28th Parliament · 2nd Session
The PRESIDENT (Senator the Hon. Sir Magnus Cormack) took the chair at 1 1 a.m., and read prayers.
– I give notice that on the next day of sitting I shall move:
That leave be given to bring in a Bill for an Act to amend the Industries Assistance Commission Act 1973
-Does the AttorneyGeneral realise that today and tomorrow are the anniversaries of that memorable saga in contemporary history known as the Murphy raid on the Australian Security Intelligence Organisation? Is there any connection between that raid and the absence of the report on ASIO’s functions, so often promised by him and stated by the ALP’s policy and platform to be required? Is it a fact that since the raid the 4 senior officers of ASIO under the Director-General of ASIO last year are no longer with ASIO and that their positions have not been filled? Is the Attorney-General now satisfied with the working of ASIO?
– It ill behoves the Deputy Leader of the Opposition to refer to such matters since he is aware that during a considerable part of last year a Senate committee was inquiring into various related matters. It also ill behoves him to speak about the workings of the Australian Security Intelligence Organisation because I remind him that it was stated by me here and, I think, elsewhere that the most damaging thing that occurred to ASIO in its history was the reported leaking of an internal document of ASIO- a document which was referred to in the Senate and in respect of which the honourable senator had asked questions which were apparently framed on the wording of that document even before it was released elsewhere. I say to him that the less he says about the workings of ASIO, the better. My recollection is that one senior officer has retired because of ill health, and another senior officer has retired because he reached the retiring age. ASIO is operating under the ministerial supervision which it should have. If the honourable senator has any complaints about it, he should let them be known to me. I speak to the Director-General of ASIO. My understanding of the operations of that organisation is that it suffered very greatly from lack of supervision and lack of proper ministerial assistance during the time the honourable senator had some responsibility for it, which he failed to discharge.
-My question, which relates to the 2 Taiwanese fishing trawlers confiscated in Western Australia last year, is addressed to the Minister for Primary Industry. Are the vessels still in the Government’s possession and has maintenance been carried out on them while they have been tied up? What action has been taken to dispose of them? Were they offered for sale by tender? What was the response?
Senator WRIEDT The 2 vessels referred to by the honourable senator were confiscated by the Australian Government last year as a result of their fishing inside the Australian declared fishing zone. The vessels are currently being held by the Australian Government under the control of the Department of Supply pending disposal by tender. There was a request from the original owners of the vessels in Taiwan to make them available again, I think by private treaty arrangements, to those owners. But the Government decided- I think quite correctly- that the vessels should be made available for sale by public tender. I understand that those tenders are currently being called.
– My question is addressed to the Minister representing the Minister for Labour. I recently inspected the career reference centre established by this Government in Gawler Place, Adelaide, and was suitably impressed by the services provided. Can the Minister say whether the Government intends to expand this type of service?
– I notice that no complimentary remarks about this service have been made from the other side of the chamber. It is a service which has been expanded by the Minister for Labour since we came into office. There were centres in Sydney and Melbourne. There are now centres in all capital cities except Darwin. The service is used greatly. The last figures I saw showed that about 80,000 young people had used the service, which is an advisory service with specialist officers. It is intended to establish centres in major regional areas outside capital cities and this is presently being planned by the Minister for Labour.
-My question is directed to the Minister representing the Treasurer. I preface it by asking: Is the Minister aware that one of the things that are worrying the people of Australia most at the moment is the way that inflation is galloping ahead without the Government apparently caring, and that this inflation is hitting home very hard on pensioners and those on fixed incomes?
– Order! Senator Townley, you are able to make a prefatory statement only to enable the question to be understood.
– I ask: To comfort people such as those who are dreadfully worried by inflation, is the Minister able to point to any real attempts which the Government has made to control inflation or to foreshadow any moves which are presently being contemplated by the Government not only to help the pensioners who can be easily helped but, even more, to help those on fixed incomes?
-The Government does care very much about inflation and its effects on Australia. Inflation is a world-wide phenomenon. There is little doubt that every country is affected by the inflation that is occurring in other countries. The honourable senator will recall the report by the Organisation for Economic Co-operation and Development which pointed out that under the administration of the last Government inflation was starting to move ahead strongly in Australia. This Government inherited an inflationary situation, as determined by that independent authority. Inflation affects the Government because, apart from what happens directly to pensioners and others, all the Government’s costs are inflated. Inflation affects the Government because it has to pay more interest on the money which it borrows.
What is the Government trying to do about inflation? It is taking action, as far as it can, to try to edge the interest rates down. The Government is one body which has to pay interest. The Government has taken other measures such as the cut right across the board in tariffs. Unfortunately, it appears that the commercial community did not pass all the benefits of those cuts on to the people and steps ought to be taken to see that it does so. The Government has established the Prices Justification Tribunal before which the larger corporations have to justify their increases in prices. The honourable senator would realise that on many occasions the larger corporations sought increases which were unjustified in the view of the Tribunal. In these and in other ways the Government is doing what it can. The Treasurer is conscious of the problem and the honourable senator may be assured that the Government will continue to do everything it can to overcome the effects in Australia of this worldwide phenomenon.
– I address my question to the Minister for Primary Industry. In view of the advocacy of the Leader of the Country Party for prices paid for Australian crude oil to be increased to world parity, could the Minister tell the Senate what effect such a move in prices would have on costs to Australian farmers?
-I did see the statement by Mr Anthony; I think most of us have seen it. I made some inquiries as to the possible impact on farm costs if such an increase were implemented. My information is that there would be a very significant increase in farming costs and probably a rise of something like 10c a gallon for petrol. The estimated total cost to Australian farm inputs would be in the vicinity of $60,000,000.
– I ask the Leader of the Government in the Senate whether the United States Government has complained to the Australian Government about a lack of diplomatic security in Australia. In view of previously reported leaks of confidential discussions between the Australian Government and other governments, does the Australian Government regard such complaints seriously? What action does the Government propose to take to safeguard confidential communications between Governments?
– I am unable to assist the honourable senator in regard to the first part of his question as to any such complaint, and in the circumstances I ask that he put his question on notice.
– Can the Minister for Primary Industry confirm reports of an outbreak of brucellosis hi cattle in Tasmania which necessitates quarantining and possible slaughter of affected cattle? If so, can he indicate what financial protection is afforded to owners of cattle affected by contagious abortion in the event of compulsory slaughter?
-The campaign to eradicate brucellosis and tuberculosis in cattle has been continuing for some years and was recognised by the previous administration as being very important to our export trade. It is true that there has been a small outbreak in northern Tasmania. In 1970 the then Australian Government entered into an agreement with the Tasmanian Government to accept the cost of brucellosis eradication in excess of $50,000 over a 3-year period; all costs above $50,000 would be paid by the Australian Government. That is the present position. That scheme will operate until 1975-76. It means that the State authorities have the right to determine whether animals will be slaughtered. In the event of a State making that determination the State Government reimburses the owner of the beast to the extent of its estimated market value at the time.
-Does the Minister representing the Postmaster-General recall my asking him a question last year about whether red telephones could be altered so that emergency calls could be made without the use of coins and so avoid the confusion and concern which so often happens when red telephones are used on such occasions? Has the Minister made inquiries? If so, what are the results of such inquiries? If not, why have they not been made?
– I cannot recall the question being asked by the honourable senator although I do not doubt that he did ask it. I can tell him that every question I am asked concerning another Minister that I represent in this place is automatically referred to that Minister. I will have inquiries made and get an answer for the honourable senator as early as possible.
– I direct a question to the Minister for Repatriation. What has been the effect of the Government’s decision to provide medical treatment in repatriation hospitals for Boer War and World War I veterans on the level of admissions to these hospitals and the availability of beds?
-The Government introduced the measure in September and the latest figures I have seen covered the period to the end of January. Not a large number of patients- about 260, 1 think- had been admitted during the period and about three quarters of them had been discharged during the period. So the occupancy of beds by this class of person was not very great. It might be of interest to the Senate to know also that we have extended the use of these hospitals for the treatment of certain approved civilian patients after the priority given to ex-service personnel. About 1200 of those people were treated in repatriation hospitals by about the end of February.
– My question is directed to the Minister representing the Prime Minister. What are those specific actions which the Government has taken, in the Minister’s words this morning, ‘to edge the interest rates down’? Have not interest rates risen to all time record levels as the direct result of deliberate Government action to increase those interest rates?
-To the first part of the question the answer is that the Treasurer has taken various steps. He does this, I understand, in consultation with the Reserve Bank. There is an endeavour to manage the interest rates that the Government will pay so as to confine the increase in interest rates. The Government has to pay interest. We hear the Opposition go on as if the Government is charging people interest rates, something it does not do except in a very limited way when people are granted loans by the Government. As everyone knows, if the Government lends money to ex-servicemen for housing, it applies extraordinarily low interest rates. But the Government is primarily a borrower of money on which it has to pay interest. Unless the Government pays somewhere near the market rate of interest on the money it borrows, it will not be able to raise money. So in one real sense the Government is a captive of the system which is operating. Nevertheless, by wise management- that is what the Treasurer is endeavouring to practise- one can have an effect on interest rates and start to lower them. That is what the Government is doing. To the second part of the honourable senator’s question as I recall it, the answer is no.
– I direct a question to the Minister representing the Minister for Transport. In the light of statements attributed to the Minister for Transport this morning, I wonder whether we can be given an indication whether normal safety regulations were observed by the pilots of either of the light aircraft which were involved in the crash near Sydney yesterday.
– That matter has not been raised in the Senate this morning.
-No, not in the Senate.
– Was it a Press statement?
-The Department of Transport is now conducting an investigation into the cause of the crash, whether there was any breach of regulation and, if so, by whom. The Minister for Transport has reported on this matter. The 2 aircraft had taken off from the Bankstown Airport with one minute’s separationthe De Havilland Dove at 3.34 p.m. and the Piper Comanche at 3.35 p.m. Because the De Havilland Dove had recently been serviced the pilot had obtained permission to conduct some air tests in the Bankstown circuit area before setting off for Sydney Airport. The Comanche was bound for Camden on a training flight. After take-off both aircraft made a left hand turn. Nothing more was heard until ground observers witnessed the collision. An inquiry is now being undertaken to determine the cause of this unfortunate crash. I think all honourable senators will join me in passing our condolences and sympathy to the relatives of those involved in the accident.
– My question is directed to the Minister representing the Minister for Minerals and Energy. Has the Government’s Reserve Bank requirement of a 33 1 /3 per cent noninterest bearing deposit been waived or altered in the case of the proposed $300m Alwest Alumina Project near Bunbury in the south-west of Western Australia? Is the environmental issue the last remaining obstacle to a successful signing? Does the Minister realise the importance of this project, in which the people of the south-west have placed so much trust and in anticipation of which millions of dollars have already been spent on harbour development?
-I am aware of the problem which exists in relation to this matter, but I am not sufficiently aware of the details of it to give the honourable senator an answer now. I shall refer his question to the Minister concerned.
– I refer to the questions asked of and the answers given by the Leader of the Government in the Senate. I ask: Is it not a fact that this Government increased the long term bond rate from 6.5 per cent to 8.5 per cent and consequently increased the overdraft rate from 7.5 per cent to 9.5 per cent, and that so far there has been no indication at all of any
Government initiative to reduce interest rates anywhere?
-What the honourable senator is putting is that the Government increased the rate of interest that it is paying to bond holders. This illustrates the proposition that the Government is a payer of interest in this community. The Government, in order to raise its money, is largely forced into taking a certain course by the operations of the market. The Government also can use the interest rate mechanism as a means of endeavouring to stem inflation. The previous Government tried to do this, without very much success. The present government is using the various mechanisms which are available to it, including this interest rate mechanism, to try to manage the economy. As this Government has said- I think the Treasurer indicated this yesterday- it is determined to do everything it can to keep inflation under control and also to reduce interest rates. It is quite obvious that this Government, as well as governments around the world, is striking enormous difficulties in doing this. I adverted earlier to some of those difficulties, such as great corporations trying to raise prices to levels which are demonstrated to be unjustified.
– I direct a question to the Minister representing the Minister for Immigration. Is it a fact that both the Prime Minister and the Minister for Immigration have stated in South-East Asia that the white Australia policy is officially dead? If so, has the number of non-Europeans admitted into Australia increased in any significant way? Are there officers of the Department of Immigration in South-East Asia to implement the Government’s policy. If so, why is it necessary for a meeting of the Prime Minister, 2 Cabinet Ministers and representatives of the Australian Council of Trade Unions to determine the Government’s action on its own policy?
– It is a fact that the Prime Minister recently stated in Asia that to all intents and purposes, the former policy, commonly referred to as the white Australia policy is dead and buried. I think that it is fair to say that there are probably now a greater number of people of Asian descent coming to Australia than was previously the case. I think that in regard to that last portion of the honourable senator’s question as to why it is necessary for a meeting of Ministers to take place concerning the proposed migration to Australia of certain people, it is fair to say, as the honourable senator will appreciate, that the simple reason for this is that employment is involved. This matter relates to the employment not only of people coming to Australia but also of Australians. Naturally, it is the desire of this Government to confer with the Australian Council of Trade Unions.
– I direct a question to the Leader of the Government in the Senate. What is the Government’s attitude to the price of petroleum products in Australia? Does the Government regard the price of fuel as an integral part of the cost structure generally in Australia? Has the Minister’s attention been drawn to a statement made by the Leader of the Australian Country Party, Mr Anthony, suggesting that there should be a drastic increase in the price of oil? Will the Government reject this advice and insist on maintaining the present price of petrol in Australia?
-Obviously, the Government regards the supply and the price of fuel as an integral part of the factors upon which the economy is based. The Government will do everything it can to contain the price of fuel. We do not accept the viewpoint that there should be increases in the price of oil as suggested by the Leader of the Australian Country Party. Every endeavour ought to be made to keep down the price of such commodities. But we find, unfortunately, that not only are those honourable senators opposite who are speaking about inflation suggesting methods which would lead to an increase in inflation but also that they are not too anxious to assist the Government in bringing forward proposals to control monopolies, restrictive practices and other practices against the interests of the consumer which would themselves blow up the inflation. It remains to be seen in the next few days what the attitude of those who complain about inflation will be when they are given a chance to do something to legislate to outlaw the restrictive practices and rackets which operate to force up inflation in the community.
-As the Minister for Customs and Excise has repeatedly criticised the control and conservation methods of the Queensland Government in respect of kangaroos, will he inform the Senate whether there has been correspondence between himself and the Queensland Minister for Primary Industries? Has he indicated clearly to the Queensland Minister the Commonwealth ‘s requirements?
-Queensland is well aware of what has happened in this field. There was a meeting of Federal and State Ministers who were concerned with this whole question. I attended the meeting and there was a representative from Queensland there. It was quite evident from the proceedings of that meeting that there was no national co-ordinated conservation program. Indeed, the minutes of the meeting have been tabled in the Senate. The honourable senator can read them himself. He would be appalled at the lack of such programs. The meeting then decided to set up a working party in order to have the necessary items of such a conservation program spelt out. They have been spelt out by the working party and circulated to all the interests represented, that is, the various States.
I understand the correspondence with the Queensland Minister has been from Dr Cass, the Minister for the Environment and Conservation. There is no doubt that the Queensland Government and the Minister concerned are well aware of what is required by such a program. The only problem is that they are just not willing to carry out the conservation program. I would think that they are the main offenders in this area, since most of the slaughter of kangaroos is carried out up there in the absence of what is recognised all over the world as the proper requirements of a conservation program.
– I direct my question to the Minister for the Media, ls it fact that the Australian Post Office has let a $2,400 contractquite a small contract- to an American company to make a training film entitled ‘How to lose your best customer without really trying’? Is it a fact that Dr Cairns, Mr Whitlam and other Cabinet Ministers have been allotted starring roles in the film? If so, in view of the low cost of the film, will they be appearing without fee? Is it not a fact that a short instructional film of this nature could easily have been made by an Australian company or by Film Australia? Can the Minister say whether any opportunity was given to an Australian company or Film Australia to meet this requirement?
-The honourable senator has directed the question to me as Minister for the Media; I think it would have been better directed to me in my capacity as Minister representing the Postmaster-General. I assume that Film Australia, a unit of my Department, could well have made such a film, although I cannot say whether the PostmasterGeneral’s Department approached the unit. It could well be, because of the tremendous amount of work now being done by Film Australia, that its resources were more than fully occupied. I know nothing about the details of the matter referred to by the honourable senator. He says the film is entitled ‘How to lose your best customer without really trying’ and that certain people occupy starring roles in it. I know that the honourable senator is a member of Actors Equity. Perhaps he might offer his services freely.
-I ask the Minister representing the Treasurer: Was not the Loan Council constituted by the Commonwealth and all 6 State governments to regulate and manage the loan raisings of all governments in Australia? Has not that Council operated since about 1930? Has it not fixed a program to gain the greatest use of loan money that the market would provide? Has the Minister any grounds for thinking that access to the Loan Council arrangements by local governing bodies will increase the amount of money available from the market?
– The honourable senator has conveyed some information and he now asks something which on the face of it might be easy to answer. I think it would be better for us to get the viewpoint of the Treasurer on the matter. I shall ask the Treasurer and have the answer supplied to the honourable senator.
-I ask the Minister for the Media: Is the Government prepared to encourage co-production arrangements with other countries in developing the Australian film industry? What sort of arrangements would be considered to be acceptable? Will the Minister agree that co-production film arrangements could contribute greatly to better international understanding?
Senator DOUGLAS McCLELLANDProvided that Australians are involved at the top creative levels of film production the Australian Government will certainly consider coproduction arrangements in film making. In the past, coproductions in Australia tended to give only temporary employment, usually to technicians and actors on a supporting level. However, I can tell the honourable senator that the Australian Broadcasting Commission is considering engaging in some co-production arrangements. So far as my own Department is concerned, as I told Senator Hannan recently, Film Australia, a unit within my Department, is very actively and successfully engaged in film production work. Recently Film Australia made a co-production film with the Canadian Film Board on the subject of conservation. I understand that the film has received or is about to receive prime viewing time in Canada. I am also making arrangements with the producer-in-chief of Film Australia, Mr Denis Brown, to go to New Zealand shortly for the purpose of considering an entry into coproduction arrangements with the New Zealand National Film Unit. I agree with the honourable senator that co-production arrangements can be exploited because they bring about a better international understanding.
