Tuesday, 31 May 1988 The PRESIDENT (Senator the Hon. Kerry Sibraa) took the chair at 10 a.m., and read prayers. The Clerk —Petitions have been lodged for presentation as follows: To the Honourable President and Senators in the Senate in Parliament assembled. The humble petitioners of the undersigned citizens of Australia wish to express their opposition to the privatization and de-regulation of the Australian telecommunications system and to the proposed implementation of timed local calls and directory assistance charging. Your petitioners pray that the Australian Government will take the necessary action to prevent any such privatization, de-regulation, timed local calls, and directory assistance charging. And we, your petitioners as in duty bound will ever pray. by Senator Cooney (from 68 citizens). To the Honourable the President and the members of the Senate in the House assembled. The petition of the undersigned respectfully showeth: That we most strongly oppose the process of `food irradiation' by Cobalt 60 or any other radioactive substance. That we oppose the introduction of regulations that will facilitate the food irradiation process being permitted by State Governments. That we express our deep concern at this attempt to extend the use of radioactive substances and exposure of workers to radiation. Your petitioners humbly pray that the Senate ban the importation of radioactive Cobalt 60 or other radioactive substances for the purpose of food irradiation and disallow regulations permitting the irradiation of food in Australia. And your petitioners as in duty bound will ever pray. by Senator Coates (from 114 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth: (1) That we are totally opposed to the proposal for the establishment of a gambling casino in Canberra or the Australian Capital Territory. (2) That a casino in Canberra would detract from the unique character and status of our National Capital. Your petitioners therefore most humbly request the Senate and the Government of the Commonwealth of Australia to reject any proposal or legislation which would permit the establishment of a casino in the Australian Capital Territory. And your humble petitioners as in duty bound will ever pray. by Senator Reid (from 143 citizens). To the Honourable the President and members of the Senate of the Commonwealth Parliament assembled The petition of these residents of the Commonwealth of Australia respectfully showeth That the Australian Broadcasting Corporation provides the citizens of the Commonwealth of Australia with the only nation-wide, independent radio and television service That the independence of the Australian Broadcasting Corporation must be preserved in the interests of the citizens of the Commonwealth of Australia That the introduction of commercial sponsorship or any form of advertising material from commercial sources, would destroy the independence of the Corporation. Your petitioners therefore humbly pray that the Honorable Senators will oppose the introduction of any form of sponsorship or advertising material from commercial sources into the programmes of the Australian Broadcasting Corporation. And your petitioners as in duty bound will ever pray. by Senator Tate (from 473 citizens). To the Honourable the President and members of the Senate in Parliament assembled. The petition of the undersigned citizens of Canberra respectfully shows: The ACT Schools Authority has acted in an unfair and improper manner in rejecting, without notice or justification, the Planning Criteria of its Draft Plan ``Community Schools for Canberra 1989-2000'', in which context it had invited communities to respond, and in reaching decisions that conflict completely with those criteria. The ACT Schools Authority, by acting in this way, has set a precedent for arbitrary school reorganization throughout the whole of Canberra, in which schools can be closed at any time without prior notice or consultation, and without effective justification. The Page Community has been denied natural justice by the decision to close its neighbourhood school, because that decision was made without warning, without consultation, and without right of appeal. The Page Community is the only one in Canberra that has been given no opportunity to respond to a specific draft proposal for closure of its school. Your petitioners therefore pray that: The Senate note our strong and united protest at the ACT Schools Authority's decision to close Page Primary School. Noting that, the ACT Schools Authority identified only two options for school reorganization in the South Belconnen area, and that it has chosen to implement neither, and that the people of the ACT are shortly to be given the possibility of self government; the Senate resolve that no South Belconnen schools be closed until the ACT Schools Authority has: (a) developed a complete and integrated plan for the educational needs of the South Belconnen area; (b) developed and publicized educational and social criteria for maintaining, relocating, reorganizing or closing schools; (c) assessed all schools against these criteria; (d) presented these results for public review, with a full range of options; and (e) allowed reasonable time for community consultation prior to decisions being taken and implemented. And your petitioners as in duty bound will ever pray. by Senator Reid (from 428 citizens). To the Honourable the President and members of the Senate in Parliament assembled- The petition of the undersigned expresses concern that some scientists in Australia are intent on undertaking destructive experimentation on human embryos. This subject was examined exhaustively by the 1985-1986 Senate Select Committee on Senator Harradine's Human Embryo Experimentation Bill which received 270 submissions and more than 2,000 pages of evidence. The report of the Senate Committee recommended in October 1986 that the Commonwealth Government make unlawful any destructive experiment which frustrated the development of the human embryo. Your petitioners therefore request the Senate and the Government of the Commonwealth of Australia to: Implement without delay the major recommendation of the Senate Select Committee to outlaw destructive experiments on human embryos. And your petitioners as in duty bound will ever pray. by Senator Harradine (from 204 citizens). To the Honourable the President of the Senate and members of the Senate in Parliament assembled: The petition of the undersigned shows that it is 37 years since the Chinese military occupation of Tibet, during which time the Chinese government has acted with little regard for Tibetans' human rights or national sovereignty, has involved the Tibetan people and their region in the production of nuclear weapons and is currently planning a programme to dump nuclear waste in Tibet, none of which-as indicated by recent civil unrest in the region-is in keeping with the wishes of the Tibetan people. We, the undersigned citizens of Australia, urge the Australian Government to undertake all steps within its power in support of the First World Zone Of Peace in Tibet, as proposed by His Holiness the Dalai Lama of Tibet. And your petitioners as in duty bound will ever pray. by Senator Tate (from 1,244 citizens). Petitions received. Senator COLLINS(Northern Territory) —Pursuant to my notice of intention given yesterday, I now withdraw Business of the Senate Notice of Motion No. 2 relating to Meat Inspection (Victoria) Orders. Senator COLLINS(Northern Territory) —Pursuant to standing order 109a, I give notice that immediately after Question Time I shall withdraw Business of the Senate Notice of Motion No. 1 standing in my name for this day for disallowance of the public rental housing assistance program. I seek leave to make a short statement. Leave granted. Senator COLLINS —The public rental housing program is one of a number of very important quasi-legislative instruments recently made to regulate the administration of public housing in the Australian Capital Territory. The Committee raised with the Minister for the Arts and Territories, the Hon. Gary Punch, MP, a number of questions concerning the scope of Administrative Appeals Tribunal review rights, the protection of personal privacy and the powers of the Commissioner for Housing to act in the the public interest. The Minister has given the Committee undertakings to extend appeal rights; to better protect personal privacy and reduce the discretion of the Commissioner to release certain private information to a more specific level. In three matters the Minister was reluctant to confer particular review rights where he thought that this would be inappropriate. The Committee has asked that these particular matters be the subject of a reassessment by the Committee and the Minister in 12 months time to determine whether there is a need for avenues of redress to remedy any particular types of grievance that may tend to arise. The programs which the Committee scrutinised are significant and the Minister's letter is an important statement of his attitude on them. I therefore seek leave to incorporate the Minister's letter in Hansard for the information of honourable senators and others. Leave granted. The letter read as follows- Senator Bob Collins Chairman Senate Standing Committee on Regulations & Ordinances Parliament House CANBERRA ACT 2600 Dear Senator Collins I refer to your letter of 21 April 1988 in which you raise a number of issues in relation to various programs Gazetted under the Housing Assistance Ordinance 1987. I appreciate the detail with which you have outlined the Committee's concerns and your examples of how some matters of a similar nature have been dealt with in the past. Because of the number of matters raised, I think it best if I deal with each in turn. PUBLIC RENTAL HOUSING ASSISTANCE PROGRAM: REVIEW RIGHTS You have encouraged me to consider an appropriate amendment to give AAT appeal rights in regard to three matters. I understand from your letter that you are concerned that persons subject to these decisions are not given a right of appeal to the AAT. In regard to the first, the power to move refugees from temporary accommodation, I have been informed by the Commissioner for Housing that this power has a very specific function in moving refugees from emergency, short term accommodation, into the regular public housing scheme. A notional number of properties are kept free for refugees (see clause 12 (3)). When this temporary housing is provided, refugees must be eligible and are therefore required to make application for public rental housing in the normal way (see clause 12 (2)). This involves being placed on a waiting list. When accommodation becomes available in the usual way, subclause 12 (4) enables the transfer of the refugee applicant to another property if appropriate. In every case, the person's needs and preferences are discussed with the person and every effort is made, within the guidelines, to meet any request. From the above, it may be seen that the practical use of the power is unlikely to cause grievance. Indeed, its effect is even less likely to have a serious impact upon a person's business, reputation or livelihood. Nevertheless, I am mindful of the Committee's concern that welfare recipients be given appeal rights in a manner which is clearly apparent to them. I have therefore directed the Commissioner for Housing to prepare a variation of the program to make a decision under paragraph 12 (4) (b) subject to the appeal rights in clause 21. I turn now to the Commissioner's discretion to transfer a tenant. I am informed that there are a variety of circumstances under which the power in paragraph 19 (1) (b) to transfer a tenant is required. It may be necessary where the Commissioner has decided to dispose of a property or to redevelop the site, where the site has become uninhabitable because of fire or burst water mains or other service problems, or when the Commissioner becomes aware of changed circumstances in the household such as marital breakdown. It may also be used, as a last resort, to remove a person or persons who have been a source of tension and disturbance in the neighbourhood. I have decided to direct that the Program be varied so that every exercise of this power except a decision to dispose of or redevelop a property may be reviewed by the AAT. Relevant criteria will be set out in the Program. A decision of the Commissioner to sell or redevelop a property is a different but complementary aspect of the Commissioner's role in providing housing assistance generally in the ACT (see principle 2 (b) of Schedule 1 to the Ordinance). I consider that as