allay the most extravagant fears of the honourable member for Mackellar (Mr Wentworth). The Constitution in section 128 lays down the requirement for the second submission of a referendum Bill to a House in which it has originated 3 months after the other House has rejected it a first time. Section 128 states:

  1. . if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority . . .

It then goes on to say it can be presented by the Governor-General to the people. The requirement of the Constitution is that such a referendum Bill be passed by an absolute majority. The Constitution takes no notice of first readings, second readings, Committee stages or third readings. The courts take no notice of the procedures of Parliament. They are concerned “ only with the requirements of the Constitution and the Constitution states that if there is an absolute majority the matter can then be put to the people by the GovernorGeneral. I do not believe that the fears of the honourable gentleman have any basis at all. This particular standing order, like any other standing order, can be suspended. The motion will achieve it. If I may also quote the ancients, I believe that on this matter the honourable gentleman is vox et praeterea nihil or, as Shakespeare phrased it, all sound and fury and signifying nothing.

Mr KILLEN:
Moreton

– I am sorry but I cannot agree with any measure of exuberance with the Prime Minister (Mr Whitlam) in his views on the honourable member for Mackellar (Mr Wentworth). Indeed, I think that the honourable member for Mackellar has done a service not merely to this side of the House but to the entire Parliament in sounding a warning as to the possible consequences

Mr Keith Johnson:
BURKE, VICTORIA · ALP

– Rubbish!

Mr KILLEN:

– Well, the honourable member would be an impeccable judge of that, would he not? The honourable member for Mackellar sounded a warning as to the possible consequences of what appears to be an irregularity. I am conscious, Mr Speaker, of the injunctions you have served today on members regarding Latin quotations. The Prime Minister has indulged himself in one and I may possibly indulge myself in one. Omnia prae sumuntur rite esse acta - it is presumed that everything is done regularly. But has everything been done regularly here today? It is one thing for the House to identify the malfunction regarding the electric wires and what have you. It is another thing, though, to seek to set aside retrospectively a standing order which says quite explicity that in the same session of the Parliament a Bill for a referendum which has ‘been rejected cannot be brought back again. That is what we are doing and if there is any challenge to it it will be of no avail for any person after the event to say: Well, the Prime Minister said everything had been done and the matter was passed’. The courts would be entitled to look to see if it had been done in the proper and regular fashion. Far be it from the Honourable the Prime Minister to seek to belittle the honourable member for Mackellar. He sought not to indicate that he was voting against the suspension. All he has done as I understand his views is to say: ‘Well, possibly there may be some doubt as to whether or not this Bill has been properly passed’. I think the House of Representatives and the Parliament are entitled to acknowledge his enterprise in drawing our attention to it.

Question resolved in the affirmative, by an absolute majority.

Motion (by Mr Daly) agreed to:

That the vote taken earlier this day on the third reading of the Constitution Alteration (Simultaneous Elections) Bill 1974 be rescinded and that the question ‘That the Bill be now read a third time’ be again put to the House forthwith.

Mr SPEAKER:

– The question now before the Chair is: ‘That the Constitution Alteration (Simultaneous Elections) Bill 1974 be now read a third time’. An absolute majority is required.

The House divided. (Mr Speaker - Hon. J. F. Cope)

AYES: 66

NOES: 52

Majority . . . . 14

AYES

NOES

Bill read a third time.

page 135

ADJOURNMENT

Queensland Floods

Motion (by Mr Daly) proposed:

That the House do now adjourn.

Mr CORBETT:
Maranoa

– Tonight I refer to a matter which has been very much in the news in recent times - namely, floods, and particularly the floods in Queensland. Firstly, I express sympathy to the families and relatives of those who lost their lives in the recent floods. I record my appreciation of the great services rendered by the helicopters and their crews. I make special reference to those helicopter crew members who lost their lives in an accident in my electorate when proceeding to a flood area to render the essential help that helicopters provided so well throughout the flood period. I also express my appreciation to all those who contributed in any way to flood relief. There were very many of them. I draw attention to the fact that the Premier of Queensland expressed appreciation yesterday. This was reported in the ‘Courier-Mail’. I believe it is appropriate that similar sentiments be expressed in the Federal Parliament.

During the period of the emergency floods extended over much of Queensland. In my own electorate I was constantly in communication with police inspectors in 3 areas comprising part of my electorate. Those officers were on duty whenever I sought to communicate with them, which included weekends. I pay tribute to the work performed by members of the police force generally. It should be noted that in Queensland the police force had the responsibility of deciding when emergency services, including helicopters, and other relief should be provided. I received, as no doubt did other members in other areas, close cooperation from members of shire councils, shire clerks and their staffs. These people also were available at weekends and whenever there was a necessity for them to be available. Postal officials, too, could have done no more than they did in providing information for those who were seeking it with the object of promoting the assistance that was required. I believe that this highlights again the very valuable role played by non-official post offices, many of which are listed for investigation with a view to their possible closure.