– My question is directed to the Minister representing the Minister for Transport. What, if any, subsidies or other forms of assistance are or will be available to the owners or the builders of new fishing vessels in Australia?
– I do not know the position. I ask that the question be placed on notice.
– I direct my question to the Minister for Primary Industry. Can the Minister indicate whether an application has been received by the Australian Government for the importation of the prawn fishing vessel Nathaniel Wilson ‘? As it is reported that this is a most efficient vessel, will the Minister indicate whether approval is to be given for its use in Australian waters?
-The vessel ‘Nathaniel Wilson’ has been fishing in the Gulf of Carpentaria for the past 4 years under a licence issued by Papua New Guinea and not by the Australian authorities. The owner of the vessel has sought permission to import it into Australia. The authority to import a vessel into Australia rests with the Minister for Transport, not with me. I will not be in a position to issue a licence for the vessel to fish in Australian waters until such time as my colleague has issued a permit for the vessel to be imported. It is my understanding that the vessel is suitable for the purpose for which it is intended to be used. I would imagine that very shortly my colleague Mr Jones, the Minister for Transport, will give a decision on the importation of this vessel.
– My question is addressed to the Minister for Primary Industry.
Is it a fact as reported in Tasmanian newspapers yesterday that the Australian Government has decided to reject in toto the recommendations of the Legislative Council Select Committee on War Service Land Settlement which had the support of the Tasmanian Government? Will the Minister indicate what is meant by the statement that ‘the Federal Government will consider submissions by the State on individual cases’? Will he also indicate whether ‘individual cases’ means settlers on war service land settlement group areas as well as single unit settlers? Are all cases now, as it were, back to square one? If so, in order to alleviate their problems do the people concerned now have to recommence the tortuous path of representations through the State and on to the Canberran authorities? Is the Minister able to indicate why he has rejected all the recommendations of that Committee?
-The Legislative Council of Tasmania appointed in 1969 a select committee to inquire into the operations of the war service land settlement scheme. The report of the Committee was tabled in the Tasmanian Parliament in 1971. As a result of that inquiry approaches were made to my predecessor, Mr Sinclair, in his capacity as Minister for Primary Industry, to seek his agreement to the implementation of certain proposals contained in that report. I think it would be fair to say- I do not think my predecessor would argue with this statementthat he rejected all the main recommendations in the report. I am relying on my memory, but I think it will be found that my predecessor did not accept any of the recommendations in the report. The position taken by this Government has been that there has not been presented in the Legislative Council report a substantive argument as to why across the board adjustments should be made to the scheme in Tasmania. I remind the Senate that successive Australian governments over the years have paid out a total of $47m for the development of war service land settlement in Tasmania. Of that sum, $32m has been written off jointly between the Tasmanian and Australian governments- 60 per cent by the successive Australian governments over the years and the other 40 per cent by the Tasmanian governments.
For the number of settlers concerned, which is currently about 500 but which has diminished somewhat, the average amount that has been written off by the two governments over the years is about $35,000 a settler. The position taken by my predecessor was, I believe, correct because there was no justification for concessions to be made right across the whole of the settlement scheme. Many settlers have got into difficulties over the years because the productivity of their properties originally was not assessed as accurately as it might have been. For many reasons some settlers have not done as well as others. However, the majority of settlers have done well. They have met their obligations under the scheme. I believe it is hardly fair to say to a man who has met his obligations that certain concessions will be made to others who have not met their obligations.
In the cases of settlers who, for reasons beyond their control, have found themselves in financial difficulties we are adopting the policy which was followed by the previous Government, namely, that where individual cases of hardship can be shown to justify further consideration that is the proper course to follow. Where those cases are drawn to the attention of the Tasmanian and Australian governments they will be given every sympathetic consideration.
-Is the Leader of the Government in the Senate able to indicate when the Senate Select Committee on Foreign Ownership and Control will be reconstituted? I have in mind the reference which was before that Committee for report to the Senate during March.
-I thank the honourable senator for raising this matter. It was my intention to move at an appropriate time today to restore the various standing and select committees, and I so inform the Leader of the Opposition in the Senate. If it can be done without any great discussion, it can be arranged with the placing of business. The Government has been anxious to get through the Constitution alteration Bills, and that it why the reconstitution of the committees has not been proceeded with. The Opposition said that it wanted to proceed with the Address-in-Reply debate until it was completed. The Opposition almost made it a condition of our reaching the Constitution alteration Bills that we did not interrupt the AddressinReply debate. That was not done. We are now dealing with the Constitution alteration Bills. It is certainly my intention when those debates are concluded, if we can deal with the matter speedily, to move for the reconstitution of those committees this morning. I will discuss with the Leader of the Opposition when the most convenient time will be, but it is the intention of the Government to move for the reconstitution of the committees today.
– I direct a question to the Leader of the Government in the Senate. Is it not a fact that when the then Prime Minister, Mr Gorton, negotiated a price of $2.06 per barrel for crude oil in Australia it was stated to be equal to world parity price? Were the negotiations between Esso and the then Prime Minister only? Did Dr Hunter of the Australian National University at that time criticise the price of $2.06 per barrel as being too high, and did he suggest that the correct world parity price was $ 1.70 per barrel? Did the then manager of Esso, when challenged about the high price which was agreed to, state that Esso ‘was going to make a handsome profit, and we’re not ashamed of it’?
– My recollection is that all the matters which the honourable senator has put are correct.
– I direct a question to the Minister representing the Treasurer. Is it a fact that since the Prime Minister, at a seminar of the Metal Trades Industry Association of Australia on 22 June last year, vowed to curb inflation, inflation has increased dramatically? In what way does the Government propose to fulfil the pledge given by the Prime Minister?
– I have already indicated some of the steps which the Government has taken. Honourable senators may recall others. Some of the important steps include the cut in tariffs to enable goods to come in more cheaply, thus supplying the market and providing competition. The Government has not had from the commercial community the response which it ought to have had to that step. There was an automatic increase in some of the prices by the exact amount of the tariff cuts, thereby negating the effect of the step. Next, the Government established the Prices Justification Tribunal. Daily one can see the work it is doing in its endeavours to curb unjustified price rises. Then the Government introduced a measure, which the Senate stood over, not only to provide for consumer protection but to provide against those restrictive practices which, it is agreed by all, are a major factor in fuelling the fire of inflation. I hope the honourable senator will show his concern about inflation and his appreciation of the necessity for curbing inflation by doing everything he can to assist the Government to get a speedy passage of this legislation.
-Is the Minister representing the Minister for Transport aware of the uncomfortable conditions for transit passengers at Tullamarine due to the lack of air conditioning? Can he say whether, and when, air conditioning will be installed in the building?
– As one who spends many long hours waiting at Tullamarine I am aware of the lack of air conditioning in the terminal and of the discomfort that one experiences when the weather is hot and humid. Such weather is unusual for Melbourne. Melbourne mainly has a moderate climate, but there are days when the weather is hot and humid. When the Parliamentary Joint Committee on Public Works, which is an all-Party committee of the Parliament, considered the construction of the Tullamarine Airport it was noted that the design contemplated that air conditioning would be installed at a later date. The cost of air conditioning would be approximately $2m. Of course, since then there has been great expansion of the aviation industry and the Government has decided to recover 80 per cent of airport costs within 5 years. These measures have taken a toll of the finances of the Department which gives priority to air safety facilities before anything else.
– Did that project go to the Public Works Committee?
– Did it recommend air conditioning?
-As I told the Senate the project did go to the Public Works Committee. The design of the building was such that air conditioning could be installed at a later date at a cost of approximately $lm. But money is being spent on the expansion of other airport facilities. The first priority is for safety measures.
– My question is directed to the Leader of the Government in the Senate. It arises out of various questions asked this morning in relation to the Government’s interest rate policy. I ask 2 questions. Firstly, does the Minister not know that the long term bond rate is the interest pacemaker and that this rate is set by the Government as a conscious act of monetary policy? Secondly, as the answer to my first question must be yes, does the Minister not agree that it is fair to term the present Government as a dear money party and Government?
– Of course what the Government does is deliberate. Does the Leader of the Opposition in the Senate suggest that the Government can act in a vacuum and set whatever rate it likes without reference to the forces which are operating in the market place? Surely he would concede that if the Government were to set an unrealistic rate this would be futile. For example, the Government’s borrowing operations could fail. In an economy which is largely uncontrolled, where the Federal Government does not have the powers of managementwhich obviously it ought to have- to regulate the economy as other countries do, the honourable senator suggests that in some way the Government is able to do simply what it likes without reference to the forces which in many ways control what the Government can do in this sphere as well as in others.
– My question is addressed to the Minister representing the Treasurer. If, as the Minister suggested today, higher interest rates are costing the Government more than the inflow of taxes collected on the excessively high profits of the money market, will the Government now, as a first step, abandon its agreement with private and other banks to limit interest on the savings accounts of workers to 3.75 per cent while the banks receive up to 10 per cent for relending their money?
– I am conscious that the honourable senator raised this matter several times last year. I shall refer this question to the Treasurer for his reaction.
– I desire to ask a question of the Minister for Aboriginal Affairs. Is it a fact that the Department of Aboriginal Affairs has been chartering aircraft in South Australia for officers to fly to Aboriginal settlements and missions for the purpose of encouraging Aborigines to claim unemployment benefits? If so, does the Minister regard this advocacy to be in the best long term interest of the Aborigines concerned? Are training schemes being set aside? Are the Aborigines being condemned to be recipients of handouts without the prospect of being equipped to take up gainful employment?
-The Department of Aboriginal Affairs is chartering aircraft to take officers from site to site. This is understandable because of the location of the various settlements. It applies not only to South Australia but to other areas as well. The purpose of the visit of the officers is not to advise Aborigines about unemployment entitlements. Aborigines on reserves, other than those who have been dismissed from work on the reserves, have no unemployment benefit entitlement. With the introduction of award wages on reserves they all become part of the Public Service set up and the vacancies permitted by the Public Service have been limited. Some Aborigines previously receiving the training allowance now have an entitlement to unemployment benefits if no other employment can be provided for them. Surprisingly, there are very few Aborigines on the reserves and very few off the reserves who are drawing unemployment benefit. The money is not coming from unemployment benefit, and in respect of the recent accusation about Ceduna in South Australia, the manager of the reserve pointed out that no Aborigines on that reserve are receiving unemployment benefit.
I know that there is more wealth amongst all sections of our community today and that there is unfortunately a small group of Aborigines associated with fringe city development who are not utilising the additional money in the best interests of what we consider to be good living standards. As Senator Marriott would know from experience with me on the Senate Select Committee on Drug Trafficking and Drug Abuse, when a new drug is introduced to a culture there is trouble, and the Aboriginal race was the only race which had had no stimulants of any sort throughout its history. We have now introduced such a substance to the Aborigines and there must be a period when it has an undesirable effect on them. It is unfortunate that in some sections of our community there is condemnation of the behaviour of Aborigines after taking liquor but no one has thought to study and supervise the position in which Aborigines find themselves. The reason for their drinking is not so much their increased wealth as their low socio-economic conditions. The solution to the problem is to lift the standard of the Aborigines so that they have some ambition in life and do not have to drown their sorrows and frustrations in liquor.
– Did the
Minister for Primary Industry base his reply to Senator McLaren’s question this morning about oil prices on the examination of Mr Anthony’s statement of the Country Party’s energy policy or on Press reports? Is he aware that Mr Anthony sees wisdom in an oil price review immediately to cushion the effects of a much higher rise when the price is due for re-negotiation next year? Which is the better course of action?
– I am not going to make a judgment as to which is the better course of action. Mr Anthony made the suggestion, not me or anyone else on the Government side. I do not know whether Mr Anthony fully appreciated the significance of what he was saying. The point I was endeavouring to make was that his suggestion would result in a very significant increase in farms inputs and I am surprised that he, as Leader of the Australian Country Party, would recommend a course even remotely in that direction.
– I direct my question to the Minister representing the Prime Minister. Did the Government not claim when increasing the long term bond interest rate, and therefore increasing the general overdraft interest rate, that the action it was taking was aimed deliberately at reducing the amount of money to be made available to the building industry, where demand allegedly exceeded supply? If so, did the Government not deliberately put up interest rates to make money dearer as an economic instrument rather than merely to meet the market price of money?
-I think it would probably be more convenient for the Treasurer himself to answer that question.
– I direct a question to the Attorney-General. Can the Attorney-General inform us now whether the Commonwealth police gave warning to the Queensland police before the Whisky Au Go Go bombing on 8 March 1973? If so, when and in what way was the warning conveyed?
– The answer is yes. The bombing occurred on 8 March 1973. The warning was given by an officer of the Commonwealth police to the Queensland police on the morning of 27 February 1973. The officer who conveyed the information so reported the information and his conveyance of that information to the Commissioner of Commonwealth Police by report dated 1 March 1973.
-My question is directed to the Attorney-General. Does the report of the Police Commissioner who inquired into the events at the Department of Aboriginal Affairs on 27 February which the AttorneyGeneral received this week explain why police officers failed to lay the charges which are now before the court? Was it not this failure which prompted the investigation which the AttorneyGeneral ordered? Does the Attorney-General propose to say nothing about this failure, the reasons for it, and any action taken in respect of it until completion, possibly in three or four months time, of the hearing of the charges, and thereby leave unanswered during that time the suggestions of collusion or conspiracy which were made? If he does not propose to answer it, does he say specifically that that is because the material cannot be separated from the matter before the court, about which he does not want to comment?
– Two persons are facing serious charges, A report has been made and I have informed honourable senators of that. I do not think it is desirable to enter into the questions which the honourable senator has raised. Earlier in the week he spoke of prima facie evidence of conspiracy. It is very easy to say these things. He has not said who are the conspirators and he has not said -
– The Prime Minister himself said it so it has some substance.
– I am referring to what was said by the honourable senator. He has not said who are the conspirators and he has not said what was the nature of the conspiracy. I have invited him, if he has evidence of such a conspiracy, to put that in the hands of the Crown Solicitor. It is quite undesirable in those circumstances, in my view, that the report of the Commissioner be made public. If the Leader of the Opposition here wishes to see the report, I think that would probably be a reasonable course and I would make it available to him for his perusal. But I think it is quite undesirable that such a report be made public at this stage.
– I ask leave to give notice of a motion.
– I make the observation that the order of the business of the Senate requires that a notice of motion be given at an earlier time than this. Is leave granted? There being no objection, leave is granted.
– I give notice that 3 sitting days after today I shall move:
That the amendment of the Public Service (Parliamentary Officers) Regulations, as contained in Statutory Rules 1973 No. 223, and made under the Public Service Act 1 922- 1 973, be disallowed.
– For the information of honourable senators I present an outline of the Treasurer’s proposals for new superannuation arrangements for Australian Government employees. Because of the complexity of the matter, the Government has decided to seek the benefit of outside actuarial advice on these proposals.
– I present the forty-eighth report pf the Standing Committee on Regulations and Ordinances relating to an amendment to the Public Service (Parliamentary Officers) Regulations.
Ordered that the report be printed.
– by leave- I move:
They are the Select Committee on Securities and Exchange, the Select Committee on Foreign Ownership and Control and the Select Committee on the Civil Rights of Migrant Australians which were appointed last session be reappointed with the same powers and consisting of honourable senators to be nominated and reappointed;
I do not want to say anything provocative. The Senate will be aware that the establishment of one of those committees, the Senate Select Committee on the Civil Rights of Migrant Australians, was opposed by the Government very strongly. I have moved the motion to reappoint all the standing and select committees because prorogation had the effect, or may have had the effect, of suspending the operations of the committees. It is as a precaution that the committees are reappointed. I want to say in relation to the Committee I have mentioned that the moving of this motion is not to be taken to suggest that in any way the attitude of the Government has altered. My putting of this motion to re-establish the committees is a machinery matter carried out without prejudice to anything that has been or may be said about that Committee. I say that without intending to provoke discussion. I hope I shall not provoke discussion on this matter. I simply wish to make the position of the Government and myself as Leader of the Government in the Senate abundantly clear.
– I thank the Leader of the Government in the Senate (Senator Murphy) for moving this motion. I understand that the Government is anxious to deal with the referendum Bills. I anticipated that this motion would be passed fairly quickly. I now understand that some of my colleagues may wish to make a comment on it. Therefore, I suggest that I move the adjournment of this debate and invite the Leader of the Government to move that it be made an order of the day for a later hour of this day so that the Government can proceed to deal with and dispose of the Bills it wishes to bring on. Then, we can return to the debate on this motion. That appears to be the most sensible arrangement rather than having a debate at this stage which would interfere with the legislative program. Therefore, I move:
Question resolved in the affirmative.
– Order! I inform honourable senators that I have received message No. 12 from the House of Representatives which reads as follows:
The House of Representatives acquaints the Senate that, in compliance with the request or the Senate contained in Senate Message No. 1, the House of Representatives has agreed to resume the consideration of the Bill intituled ‘A Bill for an Act to Establish a Legislative Drafting Institute’, which was transmitted to the House of Representatives for its concurrence during the last Session of the Parliament, the proceedings on such Bill having been interrupted by the prorogation of the Parliament.
JAMES F. COPE Speaker
House of Representatives, Canberra, 13 March 1974
Orders, shall have effect notwithstanding anything contained in the Standing Orders and shall take effect on and from Tuesday, 12 March 1974.
These are the proposals of the Government in regard to the times of meeting of the Senate. Without going into the precise mathematics of the proposal, I mention that the Government has shifted to the position of hoping to sit earlier than was customary for many years. For many years the Senate used to meet at 3 p.m. on Tuesday, sit until 5.45 p.m., return at 8 o’clock and then sit until 10.30 p.m. On Wednesdays the Senate met at 3.00 p.m., sat until 5.45, resumed at 8 o’clock and sat until 1 1 o’clock. On Thursdays the Senate met at 1 1 a.m., sat until 12.45 p.m., resumed at 2. 1 5 and then sat until 5.45 p.m. In latter times the Senate sat on the Thursday night from 8 p.m. to 1 1 p.m. to deal with General Business. For many years after I came into the chamber the Senate used to rise at approximately 4.30 p.m. on Thursday afternoon. The hours then, whatever they might appear to be when written down, were quite short. The Government is proposing hours which are substantially longer.