a manager of Commonwealth assets the Commissioner should be free to take full advantage of a commercial opportunity or to make a decision on the upgrading or alteration of any particular site. Of course, such a decision would be subject to compliance with the general law concerning planning and building standards. I do not say that tenants should have no rights of appeal in these circumstances. On the contrary, I propose that persons thus affected should have rights of appeal to the AAT in relation to the standard and location of the housing to which it is proposed they be transferred. The third case you mention is subclause 21 (3) which provides that the Commissioner may of his or her own motion reconsider and affirm, vary or revoke a previous decision on an application. This provision enables the Commissioner to review previous decisions in the light of further information. I agree that the provision should be amended to provide for review rights where the Commissioner revokes or varies an earlier decision in a way which has unfavourable consequences for a person. Nevertheless, I do not think that an appeal should lie from a decision under clause 21 (3) affirming an earlier decision or a decision that no ``sufficient reason exists for reassessing a decision'' (note the distinction between these two types of decisions in Bannister v See (1982) 45 ALR 146). There are two reasons for this. First, the original unfavourable decision could have been appealed under clause 21. To allow a subsequent appeal is really to extend the time for appealing indefinitely. Secondly, if new circumstances have arisen a fresh appealable application may be lodged at any time: I have asked the Commissioner to ensure that pamphlets on appeal rights explain this. The restriction of review rights to only those decisions to vary or revoke a previous favourable decision has legislative precedent: see Veteran's Entitlement Act 1986 s. 31 (11). Uncertainty of Laws You have expressed concerns about the potential inconsistency between clauses 16 and 17 of the Program and 15 (1) of the Ordinance. Subclause 16 (1) is transitional. Rent reviews are due to be completed shortly on all dwellings thus exhausting any remaining effects of the provision. Subclauses 16 (2) and 17 (1) which empower the Commissioner to determine the amount of rent payable must of course be read as being subject to the provision of the Ordinance. To make this abundantly clear, I have asked that the Program be amended accordingly. As a matter of interest, I am advised that rents were at the time of the commencement of the Ordinance higher than any figure arrived at from the application of Schedule 2 criteria. No inconsistency with the requirements of Schedule 2 therefore has arisen in practice. Public Interest In relation to clause 23 you raise questions about: (i) the sanction intended for disclosure by Public Servants of private information obtained in relation to the program; (ii) the nature of the information which may be divulged under paragraphs 23 (3) (b) and 23 (3) (c); and (iii) the use of ``the public interest'', as certified by a statutory official, as the criteria for disclosure of information under paragraph 23 (3) (a). It is intended that unauthorised breaches of privacy be dealt with under the provision of the Crimes Act 1914 which you mention. With respect to paragraphs 23 (3) (b) and 23 (3) (c), I agree that these provisions require clarification. I have noted your comments regarding the certification of ``public interest'' by the Commissioner for Housing. I also agree that this procedure is not suitable in this context. I am prepared to vary the Program by removing clause 23 and replacing it with a clause which specifically identifies the organisations to which information may be given, the type of information which may be released, and the circumstances in which such release may occur. There would then be no ``public interest'' provision. I assure the Committee that I am no less concerned than they regarding the proper protection of confidential personal information. I do, however, believe that there is a legitimate and proper use of such information in the prevention or detection of criminal activity. I note in this regard the reported comments of Mr Ian Temby QC, the Commonwealth Director of Public Prosecutions, who said ``it was absurd that fraud against the Commonwealth could be made easier by secrecy provisions and an enforced lack of communication between agencies'' [Canberra Times Tuesday 3 May 1988 at page 1]. I would expect the variation to the program to provide in similar terms to the recommendations of the government's fraud review; that is that the information to be released should relate to law enforcement and be connected with the investigation and prosecution of an alleged offence. In this respect it is my opinion that the categories of `prescribed authorities' (see clause 3 of the Program) should be widened to include the National Crime Authority and the Director of Public Prosecutions. In addition, I believe that the current absolute prohibition on production of this material in Court proceedings is inappropriate and I propose to amend that provision also. Of course, information relating to a person's own affairs would remain available to that person or their agent under the Freedom of Information Act or to their agent or attorney when so authorised. I would also expect the aggregated statistical information would not breach the secrecy provision. I have directed the Commissioner for Housing to act, subject to the Ordinance, in accordance with these principles in the period prior to such a variation being made. Drafting I recognise the force of the Committee's remarks on this point and have asked the ACT Administration to note the Committee's comments. DEFENCE FORCE RENTAL HOUSING ASSISTANCE PROGRAM Your question concerning the Commission's power to deal with Defence Force housing perhaps arises because of the naming of the program. A slightly more accurate but somewhat cumbersome title for the program would be: Public Rental Housing (Defence Force) Program and similarly the Public Rental Housing Assistance Program could alternatively be titled: Public Rental Housing (General Assistance) Program. These alternative titles emphasise that the programs relate to the stock of public rental housing owned or administered by the Commissioner. The Defence Force Rental Housing Assistance Program is thus authorised under paragraph 8 (1) (a) of the Housing Assistance Ordinance as being a program in relation to public rental housing. The reference in paragraph 8 (1) (a) to ``public rental housing'' (emphasis added) is a reference to the stock of houses under the Commissioner's ownership and control rather than a reference to rental housing for the public at large. This is apparent from a comparison with paragraph 8 (1) (c) which, among other things, refers to programs from income-related assistance to tenants. Such a reference would be unnecessary if paragraph 8 (1) (a) had the latter meaning. The phrase `public rental housing' and similar related phrases are also used extensively in Schedule 1 of the Ordinance (see eg. Principle 2 (b)) where it is clearly used to refer to government-owned, as opposed to privately-owned, housing. I should add that this program is a continuation of a program which has been operating administratively since the early 1970s. Under those arrangements and now by authorisation of the program, an agreed number (not specific dwellings) of public rental dwellings are made available and divided between the three Defence Services. With regard to your question about clause 5; I note that allocation of housing requires the assessment of the competing needs of other persons. An appeal on the merits, given that there is a limited stock of public housing, would require a consideration of the merits of other applications before the Commissioner rather than solely the merits of the particular applicant. On that basis therefore, it is arguable that a decision by the Commissioner to allocate a person to a particular house within the public housing stock should not be the subject of merits review: it would be necessary to allow the other applicants who were considered to cross appeal. If, however, the Committee insists that decisions regarding allocation of housing should be subject to external review, I am prepared to amend the Program. Having raised these concerns, I note that arguably the present Public Rental Housing Program provides for AAT review of decisions as to allocation of housing (see clause 8) as well as eligibility for assistance (see clause 4) on the basis that the allocation decision is made on the application (see clause 21). Whatever the position, I agree that there should be consistency between programs on this point. Clause 8 is in identical terms of clause 19 of the Public Rental Housing Assistance Program. I propose to amend it in the same manner. COMMUNITY ORGANISATIONS RENTAL HOUSING ASSISTANCE PROGRAM For the purposes of the program, it is the Commissioner who makes decisions under it. In practice, applications by Community Organisations are assessed by a committee of persons comprising relevant officers of the ACT Housing Trust and officers of the welfare area of the ACT Administration. This Committee brings a recommendation to the Commissioner. It is true that clause 4 has discretionary elements and decisions under subclause 5 (3) could have some effect on an organisation's priority in obtaining an allocation. However, the discretions are not so much directed towards the needs of the applicant but to a judgement as to the overall benefit to the community; in other words, to policy considerations. The Commissioner must not only be satisfied that the organisation is constituted in such a manner that the intended public benefit is properly secured, but also that the benefit is one which meets an unfilled need in the ACT in a manner which is consistent with the Commissioner's obligations under Schedule 1 of the Ordinance. This includes the Commissioner's obligation to give priority for those in greatest need, to co-ordinate programs and to maximise the social benefit of all assistance provided to the community. I do not believe that such an assessment involving as it does these policy issues, is appropriate for review by the AAT. I recognise that there may be differences of opinion in regard to the above. If the Committee is unable to agree with the conclusion I have reached and considers that the matter is sufficiently clear to warrant it, I am prepared to direct that a variation be made to the Program to provide appeals to the AAT under this clause. Regarding decisions under subclause 5 (3), I am advised that the properties made available are those which most nearly meet the requirements of the organisation. They are taken from the normal public rental stock as and when the property becomes available. It is unfair to prospective tenants and detrimental to the revenue of the ACT Housing Trust to hold the property available for longer than 14 days. Should an organisation seek to accept an offer of a property after this time and it has been allocated to a family who has been advised of its availability, it would be improper to alter that decision. Should such a situation occur, the organisation should be made to wait until another property becomes available. It would be open to the organisation in such a case to make a further application. LONG STAY CARAVAN PARK HOUSING ASSISTANCE PROGRAM I have previously mentioned my reservations about the suitability of AAT review for decisions to allocate a particular site from a limited stock to a particular person. However, if the Committee insists, I will arrange for the variation of the Program to provide AAT review rights in relation to these decisions. I trust that this information is of assistance to the Committee. Senator COLLINS —I also seek leave to table the Committee's correspondence so that it is properly in the public domain. Leave granted. Senator REID(Australian Capital Territory) —I give notice that, on the next day of sitting, I shall move: That the Senate- (a) rejects the Federal Government's proposals to alter the rights of Commonwealth employees, by- (i) the removal of their common law right to sue the Commonwealth for injuries or illness sustained in the course of their employment, and (ii) the retrospective application of the new conditions the Government proposes to apply to Commonwealth employees, or former employees presently entitled to workers compensation. (b) recognises that the proposed changes to compensation entitlement have caused