I also was in contact with the section of police headquarters which was concerned with the control of operations in country areas. That section, too, could not have done more and could not have been more co-operative. The same comment applies to the Royal Australian Airforce Base at Amberley. On the occasions when I contacted that base everything possible was done. I was told that what was done on these occasions had to be authorised by the police inspector in the area concerned, and that is understandable because there has to be some centralised control. In that regard I think that we should look at the question of whether there should be an organisation which would perhaps allow more decentralised operation and exercise of authority. Nevertheless I think that in view of the results that were achieved what was done was of great credit to everybody, and the police were particularly concerned in this matter.

I mention also the exceptionally widespread and very generous response which was made by people throughout Australia. This is very warmly appreciated by all Queenslanders particularly those who will benefit from the distribution. I trust that the distribution will be made throughout all the flooded areas of the State. I accept and appreciate the fact that grants have been made available for immediate relief for emergency house repairs, for major repairs and for re-building homes damaged beyond repair. While acknowledging what is being done I am particularly concerned about primary producers who have suffered losses, in many cases crippling losses as a result of these floods, I ask this Government and the Queensland Government to consider the terms and conditions of the loans and to make them as favourable as possible.

I have information regarding some of the loans that have been made. I concede that they are being granted at concessional rates but one thing that concerns me a little is the length of the term for repayment of the loan. I believe that this is an important question because it is fairly obvious to anyone who has a knowledge of this problem that there will be a great shortage of stock for restocking purposes, a shortage of materials for rebuilding houses and sheds and a shortage of fencing material. If these materials were to be used in a comparatively short time it could apply a pressure which would make an even greater demand and perhaps force up the prices of those essential commodities.

I urge both this Government and the Queensland Government, working together, to give full consideration to the possible extension of the term for repayment of these loans which I understand is 7 years, although I have been informed that under certain circumstances repayments may be waived for the time being and made during the remaining term of the loan. But in my opinion 7 years is not sufficient time in which to recover from a disaster of this kind. I make that point because I believe it is important. I stress that there will be great difficulty in getting stock for replacement purposes, and in that regard I have made the suggestion that when loans are approved the interest on those loans should apply only when the loan money is taken up. If this is done there will not be pressure on demand for the stock that are available for restocking purposes.

As an example of the need and consequently the demand that will be engendered if short term loans result in more competition for available stock and materials I shall refer to some of the estimated losses. As yet these are only estimates and in all probability the losses will be greater. It was estimated in one shire alone in south-west Queensland that 88,000 sheep had been lost, but the sheep and wool adviser in that shire now estimates that the losses could reach 250,000 sheep. Also 1,000 cattle have been lost and no doubt the final figures will be higher. I have been told that some 400 miles of fencing and 200 dams have been washed away. Here again there will be a demand on the available capacity of the dam builders or tank constructors in those areas to make these repairs.

I have endeavoured to be not critical of governments because I believe that there is a need for co-operation. I commend the Queensland Premier for his appreciation of the co-operation by the Federal Government but I hope that the Prime Minister (Mr Whitlam) will take note of what I am saying. I sent him a telegram because early in the piece it was obvious that very extensive fencing material would be required. I asked him to make a survey of the available fencing materials and if the requirements were not going to be met - and I did not think they would be met - to make some provision for the import of fencing materials so that the leeway could be made up. I hope that that leeway will be made up at the cost of locally produced materials. As of now the Prime Minister has not been able to give me that information but I hope that he will look into the matter because fencing materials will be very necessary particularly in the reconstruction and repair of pest fences.

My time has just about expired but I want to repeat that there has been a great deal of team work. It will be necessary to take notice of the lessons that have been learned from the floods. I hope that more rainfall recording stations will be established along the rivers because these can give warnings of floods. I trust that a survey will be made that will enable the earliest possible advice to be given because the lack of early warning was one of the weaknesses in the flood situation in the capital city of Brisbane. I forgot to mention that loans will be required not only for primary producers but also for housing and for businesses. These loans will all come under this total scheme. The point I want to make is that while we still remember these tragic losses efforts should be made to do everything possible to carry out a survey in order to combat future disasters of this kind because as surely as night follows day such disasters will come again.

Question resolved in the affirmative.

Mouse adjourned at 10.57 p.m.

Cite as: Australia, House of Representatives, Debates, 6 March 1974, viewed 22 October 2017, <http://historichansard.net/hofreps/1974/19740306_reps_28_hor88/>.

View PDF View XML View in Voyant