The proposal is that we start at 1 1 a.m. on Tuesdays, sit until 1 o’clock, resume at 2 o’clock and finish at 6 o’clock. On Wednesdays we will start at 2 p.m., sit until 6 o’clock, resume at 8 o’clock and then finish at 11 o’clock, that being the broadcasting day. On Thursdays the Senate will sit from 1 1 a.m. until 1 p.m. and from 2 p.m. until 6 p.m. We think these hours are reasonable. It has been suggested to me that it will probably meet the convenience of some honourable senators, for example those from Western Australia, to stop at 5 p.m. on Thursdays. Frankly, the Government’s position is that we would like to keep away altogether from sitting at nights. I think it is too much to suggest at this stage that this be done on a broadcasting day so we will continue to sit until 1 1 p.m. on Wednesday night.
If we adopt the hours which I have suggested it will mean that the Senate will be sitting much earlier than was customary. On top of that we have the known fact that Senate committees operate and other work is done during those hours which precede the meeting of the Senate. If these hours are operating honourable senators will be here in the building at 9 o’clock on Tuesday morning and will work through until 6 p.m. Some activities usually take place on Wednesday morning. Honourable senators will be here. Party meetings are held on Wednesday morning I think by most, if not all, of the parties. Similarly, on Thursday morning we would normally be here working on a committee or engaging in other activities.
The Senate, as we know, is doing a great deal of committee work. Some time will be left for sensible arrangements to be made concerning the Committee work. Some of them can sit at night. The Estimates Committees, when they were operating, sat at night. Other committees are endeavouring to find a period when they can sit because the Senate has taken the attitude that it does not want the committees to be sitting during the time when the Senate is sitting. I would not like this to be converted into some argument about the Government’s not wanting to sit the hours which others say they sit and then have an undesirable tussle with some saying that they should get a medal because they want to sit longer hours. We have heard these arguments too often. What we really want to do is get some rational sitting hours. The Senate has not really worked harder than it is working. I think everyone realises that. It is a matter of what is the sensible thing to do. If one is here in this place, whether on a committee, in the Senate or engaged in other activities, from 9 a.m. to 6 p.m. then that is a fair day. On occasions honourable senators have to sit at night on committees. It is reasonable to assume that we are sitting and working much longer hours than most of the community works when one takes into account these other activities I know that there are honourable senators opposite and honourable senators on this side of the chamber who are not in the Ministry but who are working on not only parliamentary committees but also Party committees. Ministers attend Cabinet meetings and Cabinet committee meetings. There is an enormous amount of work to be carried out as everyone except those people outside who write about the hours of the Senate would know.
It is quite clear that the hours which I am proposing cover only a part of the operations of the Senate. The proposed hours are in substance longer than those we would normally work. There has been a considerable increase in the sitting hours. I know there are some suggestions that we should go back to sitting at night but that would cause complications for the committees of this Senate and the joint committees which want to sit at that time. I suggest with great respect that it is time we moved on to a rational disposition of the hours of sitting. The idea of the Senate as a whole sitting at night was inherited from the past when only the leisurely class could afford to be in Parliament. At that time members of Parliament were persons who may have been professional people who would do their jobs during the day and then go to the Parliament at night as they used to do in England and in the
Legislative Council in New South Wales. We have got away from that sort of thing. This is a full-time operation and the hours ought to reflect it. I think that if we were to adopt the proposed hours the Senate would be able to operate efficiently.
If we need further sitting time- I think we may well need it at some stage- the solution would be to sit additional days and have shorter recess periods. I think that finally this Parliament will be driven to that situation. Ours will be like the Houses of Parliament in England and the United States and the actual days of sitting each year will increase greatly. But I think it is a foolish endeavour to try to sit absurdly long hours on the days that we are here and to disrupt the other activities of the Senate concerning committees and so forth which would necessarily occur if the sitting hours were lengthened and we sat at night instead of being rational about this matter. We all know the problems that we can get into by adopting that practice and the problems that arose with committees sitting last year. I hope that this debate will not be conducted on a level whereby it will be suggested that the Government does not want to sit as long as has been suggested by the Opposition or someone else. Let us approach this matter with a view to seeking the most rational distribution of time according to the volume of work that has to be carried out.
-On behalf of the Liberal-Country Party Opposition I intend to move an amendment shortly which will have the effect of asking the Senate to agree to sit on Tuesday and Thursday nights from 8 p.m. till 10.30 p.m. Apart from that, the hours suggested by the Leader of the Government in the Senate (Senator Murphy) would remain unaltered. The acceptance of my amendment would mean an increase in sitting times from 19 hours to 24 hours a week, which is an additional 5 hours a week. I intend to speak in a low key on this matter. I do not think this is a matter about which we need to become overexcited. But I am very conscious, as are all my colleagues, that for some IS months- I say this in a quite low key- Government Ministers have continually accused the Opposition in the Senate of being obstructive, frustrating and filibustering. I have just as constantly, week in week out, denied those statements. I am pleased to understand that most electors do not believe we are obstructive.
The Senate is quite different from the other place. In the other place the opportunity to speak is limited both as to the number of times and as to the length of time. In the Senate we have always been somewhat jealous of the fact that every senator who wishes to make a contribution generally gets the opportunity to do so- some briefly, some at greater length. Normally, at the end of each autumn and spring session the Senate program gets crunched up and a number of unfortunate things happen. I do not blame the present Government for that sort of situation arising. I recall that in 1972, I think it was, the Senate quite rightly adjourned at the end of the autumn session and left on the notice paper quite a number of Bills which had not come in here early enough. Last year the guillotine had to be put down to close off the business at the end of each session. I make no further reference than that.
– You know why.
-If the honourable senator wants to get into a row, let him interject like that, and we can have a nice big argument until 10.30 tonight. I said that I would try to do this in a low key and to put my observations in that vein, lt is because of what has happened previously that the Opposition feels quite strongly and genuinely that we should endeavour each week as far as possible to go home basically with a clean notice paper; that is, the Bills that come in this week should be dealt with, as far as possible, by the following week, with the normal adjournments being taken by the Opposition. We do not want to get into the end of term situation in which the pressure becomes too great. When people are working under too great a pressure tempers become frayed and often things are said which on reflection people on both sides regret were said.
How are we to accommodate the desire of honourable senators to participate to the full and to have a reasonable time to make a contribution? The fact that any one of us may feel that another person is taking too long or is talking nonsense should not take away that person’s right to participate and to speak at reasonable length. We have reached that quite genuine conclusion although it may be a drag and may involve sitting longer hours than we are accustomed to. We should not forget that last year 223 Bills were either passed by or introduced into this chamber. I do not know how public the document is, but I have seen a list of Government legislation which I understand the Government would like passed this session. It is not the maximum but only a sort of minimum. The total is 65 Bills, to which must be added the Bills stood over from last session and the measures foreshadowed in the Speech from the Throne.
I anticipate that in this autumn session the Government is likely to put up to the Senate at least 100 pieces of legislation- something of that order. I anticipate that there will be a Senate election before 30 June, with the date depending on whether one relies on the judgment of Mr Whitlam, Q.C., or that of the High Court. The program of sitting weeks thus is shortened. I assume that the Senate will rise for the Senate election even though the other place may not. Estimating the program of sitting weeks which we are likely to have, we have already sat 2 weeks of the current bracket of 3 weeks and we run into the rather funny period over Easter. I imagine that we will sit 3 days each week. It is suggested that there will be a Monday sitting and a Friday sitting to keep to the 3-day week practice. It appears that, during this period of sitting, with the forthcoming Senate election, the Senate will not be sitting the number of hours that it sat last autumn session- it is a matter of straight mathematics- unless it is the Government’s intention not to have recess weeks.
How do we sit the extra 5 hours a week? The Leader of the Government suggested that we could sit on Mondays or we could take up the 5 hours on Fridays. I do not resile from either of those propositions. I have always understood that one was elected to the Senate to work in the Senate, that one’s first duty was to work in the Senate and that if one had time over from one’s work in the Senate one could indulge in ministerial office, Senate committee work, parliamentary Party work, parliamentary Party committee work, Party organisation work in the electorate, etc., but that one’s first and foremost duty was to work in the Senate. All the rest is subsidiary to one’s duty to work in this place. Therefore, I would not oppose the Government’s proposition, if it wishes to put it, that we sit Mondays and Fridays. I am prepared to work 5 days a week. I am prepared not to have recess weeks if the Government’s legislative program is a heavy one and it it believes, as we do, that there should be full and deep consideration of its measures.
I say this not in a Party political sense, but the Government is introducing a lot of legislation which it would say is of a reformative nature but which I would classify as of a revolutionary nature. I have used the word in the wrong connotation. I hope the Leader of the Government does not misconstrue my use of that word. It is introducing in a massive number of areas legislation which needs to be considered in some detail and in some depth. It is not as if we were sitting a normal run of the mill session discussing basic Bills to change Imperial measurements to metric measurements and things like that. Legislation in relation to trade practices, the Australian Industry Development Corporation, the finance corporation and the petroleum minerals authority has been foreshadowed. All these Bills and the others which have been foreshadowed are matters on which the Opposition will want to put a strong view in some depth. It would be hypocritical of the Opposition to claim a right to look at legislation in depth and at the same time say that it is not prepared to sit longer hours and extra days. We assert that the Opposition has the right of scrutiny. If we assert that right we must pick up the obligation to be prepared to sit longer. I am one of those people who is sick and tired of people in this country talking about their rights and not their obligations. If one has a right, one has a correlative obligation. We assert a right. Therefore, we are prepared to accept an obligation.
I am not sayng this to score points off the Government. I do not wau: 10 wear a halo. Senator Murphy suggested a medal; I think a halo might be the more appropriate terminology in this spiritual place. I do not say this in that sense; I say it because there is a very deep feeling among Opposition members that they have a right to do certain things. Therefore, they are prepared to accept their obligations. Consequently, I move:
-The Australian Democratic Labor Party finds itself in a slightly different position to both the Government and the Opposition. They are parties of much greater numerical strength. Therefore, their approach to the time which must be committed to debate in this chamber may be different to ours. We have a position of some determination in this chamber. I think that must be accepted as a mathematical fact. It is a position which demands that our Party give the maximum consideration to the legislation which comes before the chamber because in so many cases our vote can be decisive. We must accept that as it is accepted in this chamber. The legislative program of the Government is extraordinarily heavy and it is of a fundamental character. So much of the legislation coming here is of a nature which we have not seen before. It affects many areas of life in a very extreme way. Therefore, the attention of the Senate in the greatest possible depth to legislation of this character is a necessity.
The Australian Democratic Labor Party always tries to retain a physical presence in this chamber. That is not always easy with the small numbers which we have, with the demands from other areas and with our attempts to serve on committees. Very often our physical presence is out of proportion to our numerical strength. I have often noticed that we may have two or three members in the chamber when other parties, with much greater numbers, may have no more or may have even less.
– Do not dob them in.
– I am not doing that. Very often those members of other parties have committee commitments and things of that character which make it impossible for them to attend.
- Mr President, I am attempting to make my speech.
– Order! Senator Byrne is claiming my protection an I extend it to him.
– I am not reflecting on any other party here. Honourable senators have commitments outside the chamber. We realise that. All I am saying is that we attempt to retain a strong physical presence in this chamber. Of course, we also have our commitments outside Parliament. They are legitimate commitments of a political character which are part and parcel of parliamentary representation. As Senator Withers said, in the balance of demand perhaps Parliament is more important. But one cannot discount the proper and legitimate demands from outside this Parliament in the interests of the electorate and of meeting one ‘s electors.
We want to help a proper consideration of the legislation which comes into this chamber. At the same time we shall try to avoid the undue stretching of our physical resources so that when things come before us we will be equipped, physically and otherwise, to examine them as they should be examined. I foreshadow an amendment to the amendment moved by Senator Withers. In formal terms it is to delete the word ‘Thursday’ in paragraph 2. In other words, the Australian Democratic Labor Party contemplates that we will meet until 10.30 on Tuesday nights but until 6 o’clock on Thursday nights.
– Order! Senator Byrne, are you forecasting an amendment to Senator Wither’s amendment?
-Yes, exactly. After Senator Withers’ amendment is disposed of and if it is not carried, then I shall move that further amendment. Perhaps it is a compromise amendment, but I think it is one which will reasonably satisfy the 2 points of view. Senator Murphy thinks that the day from 9 o’clock to 6 o’clock is long enough and probably that is true. Nevertheless, he can understand our position. Senator Withers feels that the Senate has a duty corresponding to its entitlement to look at legislation. At least in part our amendment will satisfy Senator Withers’ requirements. Therefore, without further ado I indicate that if the opportunity presents itself we propose at the appropriate time to move this amendment, which would mean that the sitting hours of the Senate would be until 10.30 on Tuesday nights and until 6 o’clock on Thursday nights. I shall move that amendment at the appropriate time.
– I can well appreciate the desire of the Leader of the Government in the Senate (Senator Murphy) to amend the sitting hours of last session. I feel that sitting in the hour from 6 p.m. to 7 p.m. did not work. I can well understand why the Leader of the Government is moving this motion. I do not think the sitting hours of last session were a success. We had a pretty heavy work load in the last sessional period and, as usual, we had to have longer sitting hours. I understand that the Leader of the House in another place (Mr Daly) has indicated a program of sitting times until 13 June. At the time of making that announcement, he also said that the Parliament would be sitting longer hours and would have a heavier work load than in previous sessional periods.
While I can understand Senator Byrne’s feelings on this matter, I believe that at the beginning of the session we should sit longer hours to avoid the mad rush that we have at the end of sessional periods. I well recall Senator Murphy saying, when he was Leader of the Opposition, that we should not have late nights and a mad rush at the end of sessional periods. Since he has been Leader of the Government in the Senate he has been able to avoid the late nights but he has not been able to cope with the rush at the end of the sessional periods. Therefore it is the desire of my Party that we should sit for 2.5 hours on Tuesday nights and for 2.5 hours on Thursday nights. This would mean that we could get in an extra 5 hours a week. I hope that despite the deluge of Bills that will come before the Senate during this sessional period we will be able to avoid the usual mad rush at the end of the period. For that reason, Mr President, the Country Party supports the amendment moved by the Leader of the Opposition (Senator Withers).
– in reply- May I say shortly that the Government adheres to its view and therefore will vote against the proposition to leave out the words in my motion which define the hours. That is consistent with out announced decision. We will oppose the amendment and will see what happens afterwards. We intend to adhere to our decision. A strong point was put to me by one of my colleagues, the logic of which I think is unassailable; it is that if members of the Opposition want to consider the legislation as they say they do, and want time for this purpose, they should not be asking to spend their time in this chamber making long speeches. They should be using that time to consider the legislation. Some consider that talk is a substitute for consideration and work. It might be much better if the talking time were reduced and the working time increased.
That the amendment (Senator Withers’) be agreed to:
The Senate divided. (The President- Senator Sir Magnus Cormack)
Question so resolved in the negative.
- Senator Byrne has indicated that he wants to modify my proposal by moving, in effect, that the Senate adjourn at 5 p.m. on Thursdays. If we treat that as being carried, it involves a consequential amendment to alter the time at which we consider General Business. We would not want to reduce the time for consideration of General Business to an hour and a half. May Senator Byrne’s amendment be treated as incorporating those consequential changes?
– Order! Senator Byrne must move his amendment and I hope his remarks will make this point clear.
– In terms of the amendment circulated by Senator Withers, which was defeated, I move as an amendment to Senator Murphy’s motion:
The amendment is confusing in the reading, but I understand that it will have the desired effect. I think it will give expression to the developing feeling in the chamber, namely, that on Thursdays the Senate should adjourn at 5 p.m. Apart from that change, the amendment stands as it was.
– I second the amendment.
Amendment agreed to.
– All honourable senators seem to be quite clear in their minds about the motion. I now put the question: ‘That the motion moved by Senator Murphy, as amended by Senator Byrne, be agreed to’.
Question resolved in the affirmative.
Sitting suspended from 12.53 to 2 p.m.
Debate resumed from 7 March (vide page 130), on motion by Senator Murphy.
That the Bill be now read a second time.
- Mr President, we have heard a great deal about justice and democratic rights over the past weeks. Last Sunday the Prime Minister (Mr Whitlam) made a television appearance and intoned further platitudes to the effect that he and his Caucus were going to make Australia a veritable Utopia, a model of democracy in the eyes of our neighbours and the world’. That is, if only he could alter the Constitution. Not only does he want to alter the Constitution in several aspects now, but also he wants to make it easier to alter the Constitution in the future. In fact, if the Labor Party were to have its way entirely the Constitution would be so easy to alter that there would be little point in having one. Successive governments could just juggle it around to suit themselves.
One could be forgiven for imagining that the Government has insisted on bringing forward its string of referenda proposals to divert attention from the real problems facing Australia. I believe that this was clearly demonstrated during its half-hearted campaign for control over prices and incomes. Whilst awaiting the results of the referendum the Government felt justified in doing nothing to curb inflation. When it lost the referendum, instead of settling down and determining to find solutions to the problem, the Government wrung its hands and bemoaned the electorates’ stupidity with the result, today, that inflation is roaring ahead without so much as a drop of water to dampen it down.
The Prime Minister cannot be held to blame entirely. After all, his time has been so taken up preparing for overseas tours and referenda that he has not had much time left over to give to affairs of state. What labels this Bill emphatically as a deceitful, double-dealing, piece of legislation is that the Government has seen fit to lump together under one misleading title 2 very different provisions. One provision is to give electors in the Australian Capital Territory and the Northern Territory the right to vote at referenda. The second provision facilitates altering the Constitution by requiring an overall majority of electors with a 50-50 agreement between States instead of the present 60-40 basis between States.
The Liberal Party supports the first proposition. It is obvious that every elector in Australia should have a say on whether or not the Constitution is to be altered, regardless of where those electors live. If one were to take the long title of the Bill at face value one would think that this was the sole aim of the Bill. Mr Deputy President, let me remind the Senate of the long title of the Bill which, as you know, phrases the question to be put to the people. The title of the Bill is:
To facilitate alterations to the Constitution and to allow Electors in Territories, as well as Electors in the States, to vote at referendums -
I do not know where that word ‘referendums’ comes front on proposed Laws to alter the Constitution.