a great deal of anxiety to a group of people who have already suffered the disadvantage and trauma of having their working lives cut short, and a consequent reduction in their income; and (c) calls upon the Government to remove the retrospective elements and the abolition of common law rights from its compensation legislation. Senator CHANEY(Western Australia-Leader of the Opposition) —I give notice that, on the next day of sitting, I shall move: (1) That a select committee be appointed to inquire into and report upon the provisions of the Industrial Relations Bill 1988 concerning the registration and amalgamation of organisations. (2) That, in considering the provisions of the Bill, the Committee give particular consideration to: (a) the desirability or otherwise of the restrictions on registration of organisations contained in the Bill; and (b) whether the provisions on registration and amalgamation contained in the Bill will produce a union structure that reduces demarcation disputes and is conducive to improved industrial relations. (3) That the Committee report to the Senate on the first sitting day in August 1988. (4) (a) That the Committee consist of six Senators, three being Government Senators, and three being Senators who are not Government Senators nominated by the Leader of the Opposition in the Senate or by any minority group or groups or Independent Senator or Independent Senators. (b) That the nominations of the Opposition or any minority group or groups or Independent Senator or Independent Senators be determined by agreement between the Opposition and any minority group or groups or Independent Senator or Independent Senators, and, in the absence of agreement duly notified to the President, the question as to the representation on the Committee be determined by the Senate. (5) That the Committee proceed to the despatch of business notwithstanding that all members have not been duly nominated and appointed and notwithstanding any vacancy. (6) That the Chairman of the Committee be appointed by and from the members of the Committee. (7) That the Chairman of the Committee may, from time to time, appoint another member of the Committee to be the Deputy-Chairman of the Committee, and that the member so appointed act as Chairman of the Committee at any time when there is no Chairman or the Chairman is not present at a meeting of the Committee. (8) That, in the event of an equality of voting, the Chairman, or the Deputy-Chairman when acting as Chairman, have a casting vote. (9) That the quorum of the Committee be three members. (10) That the Committee and any sub-committee have power to send for and examine persons, papers and records, to move from place to place, to sit in public or in private, notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives. (11) That the Committee have power to appoint sub-committees consisting of three or more of its members, and to refer to any such sub-committee any of the matters which the Committee is empowered to consider, and that the quorum of a sub-committee be a majority of the Senators appointed to the sub-committee. (12) That the Committee be provided with all necessary staff, facilities and resources and be empowered to appoint persons with specialist knowledge for the purposes of the Committee with the approval of the President. (13) That the Committee be empowered to print from day to day such papers and evidence as may be ordered by it, and a daily Hansard be published of such proceedings as take place in public. (14) That the foregoing provisions of this Resolution, so far as they are inconsistent with the Standing Orders, have effect notwithstanding anything contained in the Standing Orders. Senator SANDERS(Tasmania) —I give notice that, on the next day of sitting, I shall move: That the following Bill be introduced: A Bill for an Act for preventing the proliferation of nuclear weapons by regulating the exportation of nuclear material and certain associated items from Australia. Senator MESSNER(South Australia) —I give notice that, on the next day of sitting, I shall move: That the Senate- (a) condemns the Government for its craven capitulation to the trade union movement by backing down on deregulating Australia's telecommunications market; (b) notes that the Government's failure to more fully expose Telecom to greater competition, especially in the first phone and mobile phone markets, will inevitably mean higher telephone prices for ordinary customers than necessary; (c) further notes that Australia's international competitiveness will not be enhanced to the extent necessary as a result of the Government's fairly mild attempt to liberalise our telecommunications system; (d) recognises that by removing the remaining tax and charge exemptions on the various public sector business enterprises, including Telecom, the Government is merely treating these organisations as milking cows for higher tax collections; and (e) calls upon the Government to institute more meaningful reform of Australia's telecommunications system, including the removal of Telecom's grossly inefficient monopoly on the first phone, and remove the Government imposed constraints that still remain on public sector business organisations like Telecom and Australia Post. Senator NEWMAN(Tasmania) —I give notice that, on the next day of sitting, I shall move: That the Senate- (a) notes that rollover funds as well as superannuation funds will now be liable for the new 15 per cent tax on investment earnings; (b) notes that the availability of tax credits from share dividends to superannuation funds provides an incentive for the funds to invest in the share market, and therefore increases the risk to contributors; and (c) condemns the Government for its dishonesty in suggesting that the changes will have a neutral effect on contributors. Motion (by Senator Bolkus for Senator Gareth Evans) agreed to: That, notwithstanding anything contained in the Sessional Orders or other Orders of the Senate, the sitting times for Wednesday, 1 June 1988, and Thursday, 2 June 1988, be as follows: Wednesday, 1 June 1988- 10 a.m. to 12.45 p.m. 2 p.m. to 8 p.m. Thursday, 2 June 1988- 10 a.m. to 6.30 p.m. 8 p.m. to 10.30 p.m. Motion (by Senator Teague) agreed to: That the Senate congratulates Archbishop Edward Clancy, of the Archdiocese of Sydney, on his nomination by Pope John Paul II to be a Cardinal of the Catholic Church and welcomes this recognition of the Archbishop's significant contribution to the Church and to the Australian community. Motion (by Senator Bolkus) agreed to: That Government Business Order of the Day No. 1 (Call of the Senate) be postponed till after consideration of Government Business Orders of the Day Nos 2 to 8 (Supply and Constitution Alteration Bills). [COGNATE BILLS: SUPPLY BILL (No. 1) 1988-89 SUPPLY BILL (No. 2) 1988-89] Debate resumed from 10 May, on motion by Senator Tate: That the Bill be now read a second time. The PRESIDENT —It may suit the convenience of the Senate to debate cognately the Supply (Parliamentary Departments) Bill 1988-89, the Supply Bill (No. 1) 1988-89 and the Supply Bill (No. 2) 1988-89. There being no objection, I will allow that course to be followed. Senator STONE(Queensland-Leader of the National Party of Australia)(10.10) —We are debating cognately the second reading of the three Supply Bills, namely the Supply (Parliamentary Departments) Bill 1988-89, the Supply Bill (No. 1) 1988-89 and the Supply Bill (No. 2) 1988-89. On behalf of the Opposition, I inform the Senate that in light of the extremely poor state of the Senate's timetable as a result of the Government's mismanagement of our business, we do not propose to debate the second reading of these Bills but are prepared to move straight into the committee stage. Senator WALSH(Western Australia-Minister for Finance)(10.11) —I do not want to delay the passage of the Bills. Question resolved in the affirmative. Bill read a second time. Supply Bills The Bill. Senator STONE(Queensland-Leader of the National Party of Australia)(10.12) —The first Bill for debate in the committee stage is the Supply (Parliamentary Departments) Bill 1988-89. Of course we shall have similar comments to make in respect of its companion Supply Bills, the Supply Bill (No. 1) 1988-89 and the Supply Bill (No. 2) 1988-89. After this Bill and indeed its accompanying Supply Bills were introduced in the House of Representatives, the Government moved in that House to amend the schedule for the Bill, on page 4, division 102, by adding to the previously existing paragraph (b) subparagraph (i) the words: (b) Was erroneously omitted from, or understated in, the Bill for this Act; The effect of this amendment in the House of Representatives was to widen significantly the category of expenditures which can be met from the Advance to the Minister for Finance. As honourable senators are aware the purpose of the Advance to the Minister for Finance item in each of the Supply Bills, and indeed corresponding items in the annual Appropriation Bills, is to act as a contingency provision from which what we have always referred to as urgent and unforseen expenditures can be met. The Advance to the Minister for Finance is therefore an item which is of considerable constitutional significance. The Parliament has developed extensive procedures to ensure that public moneys are not expended in the absence of specific appropriations for them having been approved in advance by the Parliament, whether by way of annual appropriations in the shape of the Appropriation Bills, which we finished dealing with last night, or special appropriations contained in the relevant appropriation clauses of the various statutes concerned which have the effect of appropriating under those statutes moneys from the Consolidated Revenue Fund for the purposes of the statute question. Supply Bills The significance of the Advance to the Minister for Finance is that it provides the Minister with authority to make certain expenditures other than in accordance with those carefully laid down procedures. It does so because all governments from time to time have genuinely urgent and unforeseen claims on their Budgets which it is necessary to meet before those claims can be covered by a specific appropriation item. Nevertheless, because the use of this item departs from the normal practice, the Parliament has developed strict procedures to ensure that the Advance is administered and used correctly. Accordingly, the Opposition has looked very closely at the amendment, moved by the Government in the House of Representatives after the Supply Bills had been introduced, to the traditional wording of this item and has inquired into the reasons for the proposed change. I may say that our investigations might have been facilitated had the Minister for Finance (Senator Walsh) taken the Opposition into his confidence in proposing this amendment in the first place. Particularly for that reason, I think it is important to put into the record of the Senate the chain of events which has led to this outcome. It has, I suggest, a number of rather unsatisfactory features but it is all the more important, for that reason, that it be recorded. The first link in the chain appears to have been report No. 289 of the Joint Committee of Public Accounts on the Advance to the Minister for Finance. In the course of its examination of that appropriation item, the Committee became aware of certain guidelines issued to departments by the Department of Finance governing departments' use of the Advance. In particular, the Committee became aware that, in interpreting the basic criterion that to be eligible for such financing the expenditures in question must be `urgently required and unforeseen', the Department of Finance had included the guideline that expenditure may be regarded as unforeseen: (iii) where, due to clerical error, or inadvertence, no amount or an insufficient amount has been provided in an Appropriation Bill, for particular expenditure, and funds are required to pay accounts from creditors. The Joint Committee sought from the Attorney-General's Department a legal opinion about that guideline and some other matters. That legal opinion is included, as appendix 4, in the report of the Joint Committee. In brief, as recorded on page 38 of the Committee's report, the legal opinion in respect of this particular matter, provided by Mr P. J. Clay for the Secretary to the Attorney-General's Department, reads as follows: Where, due to clerical error or inadvertence only, an amount for an expenditure has been omitted to be included in an Appropriation Bill, or an incorrect (and insufficient) amount has