I believe that most Australians will want to give voting rights to the Territories. As against that, I believe most Australians will hold grave doubts as to the advisability of making it easier for Governments to alter the Constitution. The framing of this legislation brings into doubt the Government’s sincerity and honesty. It has lumped these 2 proposals together either because it does not really want those living in the Northern Territory and the Australian Capital Territory to be given a vote on proposals to alter the Constitution, or because it is hoping to float through its proposals to simplify altering the Constitution on a wave of sympathy for the electors in the Territories. Either way it does not say much for the Government ‘s integrity.
Let me again repeat what I said when this Bill was before the Senate last year: The Constitution, which was drawn up at the end of the last century, was a compact between all the States. It was not imposed upon them from above or without but resulted from a decision taken for the benefit of all. Undoubtedly a very strong reason for agreement by the States was that for any proposed changes to the Constitution a majority of States would be required to signify their approval. It is not for the Commonwealth alone to make decisions affecting the Federal structure. The States are entitled to play, and indeed, must play a major role in any changes proposed to the Constitution.
The Government talks of justice. I ask: How just is this Bill? Is it just for the 3 populous eastern States to have the power to determine issues which might affect only the 3 less populous States? Is it just for the 3 less populous States to be able to band together to defeat issues affecting only the larger States? Is it just that the Commonwealth Government which exists purely because of the goodwill of the States should continue its quest for State powers? Is it just that residents in the Australian Capital Territory and the Northern Territory should be denied their right to vote on referenda because the ALP will insist on this conglomerate Bill?
We will support the second reading of the Bill. When we come to the Committee stage, I intend to move for the deletion of clause 2 (c) and, if that amendment is carried, I intend also to move to alter the long title of the Bill so that it bears some relationship to the purpose of the Bill. This is the amendment which was moved in the House of Representatives and the Senate when this Bill was discussed last year. It is the amendment which again would have been moved in the House of Representatives last week if the Government had not ruthlessly used its numbers to guillotine debate on the Bill.
May I just say 1 or 2 words in conclusion? Yesterday Senator Murphy and Government senators said several times that it was undemocratic for the Senate to take action which would possibly have the effect of preventing a proposal which the Government wished to put before the people being put before the people. I make the short point that the Government as a government has no power to submit referendum proposals to the people. Under section 128 of the Constitution it is the Parliament which puts a proposal to the people. Section 128 of the Constitution does not state that if the Government decides to put a matter before the people and the Senate twice within an interval of 3 months decides to reject the proposal, the Government may then submit its proposal to the people. Section 128 of the Constitution uses the word ‘House’. It states that if the House twice passes legislation with an absolute majority and that legislation is twice rejected in the Senate within the stipulated interval of time, then the Governor-General may submit the proposal to the people by way of referendum.
If we are to accept the argument put yesterday by the Government senators that we would be acting undemocratically in not allowing the proposal to go to the people then I ask this quesiton and I would like to hear the comments of Government senators on this proposition when they reply: If a Bill which would submit a proposal for an alteration of the Constitution to the people should pass through the Senate with a constitutional majority of 31 votes, go to the House of Representatives, and be rejected and then, after an interval of 3 months, again be passed by the Senate with a Constitutional majority of 3 1 votes, would the Government give an absolute undertaking that it would advise the Governor-General to submit that proposal to the people?
– That happened once before, did it not?
-That happened once before in 1914. As I understand the position, the Governor-General’s advisers advised him not to submit the proposal to the people. I think that it is good constitutional law that a proposal, from whichever side it comes, is submitted to the people as a result of advice tendered by the Executive Council to the Governor-General. We know that under section 28 the GovernorGeneral has a discretion, a discretion to be exercised in accordance with the possible advice tendered to him by his Ministers. That is why 1 am saying that if the Government’s proposition is that merely because a Bill is passed by the House of Representatives it is entitled to go to the people and we should not oppose it because we would be undemocratic, surely the boot is on the other foot if the Bill twice passes this chamber.
That is why when the Government replies I should like to know whether the Government will give an absolute assurance in accordance with the democratic principles propounded by it. I would like to know whether if we pass a Bill twice and it is twice rejected by the House of Representatives the Government will be prepared to advise the Governor-General to submit the Senate’s proposals to the people. I cannot imagine any government being prepared to give that undertaking. If the Government is not prepared to give that undertaking let us hear no more talk about the Senate not being democratic in allowing propositions to go to the people. As I said earlier, we will not oppose the second reading, but at the Committee stage I will be moving an amendment to clause 2 of the Bill.
– When this Bill came before the Senate last December the Opposition insisted upon an amendment to the long title so that it would be clear that the major intention was to allow electors in the mainland Territories to vote at a referendum. The Government subsequently disallowed the amendment in the House of Representatives and by so doing telegraphed to the Australian people that a vote to the Territories was merely chocolate coating on a bitter pill. Labor’s hope is that if the people like the chocolate they might swallow the pill. We have been asked to approve a series of constitutional alteration Bills which have been shown in debate to be unacceptable in that broadly they represent a plunder of State rights and an attempt to centralise power in Canberra. The Government knew that the proposals would encounter strong opposition. So, in an attempt to overcome what it fears will be a no vote by the people, it seeks to change the longstanding method by which alterations to the Constitution can be effected. An attempt to fiddle with the method is no less objectionable than other proposed alterations.
It is not difficult to understand why the Government wants to be able to change the Constitution if only three of the States instead of four give their approval. One reason is that three of the 6 States currently have Labor Government, and voters in those States might reasonably be expected to support Federal Labor proposals. If this is the Government’s thinking, I believe it has lost touch with reality. There is another significant reason, and as a Queenslander I cannot over-emphasise it. The 2 highly populated States, New South Wales and Victoria, naturally have a tremendous influence on overall voting under this new proposal. If only one of the smaller or less populated States supported the big States’ view a referendum would be carried. This would make lobbying of small States by the large States a much easier exercise because only one of the 4 small States instead of two would need to approve of the change.
The reaction of the majority of Australian voters when they vote at the referendum is very likely to be one of annoyance at a government which has virtually prevented them approving referenda voting by electors in the Territories. They will be sorry to bring about the defeat of that proposition. But they will do so nevertheless, unless the Government is prepared to accept the amendment which Senator Withers, as Leader of the Opposition, proposes to move at the Committee stage. I indicate that the Australian Country Party will support the Opposition’s amendment at the Committee stage.
-The Bill before the chamber is perhaps different from the other proposed referendum Bills because while they deal with specific heads of power this Bill relates to the actual machinery of the Constitution itself and to the mode of altering the provisions of the Constitution. In that sense it is a much more fundamental Bill than any of the other referenda Bills that have already been presented. Therefore it must be regarded with the greatest seriousness by members of this chamber and by members of the Parliament generally. I feel that the approach of the Government in relation to these Bills can be considered as a total misconception of the very nature of the compact of federation.
Federation was essentially a compact between 6 colonies, then becoming the States, to be participants in a Federal body under a written Constitution. In other words the identity and significance of the States was possibly more important than the identity and significance of the people who comprised the 6 States in the aggregate. That concept was maintained in the written Constitution and it has always been a fundamental part of it in the creation of this body which is here substantially to represent the States and to protect the States. Therefore any departure from that in any way particularly by this chamber is a departure from the primary and fundamental concept of the Constitution itself. Insofar as the Constitution is a solemn compact, a solemn contract, in which the States have this most important role, it seems to me to be basic logic that if that instrument is to be subject to change and if the States are to have a continuance of their primary significance there must be an overwhelming vote by the States as such for or against any alteration to the compact of federation, the Constitution itself. It would appear to me to be a departure that if we are not going to insist upon a vote by the majority of States to vary the Constitution but enable the referendum to be passed on an equality of State votes, together with a majority of the aggregate of the people ‘s votes it will be, to use my original term, a misconception of the very nature of the compact of federation.
Having said that I think it is worth while to point out that the history of referenda in this country illustrates one or two significant things. Senator Maunsell referred to this matter very briefly. The first aspect is the extraordinary power, effect and influences of the major States. I have taken the figures for the referenda that have been held, apart from the conscription referendum and excluding the last referendum on prices and incomes and, I think, Aborigines. In 12 of those referenda the States voted three-three. These are the referenda on which I ask honourable senators to concentrate their attention. In 12 of the referenda held until 1972, excluding the conscription referendum, the States voted threethree. If the figures which I have taken out are correct, where the States voted three-three, New South Wales was on what I call the winning side on each occasion. That is, if the referendum was defeated New South Wales had voted no and if it was carried New South Wales had voted yes. New South Wales was on the correct side on the whole 12 occasions. Victoria was on the correct side on 10 occasions. Queensland has never been on the correct side. It has never had a win at all. South Australia has been on the correct side on 4 occasions, Western Australia on 3 occasions and Tasmania on 6 occasions.
These figures indicate to me the tremendous and predominant influence of the 2 major States. Another interesting figure is that in ten of those 12 referenda to which I have referred New South Wales and Victoria voted the same way. Therefore on 10 occasions Victoria was on the winning side with New South Wales and on the 2 occasions when it voted against New South
Wales it was on the losing side. The evident lesson which can be drawn from those figures is the very powerful and predominant position of the major States.
– You are talking to the wrong Bill.
-No, I am talking to the Bill concerning the mode of altering the Constitution. The Bills have been taken in a slightly different order from the one originally contemplated. Therefore if we are now going to cut down the necessity for a majority in four of the 6 States and alter it to three, this will give an even more powerful influence to the 2 major States.
I think that the representatives of the minor States in this chamber should be very alert to the implications of the proposal which are implicit in the legislation which is before us. It is on that basis that I appeal to honourable senators to give their consideration seriously to this Bill and to see whether there is any element of prudence or wisdom at all or whether there is not such a fundamental change being effected in the provisions of the Constitution by this means that the original concept of federation will be lost and destroyed completely. It is a fact of statistical life that a State such as New South Wales or Victoria with a big population now will continue to expand out of proportion and that the gap between them and smaller States will become even wider as the seasons creep along the years. For that reason the position is going to be aggravated as time goes on. In these circumstances I think it is unwise- extremely unwise- for this proposal even to go to the people. I do think, however, that if that is the intention of the Government, the people will be heard on it. But I think that the people in the small States should be very careful in this regard. I think even those who are the residents and the electors in the larger States would not be very keen to feel that they had such a controlling and predominant position in the Federation as would dislocate and disturb the whole balance originally contemplated in the prime document.
Therefore the attitude of the Democratic Labor Party is this: We will support what Senate Withers said the Opposition would propound. We will support the second reading of the Bill. We support that concept which would give all Territorians the right to vote on propositions altering the Constitution because, after all, variations in the Constitution are matters of great concern to them. They are Australians and they should have the right. Although we will support the second reading of the Bill, at the Committee stage we will support the amendment which has been projected by Senator Withers to provide for the restoration and maintenance of the 4 to 2 ratio and not resort to the 3 to 3 distribution in which we see such fundamental dangers. I do not think the occasion calls at this stage for a longer speech than this.
We say that if you are going to disturb the Constitution, if it is a document which is so important in determining the relationships between the Commonwealth and the States and the States inter se, it should only be done by a majority of the States indicating in a clear and decisive manner their preparedness to have that variation made. It is not fair, it is not equitable and I think it is historically unwise to permit one major State and two other States to be able to determine what shall be the destinies of this nation. If this is a compact primarily between the States I think it must take a majority of the States to disturb it. After all, in this chamber, which is a States chamber, by the nature of its constitution if a resolution is propounded and there is a division of equal numbers the resolution is lost. That is in pursuance of the concept of federation. We require a majority here before a resolution is carried. I think we can and should do no less in relation to an alteration of the Constitution. I therefore support the proposal which was enunciated by Senator Withers and which it is indicated will be supported by the Australian Country Party.
– There was some comment on the word ‘referendums’. The note I have is this: Some dictionaries state that the plural of referendum is ‘referenda’. That is the case in Webster, Collins and the ‘Authors and Printers Dictionary’. On the other hand, Random House says that the plural is optional but gives ‘referendums’ as first choice. The English Oxford dictionary makes no comment on the plural of referendum. Fowler states that both can be used but ‘referendums is preferable. There would appear to be ample authority for the use of the word ‘referendums’, as the plural. It would seem that the basis for using ‘referendums’ is that the word has become anglicised and also as stated in Fowler, that it avoids some confusion that might arise from the use of the word ‘referenda’. Frankly, I prefer ‘referenda’.
The Leader of the Opposition (Senator Withers) has answered the question which he posed himself when he said that no government would give an undertaking to put a proposition which had been put twice through the Senate but which was not accepted in the other place. My answer to his question is that I think we would want to see what it was all about before making such a decision. The other points which were raised were put in a curious way. I find that Senator Byrne is still pursuing what seems to me to be a complete fallacy which he pursued in the debate last year. He says that somehow it would be an injury to the smaller States if we were to put this measure to the people. I find it inconceivable that a person who believes in the right of a majority of the people and a majority of the States to alter the Constitution- that is what he says is the proper and desirable position- would oppose the Government putting to precisely that body the proposed alteration so that, if in their wisdom a majority of the people and a majority of the States decided to alter their Constitution so that in future changes could be made by a majority of the people and half the States, they would be able to do so. Who on earth would oppose that proposal?
Where does all this talk about compact come from? If the compact is that the alteration can be made by a majority of the States together with a majority of the people and the majority decides to change what the honourable senator calls the compact, how can anyone possibly resist it if those who have the wisdom and so on and those who are given the power by the Commonwealth decide deliberately to change the Constitution? It seems to me, with great respect to Senator Byrne, that he is assuming that by putting this Bill through both chambers we are somehow automatically changing the basis of decision. The basis of decision on these measures is the majority of the States. If they care to say they want to eliminate the necessity for any number of States to concur, surely it is completely consistent with the Federal compact that they may do so and they ought to be given the opportunity to make up their own minds. I can see Senator Byrne nodding his head. I thank him for his recognition of the logic of what I say on this matter.
– No, I do not acknowledge the logic of it. I intend to comment on that in speaking to Senator Withers ‘ amendment.
-The Government will resist the proposed amendment to be moved in the Committee stage. But it is extraordinary to find that after all the comments about bewildering the people with 5 referenda- that is what was said- there is inherent in Senator Withers’ proposal the suggestion that we should have another referendum. He says that we should separate the territorial proposition from the one about equality of States and we should put a further question to the people. I think they are catching up with the errors of their own arguments. I think it would be better for us to get on with this and pursue this technical exercise in which we are engaged to enable the Government to take the steps which appropriately may be taken.
Question resolved in the affirmative.
Bill read a second time.
- Mr Chairman, I seek leave to move my amendment, which is in 2 parts, as one amendment.
-Is leave granted? There being no objection, leave is granted.
The amendment is quite simple. If carried, it will give effect to the proposition which I was arguing at the second reading stage, namely, that a proposal would be submitted to the people to allow the people of the Australian Capital Territory and the Northern Territory to vote in referenda. It would not submit the question in respect of voting majorities, to reduce the number of States required for an affirmative vote from four to three. The arguments for and against putting that proposition were argued last November and they have been argued again.
– The Government opposes the amendment for the reasons which have been outlined at length- some at the second reading stage of the consideration of this Bill and some last year.
– I wish to refer to a few comments made by Senator Murphy at the second reading stage. There was a misconception in his mind as to the role the Senate is required to play in relation to a constitutional alteration. As I said on another occasion, there is no provision in our Constitution for amendments to the Constitution to be initiated by motion of the people at large, by petition, by resolution or by any approach at all. The procedure laid down is that there must be a prior legislative process. As a result of that process, the proposition then goes to the people. In other words, the Constitution contemplates that a proposition, whether propounded by the government of the day, or, as is also contemplated in the Constitution, by the House of Representatives or this chamber, should go through the legislative process as an examination of the desirability of putting that proposition to the people. Obviously that was contemplated in the Constitution. The legislative procedure is insisted upon, and it is after the passage of a Bill to the status of an Act that the proposition goes before the people by referendum. Had any other mode been contemplated, it would have been incorporated.
That imposes a very definite duty upon the Senate, the other House and the Parliament, namely, that proposals initiating referenda shall receive the scrutiny of the Houses of the Parliament. The Constitution also wisely provides that, if for some reason a proposition should not be able to find passage through both Houses, the propounder is not inhibited from presenting it to His Excellency the Governor-General, who may then elect to present it to the people. That is a different procedure from that prescribed for ordinary legislation, where a double dissolution may be the culmination and the only way of getting the voice of the people registered. That does not apply in respect of constitutional alterations. An alternative method is propounded by which, if a Bill is twice rejected, the propounder may take it to the Governor-General and have his referendum considered by the people.
Therefore, the role of this Parliament is clear. It is clearly set out and it imposes a responsibility on us. It is quite wrong to say that, because we are insisting on the prior scrutiny in terms of the Constitution and because we are insisting on carrying out our duties, in some way we are inhibiting the right of the people to be heard, as if that were the only point. That right emerges only after the Parliament, or one House, has scrutinised the legislation and it has gone through a complete or partial legislative process. In addition, what we are doing here is carrying out scrupulously the duty which is imposed on us under the Constitution. It is quite unwarranted and improper to suggest that, by insisting upon the discharge of our duties, in some way we are impeding the expression of the will of the people. I do hope that Senator Murphy will acknowledge that we are discharging with scrupulousness the role which is imposed on us and which we elect to discharge at this time and in this way.
That the amendments (Senator Withers’s) be agreed to.
The Committee divided. (The Chairman- Senator Webster)
Question so resolved in the affirmative.
That the Bill as amended be agreed to.
Question resolved in the affirmative.
Bill reported with an amendment and an amendment to the title; report adopted.
-Is leave granted? There being no objection, leave is granted.
– I move:
I indicate that the Bill, as amended, is not acceptable to the Government. I have moved this motion in accordance with the usual procedures.
– The Clerk has reminded me of one matter. It relates to standing order 242.I had it in mind. Honourable senators will realise that the third reading of a Constitution Alteration Bill requires an absolute majority of the Senate. So I order the bells to be rung. (The bells having been rung)-
– Honourable senators will recollect that on 4 December, when a Constitution Alteration Bill was before the Senate, the procedures referred to in standing order 242 were applied. In order that honourable senators will be clear in their minds, I will read out the statement which I then made, namely:
I must inform honourable senators that I ordered the bells to be rung in accordance with the requirements of the Constitution. As no division was called for on the motion for the third reading of this Bill I ordered that the bells be rung. The question is ‘that the Bill be now read a third time’.
The question now before the Senate is that this Bill be now read a third time. Those in favour say aye; to the contrary no.
Opposition senators- Aye.
Government senators- No.
– I think the ayes have it. I go on to say that as no division is called for, I think it desirable, in conformity with the Standing Orders and the Constitution, that those who are in favour will pass to the right of the Chair and those who are against will pass to the left of the chair.
– Are we dividing?
– Yes. As a division is now required, as distinct from the last time the procedure was adopted, and as the ayes are now on my right and the noes are now on my left, I appoint Senator Young teller for the ayes and Senator O ‘Byrne teller for the noes.
That the Bill be now read a third time.
The Senate divided. (The President- Senator Sir Magnus Cormack)
If the Third Reading of any such Bill shall not have been carried by an absolute majority of the Senate the Bill shall be forthwith laid aside without Question put, and shall not be revived during the same Session.
The operative phrase in that is, of course, ‘an absolute majority’. The result of the decision handed to me is ayes 28, noes 23. Therefore, the requirements of standing order 242 have not been fulfilled. I am now bound to inform honourable senators that I understand that some views may be held that Chapter 8- Alteration of the Constitution- section 128, is not applicable in these cases and that there is a conflict between standing order 242 and section 128. Therefore, I propose to hear argument on this matter.
- Mr President, the problem arises, as you have indicated. First of all, if we advert to section 128 of the Constitution we will see that the provision is:
The proposed law . . . must be passed by an absolute majority of each House . . .
That is clear and inapplicable. The next provision is:
But if either House passes any such proposed law by an absolute majority -
That has happened- and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree -
That has happened- and 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 -
That has happened- with or without any amendment which has been made or agreed to by the other House -
That is irrelevant because it does not matter which way it is done- and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree . . .
That is the position which we are considering. Mr President, assisting you, I point out that it seems to me that irrespective of which way you rule we will be in the situation that this chamber has, in substance, rejected or failed to pass the proposal which has been put by the other House. But then we come to the question of the provisions of the standing order.
– Which one is that?
– I am referring to standing order 242 which states:
Before the Third Reading of any Bill by which an alteration of the Constitution is proposed there shall be a Call of the Senate.
By leave of the Senate we passed through that stage and the motion for the third reading was put. I come now to the second sentence in that standing order which states:
If the Third Reading of any such Bill shall not have been carried by an absolute majority of the Senate the Bill shall be forthwith laid aside without Question put, and shall not be revived during the same Session.
If the motion for the third reading is dealt with in that way the Bill is just set aside. In effect, whether one treats it as a rejection or as a failure to pass -
– Or as a lapsed Bill.
– Or as a lapsed Bill-it really is immaterial. It has the same effect under section 128 of the Constitution. The matter that troubles you, Mr President, as I understand it, is the part of that provision of the Constitution which deals with how questions are decided in the Senate. It may not be troubling you, Mr President, but section 23 of the Constitution provides:
Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote . . .
That majority means a simple majority. At several places in the Constitution an absolute majority is specified but that is not so in the case we are dealing with. An absolute majority is specified in the case of a measure which has to be passed by both Houses in the ordinary course. But when we come to the case in question, at this stage an absolute majority is not spelt out. Questions here are to be decided by a simple majority. I think the Senate has so decided.
– Would you mind repeating that statement?
– Questions here are to be decided by a simple majority except where the Constitution spells out that there must be an absolute majority.
– What about a subsequent standing order that specifies it?
– This question has been discussed before in the Senate and the Senate ruled twice that the Standing Orders had to give way to the provision in section 23 of the Constitution which states:
Questions arising in the Senate shall be determined by a majority or votes, and each senator shall have one vote . . .
I suggest, Mr President, that it really does not matter much or at all, so far as the fate of this measure is concerned, what would happen under section 128. However, to resolve your dilemma as to what you do about the matter, one view would be to give effect to standing order 242. In a sense you would be saying that if you took the constitutional provision set out in section 23 of the Constitution and applied it, the question would be carried because there was the simple majority. That would give effect to the constitutional provisions. But then we have a standing order which states that if the third reading is not carried by an absolute majority you have to put the Bill aside and forget about it. That seems to me to be a reconciliation of the Constitution with the provisions of standing order 242. In other words, my advice to you, Mr President, since you asked for it, would be that you would say that the third reading had been carried, having been determined in the affirmative, but in accordance with standing order 242, it not having been carried by an absolute majority, the Bill shall be laid aside forthwith. I am sorry I regret there is a provision there which makes that solution not quite so easy as it might be.
– I think that you have to go around the mulberry bush again.
– Nevertheless, this might be the simplest reconciliation of the matter. As Senator Wright said, we have to go around the mulberry bush. The problem that arises is that standing order 242 also states that:
If . . . any such Bill shall not have been carried by an absolute majority of the Senate the Bill shall be forthwith laid aside without Question put, and shall not be revived during the same Session.
That standing order is very curious because clearly there has to be a count. To fully conform with that requirement you have to declare that it was carried. The question must be put in order to determine the numbers on either side. You would have to say that the question has been carried by whatever the votes were and then say that, in accordance with standing order 242, there not having been an absolute majority, the Bill is laid aside forthwith, and is not to be revived during the same session.
That is the best advice I can give you, Mr President, for reconciling the position. That seems to be the requirement of our Standing Orders, although the question is put in the sense of ascertaining the numbers. But it then states that the Bill has to be laid aside. I do not think it is a very satisfactory form for the Standing Orders to take. I think the constitutional provisions ought to have been more closely observed when drafting the Standing Orders and I hope that we can clear them up. If standing order 242 is observed the Bill will not be sent back to the other place; it is finished. If an alternative view were taken, that standing order 242 was invalid as being substantially in conflict with the Constitution, one would have to say that the measure had been passed, and then send it back. In either event I think the result becomes the same under section 128 of the Constitution. If, as I apprehend, you do consider that the standing order ought to be given effect to, then the simple position, I think, is to declare that the Bill be laid aside and be not revived.
– Does any other honourable senator wish to proffer some advice to me?
- Mr President, I think I should make my position quite clear. I am not prepared to proffer any advice. I think it would be somewhat impertinent if I did. I always understood that your advisers were the Clerks; that having taken their advice, you ruled, and I accepted it or dissented from it. I would have preferred to see this matter dealt with in that way. To get involved at this stage in an arid legal argument about the conflict between section 128 of the Constitution and standing order 242 will not advance the work of the Senate much this afternoon. Frankly, I do not care which way you rule because in neither case do I intend to move dissent from it.
– I do not think that a matter of this sort should be disposed of without some real consideration and I wish to submit a point of view. I waited until after the leaders from both sides of the chamber had had the opportunity of speaking. The Constitution provides in the second paragraph ‘for this case’. That is the case where either House passes a law with an absolute majority- the House of Representatives did that- and the other House rejects or fails to pass it, or passes it with any amendment to which the House of Representatives will not agree. I do not understand it to be disputed that the Senate’s action last December brought the case within that provision. Section 128 goes on to say that: if after an interval of three months the firstmentioned House in the same or the next session again passes the proposed law by an absolute majority . . .
That has been complied with -
The Governor-General may take some action.
– But in respect of an absolute majority -
– Just excuse me please. If the honourable senator will let me put it briefly and simply without interruption, he can then be heard- but I will not listen to him now. The expression requires consideration so that the position of this House will be made clear to those who have responsibility for the subsequent constitutional processes so that they may know whether to act with or without reference to the High Court. Attention should be focused, I suggest, on the phrase ‘and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree’. I understand that the proceedings to which we were led this afternoon and which were adopted were that this Senate put forward an amendment and the question will arise as to how that situation is to be judged in the light of that decision of the Senate passing an amendment, because what the Governor-General will have to concern himself with is whether that is an amendment to which the House of Representatives will not agree. So it is not simply a question of: Has it failed to pass this chamber or has it been rejected by this chamber? They are 2 alternatives but the third expression comes in there, and it is not ‘with an amendment’ but with any amendment to which the firstmentioned House’- that is to say, the House of Representatives- ‘will not agree’. The Governor-General will have to address himself to the question of what the Senate procedures mean in relation to compliance with that process as required by the Constitution.
What is the effect of the procedure in the Senate this afternoon? First of all, attention has been called to section 23, which we have debated previously; but in accordance with rulings which prevail in this chamber, a decision as to the passage of a Bill or- let me be more precise- a decision on a question arising in this Senate shall be determined by a majority of votes, each senator having one vote. The question that you, Mr President, put was whether or not the third reading of the Bill should be agreed to. I would have thought that had you looked at section 23 alone, in obedience to rulings which prevail here, you would have to say that the Bill as amended has been passed.
But then we come to standing order 242.I submit that the only construction that you can give to that, if you adhere to prevailing rulings as to the reconciliation between section 23 of the Constitution and the standing order which requires an absolute majority either to pass the third reading of a constitutional Bill or to suspend Standing Orders, is to disregard the second sentence of standing order 242.I say that if you continue to apply the rulings that have been given on the standing order on suspension of Standing Orders, because it has been held that on the passage of a simple majority, notwithstanding the standing order requirement of an absolute majority, the simple majority prevailed. By the same reasoning you are compelled to give effective operation to section 23 of the Constitution which requires that the question as to the third reading of the Bill as amended be passed by the Senate and that is agreed to.
Then if you ignore the requirement of an absolute majority as required by standing order 242, by reason of the superior force of section 23 of the Constitution, you also ignore the latter part of the standing order which says ‘the Bill shall be laid aside without Question put, and shall not be revived during the same Session’. The question in the Constitution is simply whether or not the Bill passed this House with an amendment, which it did. Then the question will be for the Government to resolve whether or not it puts it to the House of Represenatives for agreement. Therefore I submit that the President of the Senate should record the decision of the Senate as being that the Bill as amended was agreed to by a majority of 28 votes to 23. Notwithstanding the provisions of standing order 242, in accordance with prevailing rulings, the ruling the President gives is that the Bill passes the Senate with that amendment. Then it is a question for the Government as to what further action it will give to it- if your ruling on that, Mr President, is not successfully challenged by a challenge to your ruling on this matter today. I put that to you, Mr President, because I can foresee that if the Government does not wish to take the opinion of the judicial structure, the Governor-General may request that that be done, such, I believe, is the complication on a constitutional matter in which the processes of today have involved us.
– Having heard a legally qualified speaker on this question, it seems to me that the Senate should take cognisance of one question which has not yet been raised and which I think is very important to this matter. In accordance with the canons of interpretation, I think we must accept the literal and grammatical meaning of a particular section of the Constitution unless there is some ambiguity about it that would lead to such absurdities that it could not possibly be accepted. The question of the application of section 128 revolves around what the Standing Orders say. If they are in conflict with the Constitution, of course the Standing Orders cannot prevail. Therefore, we have to see what the Constitution says. Section 128 of the Constitution lays down very clearly that each House must pass the legislation by an absolute majority when it is first presented. In the case of one House rejecting it and it corning back on the second occasion, the draftsman’s words, which are very important, are:
But if either House passes any such proposed law by an absolute majority, and the other House rejects or Tails to pass it, or passes it with any amendment to which the firstmentioned House will not agree, and if after an interval of 3 months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority -
The House of Representatives did that, and it was essential that it do so- with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree . . .
In the first instance the draftsman uses the words absolute majority’, but in the second instance -
– Does it not appear that the absolute majority is required only in the initiating House?
– That is what I am trying to submit.
– Not on the first or second passage.
– No. On the first occasion on which the legislation is presented it is essential that both Houses pass it by an absolute majority. If it does not succeed in obtaining an absolute majority on the first presentation, it is essential on the second occasion that it be passed by an absolute majority in the House which considers it first. 1 suggest that the word ‘absolute’ has been omitted deliberately in relation to the decision of the House which considers it second. Therefore, I submit that the motion for the third reading of the Bill is carried and that it should go back to the House of Representatives.
– Let me endeavour to assist you a little further on the matter, Mr President. It seems to me that we get to very much the same result by whatever route we follow in relation to this matter. If section 23 of the Constitution did not raise any difficulty, of course, there would be no problem at all. I think that is clear. Section 23 of the Constitution deals with questions in this
Elace. It states that any question that arises shall e determined by a majority of votes. That is clear enough. Let us assume for the moment that full effect were given to that provision. The next matter to which we should turn our attention is: What is required for the passage of measures? The word ‘question’ may encompass a procedural question, the adjournment or the first reading, the second reading or the third reading of a Bill. Those are questions. On each occasion on which those questions are put a simple majority is sufficient to carry them.
But the issue of whether a Bill is passed is determined by the Standing Orders. The Standing Orders may say that a Bill is required to be read 3 times before it is passed. We could have
Standing Orders which provided for one reading, two readings or 5 readings; or they could provide for some other means by which this House passes a Bill. That is clear. Our Standing Orders provide that an ordinary Bill is deemed to be passed after it has been read a third time. In the case of a Bill which seeks to alter the Constitution, the Standing Orders provide that this is the way in which it is passed: There is a first reading, a second reading and a third reading; but if the third reading shall not have been carried by an absolute majority the Bill shall be laid aside.
– I am concerned about the use of the word ‘question’. Standing order 242 states that the Bill shall be forthwith laid aside without question put. What is the question that is not put?
– I suppose one would -
– There is no formal question that it be put aside? Is that it? It is automatically put aside.
– It seems to me to be automatically put aside. Obviously in some way the proposition ‘That the Bill be now read a third time’ has to be put, unless one wants to go back and withdraw the question or treat the question as not having been put. But, quite clearly, under the Standing Orders the Bill is not passed because there is an extra requirement.
– The third reading is carried, but the Bill is not passed. Is that your proposition?
-Precisely. I think that on one occasion in this place an ordinary Bill passed its third reading stage and subsequently was restored because it had not passed out of this place. After it had passed its third reading stage we actually restored it to the Committee stage, put some questions and went on again.
In giving you the best that I can to advise you on this matter, Mr President, it seems to me that the question whether the third reading is carried is one thing, but there is an extra requirement. The question you put, Mr President, was resolved in the affirmative, but since that affirmative vote did not carry an absolute majority of the Senate you should declare that the Bill is forthwith laid aside and that it will not be revived. Therefore, the Bill has not passed the Senate. That is the situation as it appears to me. I do not find in that view any conflict with section 23 of the Constitution; I do not find in it any conflict with the earlier rulings or decisions of the Senate. It is consistent with standing order 242. The measure has not passed the Senate.
– I would like to put another point of view to you briefly, Mr President. It seems to me that the argument which has been put to the effect that standing order 242 is in some conflict with section 23 of the Constitution does not stand up as a proposition. If one accepts that the Constitution contains both section 23 and section 128, it must be taken, I suggest, that section 128 qualifies section 23. That being so, standing order 242 accords with the Constitution. As it does accord with the Constitution, the position is that there has not been a failure to pass, a rejection or an amendment. What there has been is a mandatory laying aside of the Bill without the question being put. In 1951 the then Solicitor-General, in dealing with the words ‘fails to pass’, expressed this opinion:
This disagreement -
He was referring to the disagreement between the 2 Houses- may be shown in formal fashion either by rejection of a Bill or by passing it with amendments. The addition of the words fails to pass’ is intended to bring the section into operation if the Senate, not approving a Bill, adopts procedures designed to avert the taking of either of these definitive decisions on it. The expression ‘fails to pass’ is clearly not the same as the neutral expression ‘does not pass’, which would perhaps imply mere lapse of time. ‘Failure to pass’ seems to me to involve a suggestion of some breach of duty, some degree of fault, and to import, as a minimum, that the Senate avoids a decision on the Bill.
The Senate has not avoided a decision on the Bill; it has attempted to take one. My submission is that in this case there has not been a failure to pass. The consequences of the action which has been taken by the Senate this afternoon are as follows: Firstly, Mr President, you should rule in accordance with standing order 242 that the question not be put and that the Bill be laid aside and not be brought forward again this session. Secondly, that the Bill has not, in accordance with the opinion that I have quoted, failed to pass this chamber. Therefore, under section 128 of the Constitution it may not be put to the Governor-General for the exercise of his prerogative in accordance with that section of the Constitution. Those were the points that I wished to make.
– Does any other honourable senator wish to address me on the matter? If not, I will ask the Senate to bear with me whilst I have a discussion with my Clerk. (The President having conferred with theClerk)
A a result of a physical division of the Senate in order that I could discern where the numbers lay and who was in favour of and who was against the motion, the tellers informed me that the votes were ayes 28, noes 23. I did not immediately announce the numbers because of matters which have been engaging the attention of honourable senators for the last quarter of an hour or so. Therefore, I feel bound to make some observations and 1 do so as follows: I gave consideration to this matter earlier in the day, but it was not possible for me to anticipate, nor proper that 1 should even attempt to anticipate, what the decision of the Senate would be. I asked the Senate, therefore, as I have explained to honourable senators, to divide so that I might know where the numbers lay. I now know the numbers and so does the Senate. I invited advice from honourable senators. As the President of the Senate I cannot attempt, nor should I attempt, to predict what would be the constitutional opinion of others who are not within the Senate. I feel that I am totally and absolutely bound by the orders of the Senate. I feel that I am bound, therefore, to uphold standing order 242 and to rule that the Bill be laid aside. If any honourable senator objects to my ruling the forms of the Senate are open to him. So in accordance with standing order 242, the Bill, not having’ an absolute majority, will be laid aside.
Debate resumed from 6 March (vide page 97), on motion by Senator Murphy:
That the Bill be now read a second time.
– If ever a Bill has been misnamed, I suspect that it is this Bill. It is described by its short title as a democratic elections Bill and it purports to be a Bill by which a question will be submitted to the people of Australia by referendum to amend the Constitution whereby it is stated that the members of the House of Representatives and all the parliaments of the States shall be chosen directly and democratically by the people. As I say, when one examines the provisions, one finds that it is a misnomer to call this Bill a democratic elections Bill. It is a Bill which is a confidence trick sought to be worked on the Australian people. It is part of a calculated plan to produce a malapportionment of electorates so that the Labor Party will be secured in office, as the present Government sees the position, almost in perpetuity.