been included, I- that is, Mr Clay- do not think the expenditure can be regarded as having been unforeseen. Mr Clay went on to say: The wording of the Advance should, in my view, be amended if it is intended to apply in such cases. Some might think that a single opinion from an officer of the Attorney-General's Department hardly settles a matter of such moment as this. It is clearly a matter of interpretation or opinion. Indeed, the very fact that the alternative practice has been in existence for a number of years confirms that view. I think one could, without undue difficulty, argue a cogent case to the contrary of that which has been argued in this case by the Attorney-General's Department. Be my opinion on that matter as it may, it is interesting that the Joint Committee itself was apparently also not persuaded by the view of the Attorney-General's Department in this matter, because at paragraph 2.29 of its report it said: Although the Attorney-General's Department suggested amending the wording of the Advance if it is intended that clerical inadvertence be regarded as unforeseen, the Committee is not- I repeat, not- in favour of widening the use of- the Advance to the Minister for Finance. The Committee went on to say, in the following paragraph, 2.30: The Committee considers that amendment of the guidelines- that is, the Department of Finance guidelines- and stricter documentation requirements will reinforce that expenditure from the Advance must be for both `urgent' and `unforeseen' circumstances as specified by the Parliament. At the same time the Joint Committee of Public Accounts took the view, in paragraph 2.17 of its report, that: To facilitate early Parliamentary review more information should be included in the monthly statement of moneys made available from the AMF- which, as honourable senators are aware, is tabled in this place each month. Accordingly, pursuant to that view, the Committee went on to recommend in paragraph 2.18 of its report: The Committee recommends that: the monthly statement from the Department of Finance to the Parliament have appended applications made on the standard forms for funds from the Advance to the Minister for Finance so that the Parliament can see clearly for what purpose advances are applied. That is, of course, a move by the Joint Committee of Public Accounts, one of the most highly respected committees of the Parliament, to render transactions financed from this unusual contingency item in the Appropriations, or in this case the Supply Bills, transparent-to use a word from another jurisdiction. The Committee reported accordingly on 23 March of this year, and so far, one might say, so good. In due course, on 20 April this year to be precise, the Supply Bills were introduced into the House of Representatives, and the item Advance to the Minister for Finance, which was included in those Bills as originally introduced, was in the same form as had been customary, I think since 1981 or thereabouts. But on 26 April 1988 the Minister for Finance, Senator Walsh, wrote to the Chairman of the Joint Committee of Public Accounts, Mr Tickner, MHR, to inform him that the Government proposed to amend the three Supply Bills in the committee stage of the Bills in the House of Representatives in the light of, as he put it, the report of the Committee. The Minister said in his letter: We consider the amendments necessary in the light of legal advice regarding the definition of the `urgent' and `unforeseen' criteria which are required to be met before an issue may be made from the Advances to the Minister for Finance, the President of the Senate and the Speaker of the House of Representatives. He went on to say, after referring to the Committee's report which I have just quoted from: You- that is, Mr Tickner- state in that Report that the purpose of the contingency Advances is to allow for the smooth running of a Government by providing it with some flexibility. We consider that not to have access to funds because of inadvertence or clerical error would disrupt financial administration, is contrary to the intended purpose of the Advances and would certainly add to the burden of Parliamentary business. Somewhat gratuitously, perhaps, the Minister went on to say: We have made the assumption that the Parliamentary Departments would not wish to be so hampered in their financial administration and have proposed the same amendment to the Advances in the Supply (Parliamentary Departments) Bill 1988-89. It is not clear from the Minister's letter whether he consulted either the President of the Senate or the Speaker of the House of Representatives before going about their business for them in that way. Perhaps it would be convenient if I seek leave to incorporate in Hansard the full text of the Minister's letter. Leave granted. The letter read as follows- Mr R. E. Tickner, MP Chairman Joint Committee of Public Accounts Parliament House CANBERRA, A.C.T. 2600 Dear Mr Tickner Attached for your information is a copy of proposed amendments to the Supply Bills (Nos 1 and 2) 1988-89 and the Supply (Parliamentary) Departments Bill 1988-89 which my Government proposes to be moved in the Committee stages of the Bills, expected to be Wednesday or Thursday of this week. The Bills were introduced into the House of Representatives on Wednesday 20 April. We consider the amendments necessary in the light of legal advice regarding the definition of the ``urgent'' and ``unforeseen'' criteria which are required to be met before an issue may be made from the Advances to the Minister for Finance, the President of the Senate and the Speaker of the House of Representatives. The opinion was obtained by your Committee and is reproduced at Appendix 4 of Report 289 on the Advance to the Minister for Finance. You state in that Report that the purpose of the contingency Advances is to allow for the smooth running of a Government by providing it with some flexibility. We consider that not to have access to funds because of inadvertence or clerical error would disrupt financial administration, is contrary to the intended purpose of the Advances and would certainly add to the burden of Parliamentary business. The only alternative to an amendment to the wording of the present clauses in Appropriation Acts would be the introduction, for urgent passage, of additional Appropriations Bills to meet individual cases where a Government is inextric- ably committed to meet payments. We have made the assumption that the Parliamentary Departments would not wish to be so hampered in their financial administration and have proposed the same amendment to the Advances in the Supply (Parliamentary Departments) Bill 1988-89. I would be happy to make officers of my Department available to explain in more detail the type of administrative difficulties which would be encountered should the amendments not be included in all future Appropriation and Supply Bills. Yours sincerely PETER WALSH Senator STONE —I thank the Minister. On the following day, 27 April, the Chairman of the Joint Parliamentary Committee of Public Accounts replied to the Minister for Finance. He did so after convening a special meeting of his Committee to consider the Minister's letter. The key passage in Mr Tickner's letter reads: It is acknowledged by the Committee that there are circumstances where inadvertence or clerical error occurs where it is appropriate that the Advance should be used. He was, therefore, accepting the Minister's proposal. He continued: It is in this light therefore that the Committee supports the proposed amendments, however- this is the key point- This support is conditional upon the second recommendation of the Committee being accepted. That is the one to which I referred earlier. He continued: This recommendation states: The monthly statement from the Department of Finance to the Parliament have appended applications made on the standard forms for funds from the Advance to the Minister for Finance so that the Parliament can see clearly for what purposes advances are applied . . . Apparently the Minister did not accept that condition laid down by the Chairman of the Joint Committee of Public Accounts. Therefore, the Opposition proposes to correct this oversight by moving to amend the relevant items of the three Supply Bills before us in each case in terms of the amendments which the Opposition has had cause to be circulated in this chamber. I seek leave to move three amendments together to the Supply (Parliamentary Department) Bill. Leave granted. Senator STONE —I move: (1) The Schedule, page 4, Division 102, paragraph (b) of the statement of purpose set out in the Division, after ``Parliament'' insert: ``in respect of each month as soon as practicable after the end of the month, in a document including a copy of each application, made in accordance with guidelines and a form of application determined by the President, for the expenditure of funds from this advance, and a copy of those guidelines''. (2) The Schedule, page 4, Division 104, paragraph (b) of the statement of purpose set out in the Division, after ``Parliament'' insert: ``in respect of each month as soon as practicable after the end of the month, in a document including a copy of each application, made in accordance with guidelines and a form of application determined by the Speaker, for the expenditure of funds from this advance, and a copy of those guidelines''. (3) The Schedule, page 5, Division 108, paragraph (b) of the Statement of purpose set out in the Division, after ``Parliament'' insert: ``in respect of each month as soon as practicable after the end of the month, in a document including a copy of each application, made in accordance with guidelines and a form of application determined by the President and the Speaker, for the expenditure of funds from this advance, and a copy of those guidelines''. Senator WALSH(Western Australia-Minister for Finance)(10.27) —Senator Stone has moved three amendments which are identical in wording; certainly, they are identical in their effect. The subclause was added to the Supply Bill by way of amendment in the House of Representatives, as Senator Stone has said, and for the reasons he has given. That is, an Attorney-General's Department opinion had been received that the urgent and unforeseen provisions did not cover items which had been erroneously omitted. Some people question whether that opinion from Attorney-General's was in fact sound, but the Government made the judgment that it was too important to run the risk of letting it be tested at some later stage and, therefore, included in the Bill, by way of amendment, the addition to state explicitly that items erroneously omitted from or understated in a Supply or Appropriation Bill at the appropriate time would be explicitly covered by the Advanced to the Minister for Finance (AMF). It is worth noting for the record that the guidelines defining urgent and unforeseen, as approved by then Senator Guilfoyle in 1979, I think, explicitly recognised that they should cover errors of omission. The one item we know of now which was omitted from the Supply Bill, and indeed it is still not explicitly covered in it, was an advance of some $620,000 to the Australian Institute of Sport. There may well be other errors of omission which have not yet been discovered. Therefore, I go back to my original point: knowing that clerical error is always possible, that uncertainty prompted the Government to move the amendment it has moved. Let me outline a few facts regarding the specific amendments which Senator Stone has moved. Firstly, for all individual items in excess of $50,000, on the first available sitting day following the end of the month, which is usually within one week of the end of the month, provided Parliament is sitting, a list of those individual items is tabled. The smaller amounts are set out in detail when the final charge from the Advance to the Minister for Finance is appropriated. The maximum time delay could be as much as five or six months. The effect of Senator Stone's proposition is that all items, not just the individual items above $50 000, be tabled at the same time and in the same way as the items in excess of $50 000 are now tabled. There is nothing wrong with that in principle, but there are some practical difficulties in implementing it, both in regard to the amount of paperwork which would be floating around and the clerical work which lies behind it. I am informed that 381 copies of the monthly AMF report are produced for tabling and circulation. If the average of 50 or so individual AMF applications per month were added to the number which is already