As I have said, the title of the Bill is a farce. It is far from reality to call the Bill ‘s proposals ‘democratic’ Indeed, the Bill is the antithesis of democracy. It is not a very clever deception. But it illustrates the trickery of the Prime Minister (Mr Whitlam) and also the hollowness of his democratic pretentions. It shows also the absolute inconsistency of the Government because it is so apparent that what was being urged by this Government as the hallmark of democracy in 1973 can be discarded and regarded as being of no account in 1974 when we have a Bill which preaches precisely the opposite. May I say quite simply that the major provision of the Bill is to have an amendment of the Constitution so that the House of Representatives and the Parliaments of the States will be chosen from electorates which are relatively equal in size on the basis of the number of people who live in the electorates? In short, what the Bill endeavours to enshrine in the Constitution is an equal division of electorates based on population. So in each State of the Commonwealth you divide the total number of electors living in the State by the number of electorates to obtain the size of each electorate. That is a novel concept that has never applied in Australia before. What has applied in Australia in the past is that the electorates were divided up on the basis of the number of electors so that there was roughtly the same number of electors in each electorate.
In 1973 the Government introduced a Bill which was twice rejected by the Senate and which sought to equalise, almost to the point of absurdity, an equality of electorates on the basis of the number of electors within each electorate. That of course is the traditional concept of one vote one value. The only point which really raises itself for argument between the 2 segments of the Parliament on that issue is the extent to which we should allow a tolerance from the quota which ought to be the equal number throughout the State, whether we should permit a tolerance of 10 per cent up or down on the basis of geographical or population consideration or should we allow a margin of a lesser percentage. This is the only real distinction. The Opposition parties have always maintained the principle of one vote one value but in a practical sense so that you can have a period of, say, 10 years within which you will have a rough equality throughout that period and not require a census and a redistribution every 3 years.
The point I make is that the 1973 Bill was a Bill which sought to maintain the principle of one vote one value. I simply refer to one or two words which were said in the course of that debate to illustrate the standards which the Labor Party adopted. In 1973 Mr Daly said:
The principle of one vote one value must be established as the fundamental objective of redistribution. These are principles which are enshrined in the platform of the Australian Labor Party and our efforts to bring them about when in Opposition are well known.
Coming to this chamber, one finds that Senator Murphy was even more eloquent. He said:
We intend to amend the law so that, as far as may be practicable, the value of the vote of one citizen shall be equivalent to the vote of another.
Later he said:
We do not accept the proposition that the relative value of a person’s vote should depend upon his geographical location.
The changes proposed by this Bill will give some meaning to the principle of one vote one value . . .
Later in his speech, while referring to the Joint Committee on Constitutional Review and the Supreme Court of the United States, he said:
Every worthwhile authority supports the case for one vote one value, and equality of electorates. The vote of one person, whatever his occupation or location, should be as good as the vote of the other.
In terms of principle they are statements to which the Opposition subscribes. But the point which I make and the inconsistency which ought to be marked is that this Bill does not provide for those principles. This Bill provides for a situation in which you will have an unequal number of voters in each electorate. You may have an equal number of people in the electorate but you will certainly have an inequality of voters. One merely has to look at the figures in 1971 to find some of the discrepancies which will occur. If the equality of population is the criterion there will be, of course, electorates of equal size in population but some will have more electors than others. If we take the electorate of Higgins, for example, which is represented by Mr Gorton, we find that in 1971, approximately 100,000 people were living in the electorate. But there were only 56,000 voters. In the electorate of Melbourne, currently represented by Mr Innes, there were 131,000 people in the middle of 1971 and there were only 54,000 voters. If we were to equalise out the electorates on the basis of population we would find that in the inner city areas- I think this applies right throughout Australia- there would be relatively small numbers of voters and in the outer metropolitan ar s and country areas there would be a larger number of voters.
All that the Labor Party would be doing would be giving a balance in favour of those electorates in which it currently has representatives and which, looking forward into the future, it believes it will continue to hold. That is why it is a wholly fair comment to regard this Bill as a calculated manoeuvre, no matter how attractively it might be couched and described, to ensure that by an electoral distribution written into the Constitution the Labor Party will go far towards perpetuating its rule in the House of Representatives. Of course it will assist the Labor Party in different States. .
Much of what is contained in this Bill is unnecessary. The Bill seeks to amend the Constitution in, I think, 7 respects. I do not desire to go through each of the particular clauses which are sought to be amended but if one were to do so one would find that there is an attempt to amend the various sections of the Constitution in a way that is more restrictive of the Parliament’s power to pass laws than is the present position. I simply refer to the fact that at the moment with regard to the qualifications of electors, the Constitution states ‘until the Parliament otherwise provides’. Then are set out those provisions which governed the election of the first Parliament. So long as the words ‘until the Parliament otherwise provides’ remain in the Constitution, Parliament may pass laws as a majority of the Parliament from time to time deem them to be necessary. Surely that is what democracy is all about, because that is the power which a Parliament should have. If the provision which the Labor Party is now proposing is written into the Constitution, one consequence will be that only laws of the type which are specifically set out can be passed until the Constitution is again amended.
It is unnecessary to have what the Labor Party is proposing because if what it is proposing is of efficacy, is of value, it can pass an ordinary law which can come to the Senate for consideration. But the Labor Party has not chosen to do that. Likewise to give a jurisdiction of the High Court by this amendment is to give to the High Court that which the High Court already possesses. Indeed, to divide the electorates on the basis of population as the Bill proposes is a proposal which the Government could give effect to today if it could secure the passage through this Parliament of a Bill. But it knows that that is not likely to occur and so it introduces a referendum which I suppose it believes will have more chance of being adopted by the people if the Government talks about it being a Bill to guarantee democratic elections. It is nothing of the sort.
This Bill ought to be castigated and exposed for what it is. To call it a gerrymander is to call it by something which is a fair description because the public knows that a gerrymander is a system of dividing up electorates; in order to secure in power a particular political party. As I have so described this proposal/.’that is what it will achieve, lt ought not to be thought that the Labor Party is a Party which is purist in electoral matters. We ought to remember that it is a fairly long time since the Labor. Party in this country has held a majority of the seats in both Houses of the Parliament, whether of the nation or of the States. In the days when if ‘did, and I refer specifically to the States, the Labor Party introduced gerrymander schemes which by deliberate design could scarcely be bettered. I do not want to go into the details but I refer, for example, to an article by Mr Truman in the ‘Australian Quarterly ‘ of December, 1959 in which he said of the Queensland situation in relation to an Act passed in the 1940s: .
And it was a successful frustration of the democratic process, for in the elections of 1950 the Liberal and Country Party team won a majority of the votes, actually 49.7 per cent, but gained only 31 of the 75 seats, whereas Labor polled but 46.5 per cent of the votes yet ‘managed to get 42 of the seats. ‘
– It is much worse in Queensland today on the other side.
– It is not worse in Queensland today.
– Yes, it is worse.
– I agree that there is malapportionment as there will always be malapportionment, it seems to me, once you endeavour to give a weighting to particular interests such as country interests. That is a view which I think has a degree of commonsense support for it, but the caution which one must always exercise is never to take it to the extent that the malapportionment which occurs thwarts the will of the people. One can say in this Federal arena that the will of the people has not been thwarted. I think there has only been one occasion in the last 40 years- I do not know what the position was back beyond that time- in which a Party securing the majority of the votes did not secure a majority of the seats in terms of whether or not more than 50 per cent of the votes were secured. That was in 1954 when the Liberal-Country Party won and. Labor lost. But that, may I say, was on a redistribution which had been fixed only 6 years before and fixed at that time by a Labor Government, but it was very close, of course, and it has not happened since.
– It was 49. per cent to about 45 per cent.
– It was not that at all. It was just the percentages either side of 50 per cent. Leaving that aside, the basic proposition is that there is no case for claiming that Commonwealth . distribution of House of Representatives electorates has thwarted the will of the people as expressed in terms of whether the Party which with its allies and preferences secures over 50 per cent of the vote has been denied the majority of the seats in the Parliament. But if one looks, for example, at the position in New South Wales one will find that in 1965 after some 20-odd years of Labor Government the Liberal-Country Party coalition secured 49.8 per cent of the total vote against 43.3 per cent recorded for the Labor Party but won only 2 more seats than Labor and had to rely upon 2 independents to form a government. This is the sort of thing which can occur and it is, I think, unreal to believe that this Bill is going to cure that situation. That is the argument which is advanced in a general way by the Government as the argument in favour of this proposition. I acknowledge its appeal, but it is so far removed from the reality of what the Bill does that it is proper to call it a confidence trick. If you are going to have seats based upon an equality of population you will find enormous disparities of electors in each State. The vice of putting that into the Constitution is that you will not be able to correct it, notwithstanding that people within a State want to have the system changed. They will be denied the opportunity, which in a democracy they ought to have, to throw out a government which they believe is so gerrymandering the electorates that it is totally unfair. They will be denied that right simply because there is a constitutional provision which enshrines the procedure which has been engaged in. To me this is the particular vice of the proposal. It is not what it is claimed to be; it is the exact opposite. If the Labor Party wants to have placed before this country a proposal to divide electorates on the basis of population it may do so without constitutional amendment. As I indicated, it may introduce the legislation in this Parliament and it can be dealt with here. This legislation is a proposal which in my judgment is totally unnecessary. I believe that judgment can be demonstrated by a reference to each of the provisions of the Constitution which is sought to be amended. The Prime Minister (Mr Whitlam) only last Sunday went on television and, I say, positively misled the Australian people when he said:
There is nothing to guarantee equal voting rights for all Australians. So the Government has decided, by means of these referendums, to allow the people to establish these rights once and for all.
I can only say that the Prime Minister’s carelessness with the truth is becoming increasingly evident on more and more occasions because that statement which I have quoted is a statement which is demonstrably incorrect. The proposed changes will not guarantee equal voting rights. They will not establish equal voting rights. All they will establish is an equality of population in electorates with an inequality of voting rights, which must be the concomitant of it. If there are migrants who are not able to vote, if there are children who are not able to vote and if there are Aborigines who have not yet enrolled, those people will comprise part of the population- the non-voting population- yet they will be the persons who will be counted in determining the equality of electorates. When one considers the protestations of one vote one value on earlier occasions and contrast those protestations with what is now proposed it is a fair thing to say that there is no means too base which this Government is not prepared to use to mislead the people of this country to secure the results which will perpetuate it in office. I hope by what I have said that that has been shown. The Opposition will reject this measure in this chamber. We hope that when it comes to the people, if the Government proceeds to the Governor-General to ask for it to be put before the people, it will be resoundingly defeated.
– In his concluding remarks Senator Greenwood spoke about the Prime Minister (Mr Whitlam) on national television saying what he and his Government were going to do about the referendum Bills. During his remarks the Prime Minister made great play of the fact that the Electoral Acts in the Commonwealth and in many of the States had been nothing less than a gerrymander. What the Prime Minister forgot to say when he was referring to this Bill was that it is a gerrymander Bill designed wholly and solely to favour the Labor Party and perpetuate it in office. When I look at the aims of the Government I am deeply thankful that the Opposition Parties in this Senate have a majority and are able therefore to give a lead to the people of Australia by voting against this Bill.
The Bill proposes that electoral divisions in future will represent numbers of people rather than numbers of eligible voters. Clearly, as Senator Greenwood pointed out, this would result in the creation of more electorates in the densely populated areas where Labor Party supporters are concentrated. The Government sought to do this in another form in the Commonwealth Electoral Bill presented last year. That piece of blatant gerrymander was vigorously fought and defeated in this chamber. It was defeated largely on the grounds that it would have resulted in less representation in the national Parliament for rural industries and for the country people. The need for the vast nonmetropolitan areas of Australia to retain at least the present proportional representation in Canberra has been heavily underlined by the Labor Government’s massive attack on the rural sector since December 1973. Labor’s policy as now revealed, to its great discredit, is not only to kick them down but also to kick them out.
This Government is so determined to execute a fix of the electoral system to help it remain in office after 23 years in the political wilderness that it has brought forward a proposition that is in direct contradiction of the one vote one value policy to which Senator Greenwood referred. Time and time again in both houses of this Parliament Labor has argued for that policy. Of course, the people of this country are accustomed, after only 15 months of Labor government, to broken promises, switched policies and abandoned platforms. Under Labor, these have become the rule rather than the exception. The people of Australia are now understandably suspicious of every Government proposal. It will come as no great surprise to them that Labor has abandoned its one vote one value policy. Fortunately, in this mood they are not likely to fall for the confidence trick that this is a genuine attempt to make elections more democratic.
Perhaps Mr Malcolm Mackerras can be called an electoral expert. In the debates on these Bills last year, here and in the House of Representatives, his words were quoted. It is worth repeating that he said that the Bill we are now discussing would result in the greatest departure from the principle of one vote one value ever seen in the history of Australian House of Representatives elections. He cited figures, as others have done, showing the wide variations there would be in the percentages of voters in the electorates if the boundaries were to be determined on a population basis. Those figures cannot be challenged. They represent proof that the aim of this Bill is not to guarantee democratic elections, as the short title claims. In fact, the aim is the very opposite. I believe that this Bill should be retitled and that for the sake of honesty the title should be ‘Constitution Alteration (Labor’s Gerrymander) Bill’.
The second main proposal of the Bill is to give the Federal Government the right to tell the States how they shall elect representatives to their own parliaments. I thought that this proposition would bring forth loud protests from both sides of the Senate, the House which exists to protect the rights and individuality of the States. But I hear no protest from the Government side- only a loud silence. 1 challenge Government senators to rise and declare that this proposition is not an attempt to strip the States of their fundamental rights. The States wrote their own Constitutions and are entitled to have them written to meet their own needs and wishes and their own particular circumstances. What right has the Federal Government to tell them how to elect their own parliamentary representatives? Clearly it has no right at all. This proposal should be seen for what it is- another unpardonable attack by a centralist government on State rights. My Party strongly supports the rejection of this Bill and appeals to the people to reject it when the issue goes to a referendum.
-The Australian Democratic Labor Party is opposed to the Bill. We agree with the Leader of the Country Party in the Senate (Senator Drake-Brockman) that the Bill is misnamed. In no shape or form can it be called a Democratic Elections Bill because it contains nothing to define a democratic election precisely. Countries all over the world are described as democracies, but whether they hold democratic elections in the true sense of that expression is very much an arguable point. Merely to call a measure a Democratic Elections Bill does not mean that it attains that very high ideal. Nothing in the Bill suggests that it will attain that ideal. In the final analysis what Senator Drake-Brockman said is right. It is an attempt by the Commonwealth to arrogate power to interfere in the domestic affairs of the States by informing them of the opinion of the Commonwealth and then seeking to make that opinion binding upon them in respect of what constitutes a democratic election. This was never envisaged at the time of Federation when the States became partners in the Commonwealth.
The Party that is responsible for this Bill has brought forward various suggestions, in its years out of office when it has resented the fact that it could not win government, as to what would constitute democratic elections. The slogan of one vote one value was first mooted when today’s Government was very much rapt in the idea that first past the post voting was one vote one value and democratic. At that time Labor endeavoured to argue that preferential voting, which has served Australia very well, meant that people had 2 votes. I have heard that argued by members of the Labor Party. They suggested that the system should be abolished in favour of first past the post voting. They argued that under preferential voting a person virtually had 2 votes. But the truth is nothing of the sort. That is a completely ridiculous interpretation of preferential voting. It has not proved to be completely and absolutely democratic, any more than any other system that I know of has proved to be absolutely democratic. But it certainly has proved to be far closer to democracy than first past the post voting, which was the love child, if I may call it that, of the Labor Party for a considerable period of time.
There is nothing in this legislation to suggest that the Labor Party, when in government in the States or the Commonwealth would not again interpret first past the post voting as a democratic system. I suggest that we look at what has happened in Great Britian where attempts to introduce a system of voting such as we have in Australia have failed on several occasions. It is not so in some of the advanced European countries, such as the Scandinavian countries. About 20 years ago I happened to be in those countries when they were conducting elections. I was privileged to visit the polling booths with politically minded people who boasted that in their country elections were conducted on the Australian system of voting. They followed the preferential system which, to a large extent, was pioneered in Australia.
The democratic principle is embodied in the fact that people vote preferentially and mark more than one number on a ballot paper. That does not necessarily mean that they vote twice or that they are having more than one vote. It means that the people resolve the difference between the 2 candidates who are left when those candidates who obtained a smaller number of votes have been eliminated. In the recent elections in Great Britain a government was elected with about 37 per cent of the total community vote. It was not elected democratically at all. How could it be? Not half of the electorate has said that it wants such a government. Under the first past the post system of voting, which is the system in England, England is stuck with a government which has the support of only 37 per cent of the electorate. The 2 major parties have always fought to retain the system because they have recognised that it is to their advantage to retain such a system of voting.
If one studies the results of the recent British election and if one keeps in mind the very clear enunciation of principle only a few days ago from the Government sponsoring this Bill in the Senate- the Government said it would fight to install a 2-party system of government in this country because it is the only proper way to get an efficient government- one sees the clash between the democratic ideals which the Government has placed in the name of the Bill and the Government’s intentions. A member of the Labor Government recently said, without equivocation, that the Party’s ambition was to get a 2-party system of politics in this country, irrespective of the fact that many people might want to support smaller minority groups.
An analysis of the British figures shows that Labour polled 37.2 per cent of the votes. It won 301 seats out of 635. The Liberal Party in England polled 1 9.3 per cent of the votes. It got only 2 per cent of the seats in the House- 14 out of 635. So the difference between 19 percent and 37 percent is the difference between 14 seats and 301 seats, enabling Labour at the moment to form a minority government when it does not have twice the number of votes of a minority party which has only 14 seats in the House. In the recent election the Liberal Party made enormous gains, but it gained no extra seats in the House. The mere fact of it gaining more votes meant that it took primary votes from the 2 major parties, which ensured that one of the major parties would be faced with a situation of having to form a minority government. Nobody knows whom the defranchised percentage of voters would have voted for. Those voters virtually did not have a vote. If they did not vote for either the Conservative Party or the Labour Party they virtually did not have a vote. They have been virtually defranchised. Nobody knows whom they would have preferred of the Conservative Party or the Labour Party to govern Great Britain in this very trying period. Some commentators will state that Labour will be there only for a short period before there will have to be another election. Under the same system of voting, a similar result could ensue. What would this do to a country which is governed under this set of circumstances? It would be an enormous tragedy, and it is a great tragedy for Great Britain today because it finds itself in these circumstances.
Yet a party which sets out to obtain a 2-party system of politics, irrespective of the number of people who may want to support other parties, is prepared to come forward with an ambiguous sort of proposal which does not in itself mean anything or does not lay down what is to be the democratic system. The proposal merely uses the word ‘democratic’. As I have tried to illustrate, there are many systems which could be considered democratic systems. The system which I have just enunciated and which has been conducted in one of the greatest democracies in the world- the mother of the parliaments which we have in this country- is a democratic system. Yet its system of electing members to the House of Commons is not democratic and cannot be accepted as democratic. What purpose is to be served by placing before the people a referendum which merely enunciates that election shall be by a democratic system of voting, when the system is not spelt out so that the people can judge for themselves whether the ideal which is contained in the name of the Bill will be attained?
I suppose the most democratic form of election is the proportional representation system which ensures that the representation in the parliament will reflect completely the will of all the people who are entitled to vote and which will give the minorities as well as the majorities the right to have voices in the parliament. Yet it is recognised in many parts of the world that even this great principle can sometimes stultify a democratic government. Out of all these ramifications the Australian Government, dedicated as it is to the electoral ambitions which it has enunciated- that is, of having merely a 2-party system because that is more efficient than a 3, 4, 5 or 6-party system, in its estimation- as long as it is one of the 2 parties, stands four square for the system. But it does not analyse the system to its obvious conclusions. It is not democracy because it is one of the major parties in an electoral system. It is not democracy that one party should have that right.
If we argue on the basis that such a system gives more efficient and more rapid decisions- it gives whichever of the 2 major parties which is in government the right to govern more rapidly- we rapidly move from that concept of politics to a one-party system of government which, without question, is much more efficient than any other because it strangles its own opposition and it does not have to contend with any disputation or any other points of view. This piece of nonsense, this piece of deception, which it is proposed to place before the people in the form of a referendum is a matter of words. The referendum will not achieve what is set out in the name of this Bill and which is what the Government says it desires to achieve. It is bound to create enormous hostility among the States, which have come together as a cohesive whole for the benefit of the whole nation and which would never have come together if it had been suggested at the time of Federation that the Commonwealth would take unto itself the power to say to the States what it considers to be a democratic system of election.
Various States have different systems. Tasmania has had a proportional representation system for many years, and it stands by that system four square. The other States have democratic systems also. There may be some limitations, there may be some criticisms and there may be some suggested improvements, but by and large Australia is a great democratic nation. The States are democratic States. The criticism usually comes from those in politics who cannot win. Over the years the State governments have changed, and have changed more rapidly than the Australian Government, which shows clearly that the system is sufficiently democratic to allow for the changings of government and to allow for the emergence of new political thought in the form of minority groups, some of which will unquestionably some day become majority groups, just as the Labour Party emerged in the political history of England from a party which struggled for many years before it won one seat in the House of Commons. Then Keir Hardie was elected, and Labour won its first foothold in the Parliament of England. Would the Labour Party of that day have suggested that only the majority parties of previous days had a right to live politically in a democracy? Of course it would not.
The Bill is a piece of nonsense. We have expressed our point of view on previous referendum proposals. The other objections which we have had apply to this Bill. It is impossible to argue this case before the people properly because of the manner in which the Government suggests that it should be done, and that is, to conduct a Senate election- to place before the people the intricacies of democratic elections, the various systems which could be argued for and against- and a referendum campaign in a mere matter of a fortnight.
It is impossible, in a period of a fortnight, to ask the people to change their Constitution in relation to questions of this magnitude and complexity. The other day a member of the Australian Labor Party suggested that one had to be a Queen’s Counsel to understand the Constitution. Yet we are to go out onto the hustings and, in a fortnight, explain to the people the Constitution as it now stands and why it should be amended to enable the Commonwealth to impose upon the States a system of voting that is different from the one they have already accepted. I do not wish to cover the ground covered by the other speakers or to explain how this Bill will lead to the imbalance of electorates that can develop when the qualification is merely the fact that a person is alive- whether an adult or a child and on the rolls or not. All people are to be computed into the numbers which are alleged to make even electorates. This is all a matter of nonsense, as I have said. For these reasons we reject this proposition as not being worthy of being placed before the people at a referendum.
-Just for a few minutes at this late hour- it is not really a late hour- I shall speak to this almost empty chamber from which nearly all thought of deliberation seems to have departed. Particularly has this trend been taking place since the advent of the present Government. But I take a lot of pleasure in rising to refer to this gag to which most of us have listened yesterday and today. It is suggested that because these 4 proposals are to be put before the people at a referendum it is axiomatic that this chamber should pass them with very little discussion. That suggestion has been put up in this place again and again yesterday and today. Anyone who trots that out is scraping the bottom of the barrel to find an argument. I say that for this reason: I believe that it is the duty of this place to study, to deliberate on, to debate and to assess every proposition which is to be put before the people by way of referendum. If, in the opinion of this place, such a proposition will not advance the welfare of the people or confer any benefit on them it should be rejected. I have no hesitation whatever in saying that.
The purpose of the Constitution Alteration (Democratic Elections) Bill is to ensure that the members of the House of Representatives and of the parliaments of the States are chosen directly and democratically by the people. The very name implies a lie. The first past the post system of voting has been mooted. Admittedly, the Government also has suggested retaining preferential voting but making it optional. Again, that is only a gag. If the Government imposes these 2 principles on the people of the Commonwealth, then that is the end of representative and democratic government as we have known it.
I have referred to this point before and I will refer to it again. About 12 months ago I went to New Zealand. It is true that New Zealand has operated an assessment of electorates on a population basis. In addition, New Zealand has operated a first past the post system for as long as it has had elections. There was much display in the Press in this country and in New Zealand about the terrific swing to Labor in New Zealand. Some of the newspapers said that Labor had a mandate- we have heard a lot about mandates in this place- to put all its policies into operation. I had a rundown on the figures prepared, and to my very great surprise I found that Labor got only 48 per cent of the votes, yet it got 64 per cent of the seats. On the other hand, the Government Party at that time, the National Party, got 41 per cent of the votes and only 37 per cent of the seats. I say that that is an awful result. Surely that is just a haphazard method of getting a government without any true reflection of the opinion of the voters. That demonstrates what happens. Labor with 48 per cent of the votes, got 64 per cent of the seats and the other party, with 4 1 per cent of the votes, got 37 per cent of the seats.
Let me compare that with what this Government is setting out to do; that is, to improve the system which operates in this country. The figures I received from an official in the Library show that at the last election Labor with 49 per cent of the votes, got 53 per cent of the seats. The Liberal-Country Party got 41 per cent of the votes and 46 per cent of the seats. By comparison with the result in New Zealand, surely that is a much more reasonable proposition. That is a better result. With the system of first past the post voting plus an equation of electorates on a population basis, one is apt to get any result at all. Do honourable senators know that the swing to Labor in New Zealand was only 3 per cent, but it brought about completely devastating results? I believe with all the sincerity that I possess that the Government proposes to put this proposition before the people to ensure permanent Labor government. That is the reason for it. If the Government did not think that this proposition would advantage it electorally, it would not have a bar of it; it would be in this place to a man, fighting it tooth and nail.
I know New Zealand well. It always has operated this system. The reason New Zealand has had National Party governments is that it has a very different distribution of population. It is not nearly so centralised. In addition, New Zealand has a very much bigger percentage of rural people. I would say that the percentage of the population who are primary producerspeople who make their living from the land- is considerably greater in New Zealand than in Australia. Those factors at times have tilted the balance against the Labor Party and brought into being a National Party government. But I have not a scintilla of doubt that if that system is applied to a country such as Australia with its excessive centralisation, we will have Labor governments in this country forever.
– It becomes the one party system of government.
– Yes, a one party system of government. That is why this Bill has been brought forward, and for no other reason. That is why I say that the title of this Bill is a lie. Senator Little had something to say about the United Kingdom. That country operates under the first past the post system. One of the factors that leaps to the eye is that in the last election the Liberal Party won 19 per cent of the votes and gained 2 per cent of the seats. This document I have, which was put out by the Department of Foreign Affairs in Canberra, had this to say about the recent election in the United Kingdom:
The election result indicates an erratic correlation of popular support and parliamentary representation. The other minor parties gained 24 seats from approximately 1,700,000 votes. The Liberals received more than 6 million votes but only 14 seats. Labour won S seats more than the Conservatives, while polling 0.9 per cent fewer votes. It is estimated that, if proportional representation with the single transferable vote had applied, the Conservatives would have won 242 seats, Labor 236 and Liberal 122.
The Liberals would have won 122 seats instead of 14 seats, or whatever it was. By comparison with the system that operates in New Zealand and the system that operates in the United Kingdom, the Australian democratic system as it is applied to this Federal Parliament is as near perfection as democracy can attain. But that is not good enough for this Government. It wants to make certain. As Senator McManus said here on one occasion, the principal force activating the people who prepared this Bill is: ‘Could I win with it?’ My God, they will win with it if they can get it passed, but I have enough faith in the common sense of the Australian people to know perfectly well that they will not get it passed.
– I rise to express my complete opposition to this Constitution Alteration (Democratic Elections) Bill. In doing so I am not deterred in any way by the argument repeatedly advanced on behalf of the Government in this chamber, in the course of this debate and earlier debates on the constitutional alteration Bills, that somehow or other it is none of the business of the Senate, one of the 2 Houses of Parliament, to deter or impede the Government in putting its suggestions for alteration of the Constitution to the people. That fallacious argument has been well and truly nailed in debate here on previous measures by the Leader of the Opposition (Senator Withers). I believe that this Bill, particularly its title, is an excellent example of why the Constitution places responsibility on both Houses of Parliament to decide which measures should or should not go to the people. This Bill, according to its title, will be put to the people as a Bill to ensure democratic elections in Australia. 1 will not be a party, and I would not expect the Senate to be a party, in any attempt to perpetrate fraud of that character on the Australian electorate. That is all it is. To put through a measure under a title of that kind, as a Bill for democratic elections, is purely and simply an attempt to perpetrate a fraud on the electorate. I do not believe for one minute that the electorate will be fooled by such patent trickery but I believe it would be quite improper for us in this Senate to be in any way a party to putting forward that type of attempt to trick the electorate. Therefore it is only right and proper that we should give very close attention to such measures before they are put to the electorate.
This Bill, although its title is the greatest misnomer that it could possibly be, seeks the making of some changes in the Australian Constitution. It attempts to induce the electorate to believe that somehow or other a democratic system of government will be introduced. What is the real essence of the suggested change which is put forward? There is a great deal in this Bill about Parliament being elected directly by the people, with a vote being guaranteed for everybody over the age of 18 years, including Australian citizens who have had a reasonable period of residence in an electorate. These are all matters which are now well accepted features of our Australian democracy. That is why I say that the title is a misnomer and that to present such a measure in this way is really attempting to perpetrate a fraud. Of course the electors, when they consider these matters, will realise that in fact including these things will not lead to such a guarantee in the Constitution.
The Bill seeks to include 2 very important changes in the Constitution which may well escape the electorate. The people no doubt will not have the opportunity or even the inclination to read the fine print. The first principle is that in future, although the vote is being guaranteed to all Australian citizens over the age of 18 years, electorates are to be drawn up in such a way that all the people, including children- presumably even babies- unnaturalised Australians and others who do not enrol, will be included. That is what the Government is seeking to impose in presenting this Bill. It seeks a constitutional requirement that electorates in this country will be drawn up on the basis of that feature and not on the basis of the actual right to be an elector, namely, being an Australian citizen.
I believe that the second feature of this Bill has been well and truly covered by previous speakers in this debate. I do not propose to advert any more to it than to associate myself with the arguments which have been advanced and, in particular, the emphasis which has been placed on it. It is a naked attempt by the Labor Party to gerrymander the electorate for its own purposes and to secure its position in power forever. One aspect of this Bill which concerns me particularly is that it seeks to impose this law not only on this Parliament and its electorate; it seeks to impose upon the State parliaments a method of dividing the electorate into divisions and for those divisions to be as nearly equal as practicable.
– In area or in electoral population?
– As nearly as equal as possible on a population basis. We have had some debate in this chamber in the last 12 months about our own electoral laws being based on divisions and, whether they be determined on the basis of people or electors, they are to be as nearly equal as practicable. Certain methods have been suggested as to how this can be achieved. We have expressed our views on this matter in this chamber on 2 occasions and I do not wish to speak about it any further. The point in this measure to which I strongly object is that it is an attempt to impose these principles upon the parliaments of the States. Surely the question of what is the right electoral system for a State parliament should be determined under our Constitution, under a federal system, as we know it, by the parliaments of the States or by the people of the States but certainly not by the rigid provisions of the Constitution which is applicable only to the Federal Parliament.
What it says here about the parliament of Western Australia, the one with which I am particularly concerned is that in future when its electoral laws are being considered they must conform to this straight-jacket which is imposed by this new provision in the Constitution, if it were passed, which is to apply everywhere in Australianot only to the Federal Parliament but also to the State parliaments. Who is to say what shall be the system which provides for a relationship between electoral divisions which is as nearly equal as practicable? I would have thought that the people best fitted to determine what is the best electoral system for a particular State and for a particular parliament would be the people of that area and their representatives in that parliament who are responsible to the people for decisions that are made. But of course that will not be the case.
Any electoral system which does not comply with this requirement- this straight-jacket which is being imposed by this suggested amendmentwould not be subject to decisions by the Parliament or the people of that State. This matter would be determined, under the provisions of this measure, by the High Court of Australia. In other words, every electoral law which is passed by the State is not to be finally determined by the people or the Parliament of that State but will come under the scrutiny of a few judges of the High Court who will determine whether it fits the requirement and the straight-jacket of this Bill in aspects that are included here as basic requirements. That seems to me to be an assault on a democratic system. It will not be the people of the State or their parliamentary representatives who decide it; it will be decided by a few judges of the High Court of Australia. How would they know? How are they fitted, for the sake of argument, to determine what is the best and fairest electoral system for the State of Western Australia? That is a decision of practicability, of common sense, and it will be decided by men none of whom would have the foggiest notion of what practical considerations are needed and must be considered in determining what is the fairest and best system of parliamentary representation for a State the size of Western Australia or, for that matter, Queensland or almost any other State of Australia. For those reasons in particular I propose to vote against this measure.
– The matters have been canvassed and in view of the exigency under which the Senate is operating I do not think it is necessary to go through all the various matters that have been put forward. No doubt they will be debated at even more length and with more passion in the electorates. I therefore ask the Senate to put the measure to the vote.
That the Bill be now read a second time.
The Senate divided. (The President- Senator Sir Magnus Cormack)
Question so resolved in the negative.
– I inform honourable senators that I have ascertained that His Excellency the Governor-General will be pleased to receive the Address-in-Reply to the opening Speech of Her Majesty the Queen at Government House on Tuesday next, 19 March at 5 p.m. I extend an invitation to all honourable senators to accompany me on the occasion of the presentation.
Message received from the House of Representatives in the following terms:
Pursuant to the Standing Orders relating to the resumption of proceedings on lapsed Bills, the House of Representatives requests the Senate to resume consideration of the Bill intituled ‘A Bill for an Act relating to certain Trade Practices’, which was transmitted to the Senate for its concurrence during the last Session of the Parliament, the proceedings on such Bill having been interrupted by the prorogation of the Parliament.
– by leave- I move:
I indicated earlier that I would circulate proposed amendments to the Bill. I have a statement with reference to those amendments, which I seek leave to have incorporated in Hansard.
– We will deal with first things first. The question is: ‘That the motion be agreed to’.
Question resolved in the affirmative.
- Senator Murphy has asked for leave to incorporate a statement in Hansard. I have had a look at it. It is a large document, but I think it should be incorporated. Is leave granted? There being no objection, leave is granted. (The document read as follows)-
TRADE PRACTICES BILL 1973
AMENDMENTS TO BE MOVED ON BEHALF OF THE GOVERNMENT
I am taking the opportunity or circulating at this stage amendments that the Government proposes to move in Committee. I do this now so that the Second Reading Debate can proceed on an informed basis.
As I have made clear on a number of occasions, the Government has been prepared at all times to consider comments on this legislation from those who will be affected by it and from other interested persons. A large number of persons and organisations have now made known their views on the detailed provisions of the Bill and all of these views have been given careful consideration.
The provisions of the Bill have been closely examined to see where, in the light of the comments received, improvements could be made. Where the language of the provisions could be made more certain, this has been done. Where there may have been some uncertainty as to the operation of the provisions, amendments have been drafted to remove that uncertainty. Some of the doubts raised about the meaning of particular provisions may have been justified. Others may not have been justified but they have been taken care of by the proposed amendments.
Most of the amendments are of a drafting nature only. The structure and scope of the Bill will be essentially the same. The more important changes are as follows:
The conduct which is to be prohibited under the restraint of trade, monopolisation, exclusive dealing and price discrimination provisions is defined more tightly and an express exception is included for restraints of trade that are insignificant. The relevant amendments arc those numbered (36) and (37).
b ) The price fixing agreements in respect of which authorisations arc not available are to be defined with more precision. In the Bill authorisations are not available in respect of agreements that have the purpose or effect of fixing, controlling or maintaining the price for goods. Under proposed Amendment No. (78) the agreements that are incapable of authorisation will be those that fix or control, or provide for the fixing or controlling of, the price of goods.
Amendment No. (89) provides for a clearance procedure in relation to contracts in restraint of trade. Clearances will be possible for agreements that effect only an insignificant restraint of trade.
Amendment No. (59) will apply to transactions by way of hire-purchase or lease. In these circumstances the dealer who actually handles the goods, rather than a company that merely finances the transaction, is made responsible for the quality of the goods supplied.
Amendment No. (72) provides for a defence for a reseller who is able to establish that, although he failed to comply with the consumer standard provisions, he did not know and could not with reasonable diligence have ascertained that the goods did not comply with those provisions.
The legal aid provision that I foreshadowed when introducing the Bill is included in Amendment No. (107).
The amendments do not detract from the effectiveness of the Bill. They effect worthwhile improvements and meet many of the criticisms that have been made. I have said before that this is good legislation. The amendments are brought forward by the Government to ensure that it will be even better.