published, that would increase paper requirements by a factor of 10. In other words, 20,000-odd additional pieces of paper would be required to be published each month, as well as, of course, the clerical effort and cost which would lie behind circulating that volume of paper. Our view is that it is not justified, particularly when the details, albeit with a longer time lag, are ultimately available. Therefore, the Government will not accept the amendments. Senator STONE(Queensland-Leader of the National Party of Australia)(10.32) —I thank the Minister for Finance (Senator Walsh) for his response. With respect, I do not believe that the major part of his response addressed the nature of the amendments which the Opposition is moving. The Minister described for the benefit of honourable senators the present procedures in relation to the monthly tabling of the statement in relation to the Advance to the Minister for Finance. Of course, we are familiar with those procedures. He enumerated the fact that the monthly advice contains a list-I repeat the word `list'-of items greater than $50,000 where the Advance has been used. As he also added, the smaller items-that is, amounts of less than $50,000-are rounded up, so to speak, at the end of the year. The Minister went on to say that if the Parliament were to accept the Opposition's amendments there would be a great multiplication of paperwork. To be fair to the Minister, that is to some degree true. There would be some additional paperwork. I have no doubt that the Joint Committee of Public Accounts took that into consideration when it made the proposal to which the amendments are directed to give effect. The key point which was omitted from the Minister's response is that what the Public Accounts Committee recommended, and what the amendments that are now before this Committee would have the effect of providing, is that the monthly statement would have appended to it the actual applications made on the standard forms by the various departments for funds from the Advance so that the Parliament-I quote from the Committee recommendations-`can see clearly for what purpose advances are applied'. I have not had any opportunity to discuss this matter with the Chairman of the Joint Committee of Public Accounts, Mr Tickner. However, from my discussions with another member of that Committee, it is clear to me that what the Joint Committee of Public Accounts had in mind was that the present use of the Advance, including any inadvertently omitted purposes, has become rather too casual. There is perhaps an assumption that the Advance is there to be used and it should be used. I have no doubt whatsoever that, as in many other areas, the belief in the minds of the members of the Joint Committee of Public Accounts was that to expose those concerned who are involved in making those applications to some parliamentary scrutiny of what the actual applications are for-after all, it is proposed that they be made on standard forms-would provide some kind of disincentive to that rather cavalier approach to the use of the Advance to the Minister for Finance. It is entirely appropriate and it is exactly what the surveillance procedures of the Parliament are at their best in being used for. I would hope that the Minister would not continue to resist the proposal, because it is a proposal which would help him and his Department in their attempts to exercise greater discipline on the use by departments of this contingency item. Everybody accepts that the contingency item, the Advance to the Minister for Finance, is there to be used in appropriate and proper circumstances. But what I think the Committee is perhaps pointing to-and what we certainly support it in pointing to-is that the approach to the use of that item may have grown a little sloppy. If people in the departmental structure became aware that their applications, in the form in which they are made to the Department of Finance, will actually be submitted and brought to the attention of senators, they will be somewhat more careful before making them. Perhaps also the Minister's own officers-not that I am in any way suggesting that they are negligent in granting access-will bring an even more rigorous eye to the granting of access. Through those incentives-disincentives in one case and incentives in the other-there will be a better and more proper use of the Advance than seems to be the case today. I therefore put it to the Minister that the Opposition amendments are not only designed to support the Chairman and the whole Joint Committee of Public Accounts in what the members laid down as a condition to their agreement to the amendment that the Minister has made. We are not opposing the Government's amendment made in the House of Representatives; we are saying that the amendment which is now included in the Bill before us should be complemented by the other amendment which the Joint Committee proposed as a condition for its agreement to the first amendment. I hope that the Minister will give further consideration to the position he previously stated and indicate that the Government is prepared to accept that amendment supported unanimously by the Joint Committee of Public Accounts, chaired by a member of his own Party-quite rightly so; the Government being as it is today. I hope that the Minister will not resist simply for the sake of resisting but will accept that there is a genuine public good involved in this amendment proposed by the Opposition and that he will bend his not inconsiderable mind to accepting it. Senator WALSH(Western Australia-Minister for Finance)(10.39) —I said that Dame Margaret Guilfoyle approved the guidelines in 1979. She was not Finance Minister then. It was in fact in 1981. I want to correct that. The Department of Finance is, and has been for some time, examining ways of achieving the results that the Committee seeks without the cumbersome load of paper that would be required for doing it in precisely the way that the Joint Committee of Public Accounts suggested. But as yet the Department has not been able to devise some way of fulfilling the objective, if one likes, without entailing a great deal of paper and clerical effort. But we will keep it under examination. Senator HARRADINE(Tasmania)(10.40) —I support the amendments. The listing of items above $50,000 has been around for some considerable time. I recall before entering this Parliament that one particular department indicated, `This will be right. It is below $50,000. Some arrangements can be made'. I feel that it would be a matter of common good and proper practice if the procedures which were recommended by the Public Accounts Committee were adopted and if Senator Stone's amendments were adopted. If the chamber passes these amendments it will assist, in my view, the Minister for Finance (Senator Walsh) to keep a tighter control on considerable amounts of money. Individual amounts below $50,000 are not considerable but in total the amounts are quite considerable. It seems to me that one of the reasons advanced for the automation of the Public Service, with all its computers and so forth, was to get rid of a lot of the paperwork. I cannot see how there would be a considerable amount of paperwork. Why would all these people need copies of the material? Why is the material simply not in a computer where eligible people can have access to it? Two copies of the material could be sent to the Parliament: one to the House of Representatives and one to the Senate to be tabled. I am not sure-and perhaps Senator Stone could enlighten me-whether the Public Accounts Committee actually recommended that the material be tabled in the Parliament or be delivered to each member of parliament. I would have thought that tabling in the Parliament would suffice. It seems to me that the only reason, other than the clerical reasons mentioned by the Minister, is the problem of excess paper. I cannot see that as a real problem, given the benefits and savings that could be obtained by the Government if these procedures were put in place. Senator STONE(Queensland-Leader of the National Party of Australia)(10.43) —I rise to respond to the question which Senator Harradine addressed to me. I think the Minister for Finance (Senator Walsh) could equally have responded to it. The actual recommendation from the Public Account Committee relates to the statement which comes to us here each month. In that sense the Minister is correct in saying that it would result in some increase in the amount of paper being tabled in this place, but that does not mean to say that Senator Harradine's alternative formulation could not be turned to at some point. Question put: That the amendments (Senator Stone's) be agreed to. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 32 Noes . . . . . . . . . . . 35 —— Majority . . . . . . . . . 3 —— Alston, R. K. R. MacGibbon, D. J.Archer, B. R. Messner, A. J.Baume, Peter Newman, J. M.Bishop, B. K. Panizza, J. H.Bjelke-Petersen, F. I. Parer, W. R.Boswell, R. L. D. Patterson, K. C. L.Chaney, F. M. Puplick, C. J. G.Chapman, H. G. P. Reid, M. E. (Teller)Crichton-Browne, N. A. Sheil, G.Durack, P. D. Short, J. R.Hamer, D. J. Stone, J. O.Harradine, B. Tambling, G. E. J.Hill, R. M. Teague, B. C.Knowles, S. C. Vanstone, A. E.Lewis, A. W. R. Walters, M. S.McGauran, J. J. Watson, J. O. W. Aulich, T. G. Haines, J.Black, J. R. Jenkins, J. A.Bolkus, N. McKiernan, J. P.Burns, B. R. McLean, P. A.Button, J. N. McMullan, R. F.Childs, B. K. Macklin, M. J.Coates, J. Maguire, G. R.Collins, R. L. Morris, J. J.Colston, M. A. (Teller) Powell, J. F.Cooney, B. C. Ray, RobertCoulter, J. R. Reynolds, M.Crowley, R. A. Sanders, N. K.Devereux, J. R. Schacht, C. C.Devlin, A. R. Sibraa, K. W.Evans, Gareth Tate, M. C.Foreman, D. J. Walsh, P. A.Gietzelt, A. T. Zakharov, A. O.Giles, P. J. Brownhill, D. G. C. Richardson, G. F.Baume, Michael Jones, G. N.Calvert, P. H. Beahan, M. E. Question so resolved in the negative. Bill agreed to. Bill reported without amendment; report adopted. Bill (on motion by Senator Walsh) read a third time. Debate resumed from 10 May, on motion by Senator Tate: The the Bill be now read a second time. Senator STONE(Queensland-Leader of the National Party of Australia)(10.53) —As in the case of the former Bill, the Supply (Parliamentary Departments) Bill, we do not propose to speak to the motion for the second reading of Supply Bill (No. 1) 1988-89; we are willing to move straight into committee. Question resolved in the affirmative. Bill read a second time. The Bill. Amendment (by Senator Stone) negatived: That the House of Representatives be requested to make the following amendment: The Schedule, page 17, Division 310, subparagraph (b) (ii) of the statement of purpose set out in the Division, after ``Parliament'' insert: ``in respect of each month as soon as practicable after the end of the month, in a document including a copy of each application, made in accordance with guidelines and a form of application determined by the Minister, for the expenditure of funds from this advance, and a copy of those guidelines''. Bill agreed to. Bill reported without requests; report adopted. Bill (on motion by Senator Walsh) read a third time. Debate resumed from 10 May, on motion by Senator Tate: That the Bill be now read a second time. Senator STONE(Queensland-Leader of the National Party of Australia)(10.55) —As in the case of the two preceding Bills, it is not the intention of the Opposition to speak further on the second reading of this Bill. Our general comments in this area have already been expressed in the second reading debate on the Appropriation Bills which we concluded last night, and the Opposition is, therefore, prepared to move straight into committee. Question resolved in the affirmative. Bill read a second time. The Bill. Amendment (by Senator Stone) negatived: Schedule 2, page 13, Division 868, subparagraph (b) (ii) of the statement of purpose set out in the Division, after ``Parliament'' insert: ``in respect of each month as soon as practicable after the end of the month, in a document including a copy of each application, made in accordance with guidelines and a form of application determined by the Minister, for the expenditure of funds from this advance, and a copy of those guidelines''. Bill agreed to. Bill reported without amendment; report adopted. Bill (on motion by Senator Walsh) read a third time. Consideration resumed from 26 May. Clause 2 (The Senate). Senator CHANEY(Western Australia-Leader of the Opposition)(10.58) —I just wish to pick up the threads of the debate which we left last Thursday when the Senate adjourned at 10.30 p.m. We had had a quite extensive discussion on clause 2, which I certainly do not wish to go over again, the fundamental point of which was that clause 2 is a clause which removes from section 7 of the Constitution the existing fixed term for senators of six years. I simply ask the Minister for Justice (Senator Tate) to do no more at this stage than to confirm what he said on 26 May-namely, that this particular provision of the referendum Bill, clause 2, does change the current provision of the Constitution, does remove the fixed term and does, in that sense, alter what the framers of the Constitution had envisaged as the way in which the Senate would be composed and would operate as to the terms of the members of the Senate chamber. In other words, I would really like to get this debate off so that we have some continuity and have Senator Tate confirm what he had to say at page 3054 of Hansard of 26 May. Perhaps the simplest thing would be for him to look at the marked passage and read it into the record, in which case, as far as I am concerned, I would have nothing further to say on clause 2. Senator TATE(Tasmania-Minister for Justice)(11.00) —It is quite clear that this referendum Bill does change the current provisions in the Constitution in relation to the terms of members of this chamber, in so far as, at the moment, they are elected for a fixed term. As I said on page 3054 of the Senate Hansard of 26 May: In that respect this proposal alters what the framers had envisaged as the way in which the Senate would be composed and would operate as to the terms of the members of the Senate chamber. It is a proposal to change the terms of senators to four years so that the terms of both members of this chamber and of the House of Representatives run for the same period. Senator CHANEY(Western Australia-Leader of the Opposition)(11.01) —I thank the Minister for his answer. I ask the Minister a very simple question. Can he confirm that that element of the proposal, that change to the fixed terms of senators, which has the effect that he has just described, is not mentioned in the long title of the Bill? I simply want the Minister's confirmation that that is the case. Senator TATE(Tasmania-Minister for Justice)(11.01) —I do not entirely agree that that is the correct way to note the relationship of my previous answer to the long title of the Bill. The long title of the Bill states: A Bill for an Act to alter the Constitution to provide for 4-year maximum terms for members of both Houses of the Commonwealth Parliament. I think anyone who has any inkling of the present situation, which, as we have agreed, is for fixed terms of six years, would understand that that long title provides for a superseding of the present position in order to provide for four-year maximum terms for members of both Houses of the Commonwealth Parliament, clearly including the Senate chamber. Senator CHANEY(Western Australia-Leader of the Opposition)(11.02) —I ask the Minister: Does he believe that a person, the average voter, if you like-the person who will be called upon to vote on this-reading the long title of the Bill, which is what will appear on his ballot paper, and to which he has to write yes or no, has his or her attention directed to the change from a fixed term of six years to a maximum term of four years? Does the Minister suggest that the long title specifically draws to the attention of an elector the fact that we are leaving behind, abolishing, a fixed term arrangement? Senator TATE(Tasmania-Minister for Justice)(11.03) —I believe that most Australians would understand, when confronted with a referendum proposal, that of course they are altering the current situation provided for under the Constitution. In so far as they are confronted with a proposal that the Constitution be altered to provide for four-year maximum terms for members of both Houses of the Commonwealth Parliament, I am quite confident that the average Australian voter would understand that thereby the present situation of fixed terms of six years is being altered. Senator WALTERS(Tasmania)(11.04) —When we were debating this matter last week, the Minister for Justice (Senator Tate) acknowledged during questioning that this proposal does indeed interfere with the role of the Senate at the moment. The Minister chose to say that the proposal would alter the characteristics of the Senate. He refused to acknowledge that those characteristics gave it a power that under this legislation would certainly be done away with. What the Opposition was claiming during that debate was that the independence of the Senate from the Prime Minister of the day, the independence that this legislation proposes to do away with-resulting from the Senate having a fixed term-encourages the Prime Minister if he wants to take the Senate to an election at least to stick to that fixed term and stops him from going to elections very much too early. Indeed, it limits rather than increases the number of elections that can be held. All this legislation would do-the Minister acknowledges this-is give the Prime Minister the opportunity of taking the whole of the Senate and the House of Representatives to the people as often as he chose, whenever he liked, whenever it suited him politically to do so. The Minister acknowledges all that. The Minister claims that because it is a four-year term that is proposed, even though the Prime Minister (Mr Hawke) has never used his full three-year term, he might be encouraged to go to an election less often. That is not what the legislation provides, and in this chamber we can look only at what the legislation provides. Indeed, the legislation provides that the Prime Minister can take the whole of the Parliament-the whole of the Senate and the House of Representatives-to the people whenever he likes. We on this side look at the matter factually and say that this legislation is proposing to strip the Senate of its power of independence. The Minister chooses to say that it proposes to strip the Senate of its characteristics of independence. I am quite sure that people will be able to judge which is the correct term. I ask the Minister whether it is a fact that in the past, and not so very long ago, it was written into the Australian Labor Party policy that the Senate should be abolished? Senator TATE(Tasmania-Minister for Justice)(11.07) —I am very glad that Senator Walters has brought that up because, yes indeed, it was part of the Australian Labor Party platform at one stage that the Senate chamber be abolished. Very fortunately, I, amongst others, had a role at the National Conference back in 1978 or 1980, I cannot recall exactly, when that particular plank in the platform was itself abolished, if you like. The fact was that the Australian Labor Party has recognised, I believe correctly, that the Senate chamber plays an important role in our Australian democracy and that its composition, drawn as it is from the six original States plus the two Territories now, and the way in which it is composed under the electoral system provided for, really creates a chamber which plays a very important role in our democratic deliberations as elected representatives of the Australian people. Indeed, I think it is the case that the Senate's ability to make a stand against the House of Representatives, which is, of course, in our Westminster system controlled by the Government, increases the stature, if you like, and enhances the strength of the Senate. Under this proposal, every four years the Senate will be freshly elected by the Australian people and, having been composed at the same time as the House of Representatives, will have a strength to its claim to represent the Australian people in a way which it does not, I believe, have at the moment with the staggered and rotated fixed terms. Senator COONEY(Victoria)(11.09) —May I add something to the excellent answer the Minister for Justice (Senator Tate) has given. Indeed, I commend him for the patient and lucid way in which he has explained this Bill over the last couple of days. Much has been made of the independence of the Senate. Clearly, it is a body that is separate and independent from the House of Representatives. One matter I would like to raise is this: what elections are all about is who shall govern, and when elections are held it is the government that goes to the people and the people who give their verdict on that government. In this chamber there is a great proportion of the government; in fact we have nine excellent Ministers who form part of it. I cannot see why it is not proper for that portion of the Government to go to the people at the same time as the rest of the Government. Senator Chaney —And with any luck some of them will lose. Senator COONEY —If we did lose government, and heaven help that does not happen, Senator Chaney would be over here forming part of the Government and it would only be proper at the end of the four years when his colleagues from the House of Representatives went to the people that he should do likewise because he would be a very eminent figure in any government formed by the coalition. Why is it fair for his Leader in the House of Representatives to go to the people but not him? Why is it fair that he can hide behind three, four or eight-year fixed terms so that his responsibility to the Government is not put to the test? Where is the fairness in that? On the other hand, if Ministers were removed from this chamber, if the Opposition were to say there should be no Ministers in this chamber, there would be a very strong argument for having separate elections and two terms. But honourable senators cannot have it both ways. Honourable senators cannot be part of a responsible government and at the same time pretend that they are not. That problem was foreseen by such people as Mr Alfred Deakin, as he then was, when the founding fathers were debating this matter. He said that it was hard to have responsible government living with, in effect, a House of review. It seems to me that that is the very question the Opposition has not addressed. Why should not a House which contains a very high proportion of Government members, both Cabinet and non-Cabinet Ministers, be put to the test at the same time as their colleagues in the House of Representatives? If, as I think it should, the term of the House of Representatives is to be increased to a four-year term, in conformity with every other parliament in Australia except that of Queensland, which is the only parliament where a three-year term remains, are we going to give senators eight years in this place without having to go to the people? The proposition that the Senate have an eight-year term was never put by any founding father. Indeed, one founding father said it should have four-year terms and certainly a term no greater than six years because honourable senators should not be afraid to put themselves before the people. Senator CHANEY(Western Australia-Leader of the Opposition)(11.13) —I rise with some reluctance because we have had a very lengthy debate on clause 2. But Senator Cooney has brought in an artful and irrelevant new argument on which I thought I should at least very briefly express a view on behalf of the Opposition. Senator Cooney fails to distinguish between the dual roles that are filled by people in both the Senate and the House of Representatives as members of the Executive and members of the legislature. We are debating a fundamental change that goes to the character of the Senate as a legislative chamber. In those circumstances Senator Cooney is importing an argument about some senators being Ministers in a way which totally ignores the fact that our fundamental concern about the changes being made in the Constitution Alteration (Parliamentary Terms) Bill 1988 is that the Senate as a chamber, as an institution, is having some of its fundamental qualities changed. The importance of the changes being made is that they do go to the Senate's quality as a legislative chamber because they go to its independence. The reality is that there is very limited parliamentary independence from the Executive, whether it is in this national Parliament or in the State parliaments, but the high point of legislative independence in Australia is undoubtedly this chamber. I do not wish to re-canvass all of the arguments about why that is so and the role of the minority parties, et cetera. Without taking any more time of the Committee I suggest that Senator Cooney has put an artful argument but one which does not go at all to that fundamental concern about the maintenance of the Senate as a chamber which has a genuine and separate