For the information of honourable senators I am circulating explanatory notes in relation to the amendments. I am also having prepared, for the assistance of honourable senators at the Committee stage, a document indicating how the Bill will appear with the amendments incorporated in it. I shall of course endeavour to assist with any further explanation that may be required. Officers of my Department will be available also to assist honourable senators and other persons in this regard.
I need not remind honourable senators that legislation of this kind is long overdue in Australia. The need for effective legislation has been recognised by all Parties during the last decade. For too long restrictive trade practices and other unfair commercial practices have been able to continue to the detriment of the community and to the detriment of individual consumers. The way is now clear for the Senate to proceed with its consideration of the legislation and I trust that it will do so at the earliest opportunity.
TRADE PRACTICES BILL 1973
NOTES ON AMENDMENTS TO BE MOVED ON BEHALF OF THE GOVERNMENT
(Circulated by the Attorney-General, Senator the Hon. Lionel Murphy, Q.C.)
1 ) Drafting only (in consequence of Amendment (36) ).
Drafting only (in consequence of Amendment(36 ).
Spells out meaning of ‘conduct’.
Omits an unnecessary definition and changes references to the Australian Industrial Court to the Superior Court of Australia (proposed clause 167a (Amendment ( 107) ) provides for temporary exercise of jurisdiction by the former court pending the establishment of the latter court ).
Spells out meaning of ‘engage in conduct’, and clarifies meaning of ‘financial corporation ‘ and ‘foreign corporation ‘ for purposes of existing definition of ‘corporation ‘.
Clarifies meaning of ‘give effect to’ for purposes of provisions such as proposed clause 45(2) (Amendment (36) ).
Limits a ‘market’, for purposes of provisions such as clauses 47 ( 5 ), 49 ( 1 ) and 50 ( 1 ), to a market in Australia.
The express limitation of the meaning of ‘trade or commerce’ is to ensure that the prohibitions of various practices in trade or commerce are confined to practices having an effect on trade or commerce in or with Australia. The meaning of ‘trading corporation’ is clarified for the purposes of the existing definition of corporation.
Drafting only (now see clause 46(2) Amendment (36)).
Defines ‘consumer’ in positive rather than present negative terms.
This is to ensure that, as well as applying to conduct within Australia, the Act will apply to conduct outside Australia by persons having a specified nexus with Australia.
17) Drafting only.
The Governor-General rather than the AttorneyGeneral, is to appoint an Acting Chairman of the Commission.
Drafting only (provision unnecessary in view of clause 18(5)).
This is to make it clear that the Commission has power to make general statements, for the guidance of interested persons, in relation to its functions and powers.
Amends clauses 45, 46, and 47 as indicated below.
The restraint of trade prohibition now refers to a contract, understanding or arrangement’ instead of a ‘contract, combination or conspiracy’ in restraint of trade. Some doubts had been raised as to whether ‘combination’ and conspiracy’ would have the intended meaning.
Contracts in restraint of trade entered before the commencement of the Act are to be rendered unenforceable but not unlawful by clause 45 ( 1 ). Contracts in restraint of trade made after the commencement of the Act will still be unlawful by reason of clause 45 (2) (a).
Clause 45 (2) (b) makes it clear that it will be unlawful to give effect to a contract in restraint of trade entered before the commencement of the Act.
) The specific categories of arrangements that were deemed to be included in the restraint of trade prohibition have been omitted in order to avoid possibly unintended results stemming from lack of flexibility in those categories.
Clause 45 (3) is included to make it clear that insignificant restraints are not covered by the prohibition.
vi ) Clause 45 ( 5 ) is included to ensure that an acquisition that has been authorized or cleared for the purposes of the merger provision (clause 50) is immune under the restraint of trade provision. (vii) Clause 45 (7) is included to enable contracts to be made conditional upon the grant of an authorization or clearance.
The monopolization provision is modified (clause 46 (1 )) to make it clear that it does not prevent normal competition by enterprises that are big by, for example, their taking advantage of economies of scale or making full use of such skills as they have; the provision will prohibit an enterprise which is in a position to control a market from taking advantage of its market power to eliminate or injure its competitors. The change has made it possible to run existing sub-clauses 46 ( 1 ) and ( 2 ) into one sub-clause.
Clause 46 (3) is modified to ensure that conduct that is the subject of a clearance in respect of clause 45, 47 or 50 is immune under this provision also.
Existing paragraph 47 (3) (e) is omitted from the exclusive dealing provision. That paragraph dealt with the granting to distributors of exclusive franchises. This practice does not necessarily amount to a restraint of trade. In cases where it does amount to a restmaint of trade- and a restraint that is not insignificant- the practice can now be left, in the light of changes in the restraint of trade provision (clause 45), to that provision.
Existing sub-clause 47 (4), which deals with the acceptance by a distributor of exclusive dealing conditions, is omitted as unnecessary. The practice is dealt with more directly by the provisions aimed at the supplier who imposes the conditions.
Clause 47 (3) defines more precisely the conduct intended to be prohibited by existing clause 47(2).
Clause 47 (4) covers the practice by which a supplier requires a customer to acquire other goods or services from a third person- often pursuant to arrangements under which the supplier obtains a commission or other benefit on sales by the third person to the customer. Doubts had been raised as to whether this practice was covered.
Subject to drafting changes, clause 47(5) is in line with existing clause 47 ( 1 ). It indicates that exclusive dealing of the kind described in clause 47 (2 ) is prohibited only where it is likely to have a substantial adverse effect on competition.
The price discrimination provision is modified as follows:
There is more specific drafting in paragraph 49(1) (b).
Additional words in the concluding pan of clause 49 ( 1 ) make it clear that not every price difference is prohibited, but only those differences that have a substantial adverse effect on competition.
There are drafting changes in relation to the required adverse effect on competition (clause 49 ( 1 )), and it is made clear that the provision is concerned with such an effect in the supplier’s market or in the purchasers ‘ market.
The defences in clause 49 (2) are made available in respect of discrimination in the provision of ancillary services as well as discrimination in prices.
There are drafting changes in the cost justification defence in clause 49 (2) (a) and a reference to distribution costs is included.
There are drafting changes in sub-clauses 49 (3) and (4).
Clause 49 (5) clarifies what is required of a buyer in establishing one of the defences in clause 49 (2 ).
The merger provision is modified as follows:
There are drafting changes in relation to the adverse effect on competition required in clause 50 ( 1 ).
Existing clause 50 (2), which deals with offers for the acquisition of shares or assets made before 28 September 1 973, is omitted as no longer necessary. Offers made since that date (when the Bill was first introduced) can be made conditional upon the granting of a clearance or authorization in case the Act comes into operation before the acquisition is concluded.
Clause 50 (3) is modified to enable contracts for the acquisition of shares or assets to be made conditional upon the granting of a clearance, as well as upon an authorization, and to enable such a contract to be entered before an application is made for authorization or clearance.
This is to remove any doubts that the exemptions provided in relation to patents and other forms of industrial property are those provided in clause 51 (3) and are not to be found under clause 51(1) (a).
A reference to performance standards is included in the exception for standards.
This is to ensure that restrictions in partnership agreements between individuals are not covered by the prohibition of contracts in restraint of trade. Such restrictions will remain subject to the common law doctrine of restraint of trade.
The prohibition of pyramid selling is modified as follows:
The conduct prohibited is expressed in more positive terms ( clause 6 1 ( 1 ) and (2 ) ).
Paragraph 6l(3)(a) is included to remove possible doubts as to interpretation.
The scheme defined in clause 61(4) is described in neutral terms as a ‘trading scheme’ instead of as a ‘pyramid selling scheme’. The scheme is not prohibited in itself. Conduct of a specified kind is prohibited if carried on in relation to such a scheme.
The definition of a scheme in clause 61(4) is simplified. The elements in existing paragraphs 61(5)(c) and (d) are omitted as unnecessary.
) Drafting only.
Paragraph 66(1 )(aa) makes it clear that the conditions and warranties provided for in Division 2 of Part V will not be implied into contracts made before the commencement of the Act. Drafting changes only in paragraph 66(1 )( b ).
Drafting changes in paragraphs 69(1 )(b) and (c). Subclause 69( 1 A) is to ensure that a mere floating charge, which does not interfere with the supply of goods to a consumer, does not give rise to a technical breach of warranty.
Sales by auction or competitive tender are excluded from the implied conditions and warranties provisions on the basis that the conditions and warranties may not always be appropriate in such transactions.
This provision ensures that the dealer who actually handles the goods, rather than a company that merely finances the transaction, is responsible under Division 2 of Part V for the quality of goods supplied by way of hirepurchase or lease.
This provision defines the kinds of services in relation to which a warranty of ‘due care and skill’ is made mandatory.
Considerations that may be relevant to the exercise by the Court of its discretion whether to impose a pecuniary penalty for a breach of a provision in Part IV, and if so as to the amount of any such penalty, are indicated. As is already the case with the consumer protection provisions, a lower maximum penalty is provided for an individual than for a corporation. Following the omission of ‘conspiracy’ from clause 45, a conspiracy to contravene a provision of Part IV is included as an ancillary contravention.
Actions for damages under the Act are to be brought within 3 years. This express provision removes doubts as to the applicable limitation period under local State or Territory law.
A ‘reasonable diligence’ defence is provided for resellers in respect of the product standard provisions (clauses 62 and 63). The defence recognizes that the primary responsibility under those provisions is to be borne by the manufacturer or first supplier of the goods, but it does not relieve the reseller of responsibility altogether.
These provisions empower the Court, upon application, to make orders adjusting the rights of parties to contracts made before the Act which become unenforceable by virtue of the Act. This is in addition to the power of the Court to make ancillary orders adjusting rights etc. where there has been a contravention of the Act (clause 87 ( 1 ) (2 ) ). Clause 87(5) indicates that these provisions do not affect any power of severance a court may otherwise have in relation to a contract in restraint of trade.
Drafting changes, largely in consequence of changes in clause 45. The price-fixing agreements in respect of which authorisations are not available are defined more precisely in clause 88(2).
This makes it clear that any ‘national economic pol icy ‘ direction given to the Commission in relation to a merger will be placed on the register for authorisations which, by virtue of clause 1 64, will be open to the public.
The ‘slight effect on competition ‘ ground for author isation is omitted as no longer necessary. As a result of changes in clause 45(3) (Amendment (36)), contracts in restraint of trade that have an insignificant effect on competition are now excluded from the restraint of trade prohibition. Cases of exclusive dealing and mergers that have such an effect are already excluded from clauses 47 and 50. A clearance procedure will be available in respect of contracts in restraint of trade (Amendment (89)) (there is already such a procedure in relation to exclusive dealing and mergers). This procedure will enable parties to ensure that they have immunity for arrangements and practices that have only a slight effect on competition.
This is to give the Commission more flexibility in granting interim authorizations. For example, if the Commission rejects an application for authorization in respect of existing arrangements, it will be able to allow the parties a limited time to wind-up those arrangements.
A clearance procedure is provided in respect of con tracts in restraint of trade. Where the Commission is of the opinion that a contract is in restraint of trade to an insignificant extent only, a clearance will protect the parties from enforcement action (clause 91a). There are drafting changes in clause 92, and the Commission is empowered to extend the 30 day period of grace allowed when it ends a clearance in respect of exclusive dealing.
94 ) A definition of agreement, in line with that applicable to the shipping provisions in the existing Act, is included in the overseas cargo shipping provisions.
Clause 147(2) provides for resale price maintenance proceedings instituted by the Commissioner under the existing Act. and still pending when the new Act comes into force, to be continued by the Commission.
Draftingonly. (100) Draftingonly. (10 1) Drafting only. (102) Draftingonly. ( 103) This is to ensure that where an individual is required to furnish information to the Commission that information is not admissible against the person in criminal proceedings other than criminal proceedings relating to the falsity of the information so furnished etc. ( 104) As in ( 103), in respect of evidence required to be given to the Tribunal. (105) Draftingonly. (106) This is to make it clear that particulars of export agreements, which are furnished to the Commission under clause 5 1 (2) (f), will not be available to the public. ( 107) The following provisions are included:
Clause 167a provides for the exercise by the Australian Industrial Court of the jurisdiction conferred by the Act on the Superior Court of Australia pending the setting up of the latter Court.
Clause 167b is the legal aid provision foreshadowed when the Bill was introduced into Parliament. Parties to proceedings in the Court, the Commission or the Tribunal will be able to apply to the AttorneyGeneral for assistance. (108) Drafting only. (109) Draftingonly.
Bill presented, and read a first time.
Standing orders suspended.
– I move:
This Bill is in the same form as the Superior Court Bill 1973 which was introduced by me on 12 December 1973. Honourable senators will recall that the 1973 Bill was not debated by the Senate. I refer honourable senators to what I said about the purposes and content of the Bill when I introduced it in December. I propose to introduce some minor amendments which will be concerned mainly with the exercise by the Superior Court of Australia of its jurisdiction in family matters. They will be dealt with, in any event, during the Committee stage. I commend the Bill to honourable senators.
Debate (on motion by Senator Greenwood) adjourned.
Debate resumed from 7 March (vide page 16 1 ), on motion by Senator Murphy:
That the Bill be now read a second time.
-I propose to respond to the motion for the second reading of the Constitution Alteration (Interchange of Powers) Bill 1974; but, with the leave of the Senate, I ask this question: What is the Government’s intention with regard to the sittings of the Senate today? According to the motion which was carried today, the motion for the adjournment of the Senate is to be put at 5 o’clock. Usually these matters are arranged between the party leaders, but we do not know what the position is. If the Government intends that the Senate will sit on late tonight- when I say ‘late tonight’ I mean beyond 6 o’clock or thereabouts- I think we should know about that. If that is not intended, we ought to be able to determine what our attitude is. In that case this debate might not proceed. This Bill is not in the same position as the other 4 constitutional alteration Bills. I simply ask the Leader of the Government in the Senate (Senator Murphy) whether he will give us some indication of what is to happen.
– by leave- The Government’s position is that it would like the Bill to be passed by the Senate without any delays. I do not know whether there is opposition to this measure. It was said that this measure is in a different category from the other constitutional alteration measures. I understood that the States were in favour of this measure, certainly in principle. But, if there is opposition to the measure, it may well be that the debate cannot be concluded speedily.
– It will not be concluded speedily.
-We have made our attitude plain. If the view of the Opposition is that the debate cannot be concluded speedily and if the Opposition will not allow the debate to be concluded this week, there is no point in our debating amongst ourselves what procedure should be followed. The sensible course would be not to proceed with the debate. The wish of the Government is to have the measure passed this week. If the view of the Opposition is that this will not be done, we are quite clear as to what course should be followed. The Opposition should make its attitude clear. It is prepared to go ahead and deal with this Bill, whether it intends to reject it or not?
– If it is prepared to go ahead, the Government wishes it to do so.
– The Opposition is prepared to debate this Bill, but I assure the Leader of the Government in the Senate (Senator Murphy) that the debate will proceed beyond 5 o’clock, beyond 6 o’clock and into tonight. It was in order to make that quite clear that I asked the question of the Leader of the Government. This Bill cannot be taken to the Governor-General because it is being presented here only for the first time. Therefore, it is in a different category from the other constitutional alteration measures. I had understood that there was in the Senate a general hope or feeling, with which the Opposition would be prepared to concur if the Government were of the mind, that the Senate would not sit tonight. But we are quite prepared to sit in view of the statement of the Leader of the Government in the Senate that he wants this Bill debated. We are quite prepared to debate it.
– Order! The Leader of the Government in the Senate is discussing with his officers the question of whether the Senate should go on. That is a question for the Senate itself to decide.
– Everyone wants to behave in a civilised fashion. I understand in plain terms that the Opposition will not support the passage of the Bill.
– That is right.
– I am told definitely by the Leader of the Opposition that the Liberal Party in the Senate will oppose the Bill.
– And we will too.
– The members of the other Opposition parties including the Australian Democratic Labor Party will also oppose the Bill. It cannot be passed. Then I accept the proposition that in no way can this measure be placed before the people before the Senate election. That being clear I will not oppose the matter being adjourned. I understood that there was some possibility that this measure might have been supported. But if it is clear that it cannot pass the Senate, there is no sense, I accept, in disrupting those who have made arrangements. Therefore, I ask that a motion be moved for the adjournment of the debate.
Debate (on motion by Senator Greenwood) adjourned.
Consideration resumed (vide page 317).
- Mr President, 1 asked for the adjournment of this matter this morning. It was thought that some of my colleagues might wish to speak to the motion. We are of the opinion that the faster these committees are set up and start working, the better. I would suggest, if the Senate is agreeable, that the question be put.
Question resolved in the affirmative.
– Order! In conformity with the sessional order relating to the adjournment of the Senate, I hereby put the question:
That the Senate do now adjourn.
– I wish to make only one observation. I think that by reason of that omnibus resolution which has just been agreed to for the reconstitution of the Senate Standing Committee on Constitutional and Legal Affairs and the reference to that Committee in December 1973 of the Constitution Alteration (Simultaneous Elections) Bill which, by the said resolution, is now made a reference again to the Committee, we have a nice pot of porridge of a constitutional mixture similar to that which was discussed this afternoon.
– The answer to what Senator Wright says is that the Senate’s proceedings are to be understood to take effect in some reasonable fashion. Consideration of the Bill to which the honourable senator referred lapsed. No action relating to it is operative as far as we are concerned. I know that Senator Wright is being facetious. What he implies cannot be deduced from any reasonable reading of the matter. I thank him for his injection of a little humour into the proceedings at the end of a hard week.
Question resolved in the affirmative.
Senate adjourned at 5.5 p.m.
The following answer to a question upon notice was circulated:
As a result of detection of a high level of mercury in school shark, the Commonwealth in conjunction with certain State governments have been co-operating to develop alternative fisheries for the fishermen involved.
In South Australia, this program is under way at a cost of $78,600 which is shared on a dollar for dollar basis by the State and Australian Government.
In addition, funds totalling $79,000 being provided for study of the southern rock lobster population.
Other approved projects either under way or about to commence in South Australia include:
Inshore and offshore squid fishing: Otter trawling for fish; Danish seining for fish.
Cite as: Australia, Senate, Debates, 14 March 1974, viewed 22 October 2017, <http://historichansard.net/senate/1974/19740314_senate_28_s59/>.