legislative function which at times it chooses to exercise even in the teeth of the normal overbearing attitude of the Executive Government. I do not make that comment in a partisan way. Governments by their nature wish to control the legislative process. If Senator Cooney is ever a Minister-I am sure all of us who regard him with goodwill would hope that he one day would have that opportunity, perhaps in the twenty-first century-I can assure him that he would find that there is a most extraordinary vanity in the bureaucracy about the legislation which is introduced by governments. The thought that elected members of parliament might interfere with the expertise that has been put before the parliament seems to cause the most extraordinary heartache. They manage to convey this heartache to their Ministers who adopt, in most cases, the most extraordinary proprietary air about every dot and comma. The legislature is treated with contempt. That is the simple factual situation which we in the Senate have actually managed to get around a bit by way of the Senate Standing Committee on Regulations and Ordinances and the Senate Standing Committee for the Scrutiny of Bills. I remember I put up the proposal for the Scrutiny of Bills Committee and was then part of the Government which knocked it on the head. It was only a rebellious Senate that put it in place. I remember with very great pleasure that I was the first Minister in the Fraser Government, when I was representing at that time the Minister for Primary Industry in this place, to adopt amendments put forward by the Scrutiny of Bills Committee. Amendments were made to a series of Bills because the Parliament had pointed out that they were defective. All of that is part of the reality that is touched by this referendum. I say to Senator Cooney, therefore, that his argument is essentially a distraction. I hesitate to use the term `red herring' because that term seems to be blessed by its usage by Senator Robert Ray. Senator Ray keeps accusing the Opposition of throwing in red herrings. In this case, it is Senator Cooney who has thrown in the red herring. His arguments go not at all to the real question of whether we will make changes which will reduce the very limited-even in the Senate-genuine legislative activity which takes place in this Parliament. I do not regard this chamber as just a rubber stamp for the bureaucracy, but that is a very unpopular view particularly in the bureaucracy and also amongst Ministers because of the process of infection. For that reason I think we should be very concerned about any change which will reduce that tiny remaining vestige of parliamentary life in this country. Senator HARRADINE(Tasmania)(11.18) —I think what Senator Chaney has said should be taken to heart by Senator Cooney. I have heard some talk of the Constitution in this particular referendum debate and in other debates, but I have not heard such a very strange interpretation of what the Constitution is all about as I just heard from Senator Cooney. Senator Boswell —Would you say it was a shallow argument? Senator HARRADINE —I think it is scraping the bottom of the barrel. That is how deep it is, rather than how shallow. Senator Cooney was trying to make a good job, as any lawyer would do, of a bad case, and Senator Chaney has responded adequately to his intervention. I want to go very briefly to a question that was raised when we were last dealing with this issue on 26 May. I refer to the comment made by Senator Tate in answer to my question about the real purposes of this measure. We are talking about the first question that is to be posed to the people dealing with maximum terms. As recorded on page 3056 of Hansard, I asked Senator Tate: Am I to understand that the principal reason advanced by the Government for this measure is that it would do something to solve the problems of the Senate blocking Supply? The Minister responded: No, this proposal does not attempt to address that problem. In fact, that is the distinguishing characteristic between this proposal and that which was put, I think, in Senator Rae's referendum proposal and by the Australian Electoral Commission. I imagine that that should read, `the Constitutional Commission'. Senator Tate said: We do not attempt to address the question of Supply at all. I want to contrast that statement by Senator Tate to this chamber-he is the Minister in charge of the Bill-with the statement of the Attorney-General, Mr Lionel Bowen, on 11 May 1988 on the AM program when referring to this measure. The Attorney-General of Australia, in commenting about the first proposal, said: I'm not optimistic about the first one. I think I'd win the other three without the support of the Opposition because they affect the rights of people. But the first one certainly comes into the usual political knock down struggle of who's going to win, and we do need bipartisan support on it. Here is the salient point: It would be much easier if John Howard and his Party were to face up to the fact of, what we do about the Senate's power over Supply, and also why shouldn't a Senate be answerable for its actions. That's the issue. Here we have the Attorney-General saying one thing and the Minister for Justice (Senator Tate) saying exactly the opposite. What I want to know is who is misleading whom. Is Senator Tate misleading the Senate or is the Attorney-General, Mr Lionel Bowen, misleading the public-or does he not know what it is all about? I agree that Senator Tate is not misleading the Senate, but I would like him to clarify for me and for this chamber the obvious discrepancy as to the Government's intention in this regard. Senator TATE(Tasmania-Minister for Justice)(11.23) —I do not think there is a discrepancy. It is the case that the referendum proposal does not attempt to confront the question of Supply in the way, for example, that was put forward by the Constitutional Commission, which had it in mind that the Senate ought not to be able to refuse Supply for the first three years of a four-year term. Mr Lionel Bowen was certainly saying on the AM program-I did not get the quotation down completely-that, in a political sense, he would like the Leader of the Opposition, Mr Howard, to come to grips with the question of Supply. But the Government has very consciously put aside and behind it the proposal put forward by the Constitutional Commission to deal with Supply and is confronting the political situation which Mr Bowen would have liked Mr Howard to come to grips with. The political situation is that there will be no agreement in the Australian political system about whether or not the Senate ought to be able to refuse Supply to a government which retained the confidence of a majority in the House of Representatives. In that situation we are quite adamant that this proposal does not deal with Supply. Indeed, as recorded on page 2559 of House of Representatives Hansard for 18 May, the Attorney-General, Mr Lionel Bowen, in speaking to the Constitution alteration Bills, said: I cannot understand this nonsense of saying we are interfering with the powers of the Senate. We are not interfering one iota with its powers. We are recognising now and for all time that those in the Senate who have no powers to initiate money Bills and no powers to amend money Bills have a power to veto money Bills and deny the very lifeline of the Government. It is quite clear that the legislation before us does not deal with the problem of Supply being refused by this chamber. That is a very conscious difference between this Bill and that which was proposed by the Constitutional Commission. Senator HARRADINE(Tasmania)(11.25) —I just want to have it made very clear that, as Senator Tate indicated in the Parliament last week, there is no suggestion of the Yes proposition being linked with the question of Supply. Senator Tate, as I recall it, said that there was no implication that the Yes case was somehow linked with Supply. For the purposes of the record, I think it is important to note that the Attorney-General (Mr Lionel Bowen) is taking a different tack. He threw the Supply question into the debate even before the issue came before this Parliament. Will he do it again or does he not understand the legislation? Do we have an Attorney-General who does not understand the fundamentals of the Bill that is before us? For the purposes of the record let me quote precisely what was said on AM. The interviewer was a Peter Thompson. The interview went as follows: PETER THOMPSON: Would you be optimistic that these referendums can still pass in the community in a majority of States, now that the Opposition is opposed to them. LIONEL BOWEN: I'm not optimistic about the first one. I think I'd win the other three without the support of the Opposition because they affect the rights of the people. But the first one certainly comes into the usual political knock down struggle of who's going to win, and we do need bipartisan support on it. It would be much easier if John Howard and his Party were to face up to the fact of, what do we do about the Senate's power over Supply, and also why shouldn't a Senate be answerable for its actions. That's the issue. PETER THOMPSON: Just a brief final one. Why did you go ahead with these bills before the second report of the Constitutional Commission? LIONEL BOWEN: We had the report on this one. This was, as I say, a draft report back in October, which John Howard and Co. rejected, because it had the basis. There was to be no dissolutions in the first three years of a Parliament and the Senate could not reject Supply in the first three years. Now the Opposition rejected that and I've come to a compromise of trying to make it four years for both, in other words, we weren't out of kilter, and then they're still stuck with it, the Commission. But my suggestion is to have it on the basis we go to the people together, and the Senate always be answerable for its actions. Now Mr Howard doesn't want that, he wants to give Senators 8 year terms. I think the public opinion think that's far too long. If honourable senators can make anything out of that, the Attorney-General seems to be throwing in the issue of the Senate's power to block Supply, I agree that the Minister for Justice (Senator Tate) and, indeed, the Attorney-General, if he knew what he was talking about-or even if he did not know what he was talking about-would be quite honest and straightforward on this aspect. I am trying to achieve a clear cut debate so that the people know what we are talking about. I seek confirmation that this issue of the power of the Senate to reject Supply should not enter the discussion of the question that is now before the Parliament. As to the other matter on which I seek clarification, Senator Tate, as recorded on page 3059 of Hansard, made the following acknowledgment: Given the different way in which it is actually composed- that is, the Senate- and given the fact that one would only need a 7 1/2 per cent quota in order to gain or secure a place in this chamber, we will have a type of representation of the Australian community every four years which would give to this chamber added weight in its deliberations on matters sent up by the other House. I would be grateful if the Minister could clarify for the chamber precisely what that means. I do not wish to delay the committee stage any further. Senator TATE(Tasmania-Minister for Justice)(11.30) —In relation to the last matter, I was simply making the point-and I think Senator Harradine was in the chamber at the time and he took some pride in the fact that he never needed 7 1/2 per cent but was installed by the Tasmanian people on roughly a 15 per cent quota-that because of the way in which this chamber is elected, with the Australian Democrats and several Independents, three including Senator Robert Wood in a sense, we have a chamber which indeed reflects different strands of political conviction in the Australian community which are not represented in the type of chamber that is composed by the House of Representatives method of voting, with single member electorates. Quite clearly, just a simple glance at both chambers reveals the basis for the different type of representative quality and character which is possessed by this chamber, compared with the House of Representatives. As regards the first matter, I think I can only repeat that this Government has taken a very conscious decision not to embrace the proposition put forward by the Constitutional Commission that the question of Supply be tackled by stripping the Senate of the power to defer or refuse Supply in its first three years of a four-year term. Indeed, it remains perfectly open to this chamber, after the passage of this referendum, to defer the Supply Bills or actually refuse their passage by voting against them should they be presented at any time in the future. The reason why I was not acceding to Senator Walters's pleas that I make some sort of admission that the powers of the Senate were altered by our proposal was that I had in mind very specifically that the power of the Senate to deal with Supply Bills is not in any way affected by this referendum proposal. I have said that the six-year fixed term characteristic of the chamber will change, and I do not think I can reiterate the points any more. Senator WALTERS(Tasmania)(11.33) —I intervene to say that I am not persuaded by Senator Tate's point that minority groups are able to be well represented here. That is one thing. I agree with the Minister for Justice (Senator Tate) that we should have representation of those minority groups, but it is possible for a minority group, elected on a primary vote of just over one per cent, to have full control of the government of the day. One or two of those people in here can have the final say on every piece of legislation that goes through this place. Therefore, the Minister should face the detail of the facts that he is not making available to the people. I get back to my theme. I asked the Minister earlier whether it was indeed past Australian Labor Party policy that the Senate should be abolished. The Minister said yes, that it was past Labor policy but that he had changed his mind and indeed he was one of those who had been instrumental in having the policy changed, he thought in about 1980, at one of the Labor conferences. I remember very well, and I am sure the Minister does, the comments made by Senator Gareth Evans at the time. If the Minister would like me to get the quote, I will. Senator Evans said, `It is not popular with the people of Australia to have that up front in Labor's policy, so let us get it out of our policy. But we can still work very hard underneath for the ultimate abolition of the Senate. But because it is not a popular thing to have up front in our policy, we should debate it'. When Senator Evans came into this place he said that the best way to abolish the Senate was to white-ant it from within. Senator Boswell —He did not say that? Surely he would not have said that! Senator WALTERS —Of course he did, and the honourable senator knows that only too well. It underlines the fact that the true aim of the Labor Party has always been to abolish the Senate. Even though it may well have been taken out of Labor policy because, as Senator Evans said, it was unpopular with the people, those opposite could still, and indeed do, work very hard underneath for its abolition. As Senator Evans said, to enter the Senate is the best way to white-ant-from within. Senator Button in 1983, and many other Labor senators, acknowledged that the simultaneous elections referendum issue put up at that stage was also to strip the Senate of its powers. So it is no use the Minister saying here, in 1988, that that is no longer Labor Party policy as set down in its platform. We know why it is not policy in the platform; Senator Evans made it very clear at the time. So there really is little use in the Minister trying to pull the wool over our eyes at this late stage. Senator BURNS(Queensland)(11.36) —Senator Chaney and others have indicated that they feel the motivation of the Australian Labor Party in respect of the Senate is not all pure. Whilst I may have had some concern about motivation over many years, it has never been the bottom line for me. I instance a man drowning in a dam in a farmer's paddock. The farmer drags him out. His motivation is only that it is unsightly to have a body floating around in the dam. Of course the fact that he saves the man is important, and I am sure the man will not jump back in again. I make that point to show that we should look at the effect, the bottom line, of what we seek to do with this proposal. Senator Chaney talked about the House of review aspect of the Senate. The capacity of the Senate to be a House of review is in no way interfered with by the proposal that is before the chamber. It simply says that if at an election for the House of Representatives a government is to be judged on its policy, its past activity, its record and what it intends to do and reinstated or removed, at the same time the Senate should have to go to the people and answer for its attitude to the various aspects of policy and laws that have been passed or are intended to be passed. The people will not be told that because three years ago the Australian Democrats and the Independents won the balance of power, in the Senate with their votes, and the Opposition now finds that obnoxious, that situation cannot be changed for another three years. Those opposite believe that the people should be able to elect members of the House of Representatives to enact legislation and pay them good salaries but also pay good salaries to the people of the Senate to reject those laws that it wants passed. If they tell me that is logical and that is the way for a progressive and thinking society to go, I have to disagree. I do not disagree that the people have the right to take that attitude-that I would defend to the last-but whether it is correct or not, I would question very forcefully. Let us look at one other aspect that has been canvassed here: the role of the Senate when it was established as a States House. The Queensland branch of the Liberal Party very clearly wants the referendum question on the principle of one vote one value to be carried. On the other hand, the Federal Liberal Party says that it does not. A number of honourable senators representing the Liberal Party would oppose the very people who elected them. They would oppose their own people in Queensland. Those States House representatives who are here to look after the interests of Queensland are to be stood over and domineered by a person such as John Stone, who, if he could do so, would increase the imbalance of electorates. Senator Chaney —Mr Temporary Chairman, I raise a point of order. We are in the committee stage of this debate. It seems to me that the honourable senator is ranging rather wide. Indeed, he is touching on a different referendum. In deference to the Government's concern to see some progress on these matters, quite apart from anything else, I suggest that the honourable senator be reminded that we are debating the parliamentary terms legislation, not the so-called fair elections legislation, and he might, therefore, come back to the Bill. The TEMPORARY CHAIRMAN(Senator Teague) —Order! The Committee is considering the question that clause 2 stand as printed. I ask Senator Burns to confine his remarks to relevance to that question. Senator BURNS —It is very difficult to do that, but I accept your decision, Mr Temporary Chairman. I close by saying that I believe, as I have said, that this proposition does not interfere in any way with the Senate as a House of review. It gives the people of Australia a real opportunity to change the government and to have the policy they want carried by both legislative chambers. Senator BOSWELL(Queensland)(11.42) —I wish to put a different point of view to Senator Burns. Of course a four-year term obstructs any decision that the Senate may make. Obviously, if a government has its legislation amended, blocked or altered in some way, it can take the Senate out at any time it chooses. Presently, if a government has its legislation knocked back or amended and does not accept the amendment, it has the option of calling a double dissolution, but first it has to re-present the Bill in the Senate within three months. If the Bill is not accepted and is rejected by the Senate on that occasion, the Prime Minister of the day can call on the Governor-General and seek a double dissolution or another election. The Constitution Alteration (Parliamentary Terms) Bill takes away that right so that any time the Opposition, with the Independents or the Australian Democrats, obstructs legislation, the Government can call an election immediately. If that situation had applied in the last three or four years, an identity card would have been presented to the Australian people as a fait accompli. Because we had the right to block the ID card legislation, during that time the momentum of objections built up to such an extent that the Government, after going to an election, was so pleased when Senator Stone found a loophole that most Labor senators had to go round sucking lemons to keep the smiles off their faces. They knew that, if the ID card proposal had gone through, they would have been dismissed. The momentum really built up during the election and that led to the demise of the ID card. Another example is the Bill of Rights. The Government's legislation was passed in the lower House and was rejected by this chamber. It was not so much rejected; while the legislation was held up in this chamber, public opinion built up so much that the Government, for its own survival, had to withdraw it. Section 45 of the Trade Practices Act is another provision that would have escaped if the Senate had not existed. Immediately we reject or alter such legislation, under the proposal before us the Government would call an election and go straight to the people. If the legislation before us becomes law, the other House will be put in a predominant position over the Senate. The Senate will be just the rubber stamp of the House of Representatives. Everyone can see that. It is completely misleading for the Government to seek to do that under the guise of having four-year terms. If Senator Tate can explain to the Committee how this legislation will guarantee a four-year term, I will support it. However, it does not do so. It is not stated anywhere in the legislation that a four-year term will be guaranteed. What will happen, as surely as night follows day, is that as soon as any important legislation which the Government wants to go through is amended, it will immediately call an election-whether it is one year, two years or three years into its term. We will be going to the people at the drop of a hat. I believe that the Government is trying to emasculate the Senate. It has been said by Senator Walters from Tasmania that it has always been the intention of the Labor Government to abolish upper Houses and the Senate. That would be ruled out by the people. They want that safeguard, that brake, that insurance policy, there. The Government knows quite well that the people would not accept the abolition of the upper Houses in the States and the Senate, so it has approached the question from another angle; it has driven in from another tack. The Government has decided to abolish and emasculate the power of this Senate. It will no longer be the insurance policy on which this nation has relied for 61 years. Every time the Government is obstructed, we will go to the people. We will not have elections every two years, as we have for the last 43 years; we will be going out every 12 or 18 months. That is what we have to be terribly careful about. I agree that Independent senators have a place in the Senate. I think that Senator Harradine has made a worthy contribution to the Senate. He rightfully deserves his position here. However, I understand that Senator Harradine achieved around 15 per cent of the vote; he received a full quota. What will we do when the quota goes down to 7.69 per cent? I note that Senator Ray is writing this down; I hope that he will address the question. Unfortunately, he indicates that he will not do so. The Senate will have representatives from the extreme left and the extreme right and every single-issue party. There will be all sorts of single-issue groups-such as a group which wants water fluoridation-thus making it impossible for this place to pass any legislation without backroom deals being done. I do not recall very many times in this session of Parliament-I think that it would be only three or four-that the Democrats have supported the Opposition's side in a division. We could ask, without reflecting on the vote of the Senate: What sorts of deals have been done? Why did the Democrats change their position on the resource rent tax? Why do they approach things from completely different angles? Why do they support legislation when previously they supported the Opposition in opposing it? We will have to set up a little room in which the Government can negotiate with all the odds and sods and other remnants that will creep in under a quota of 7.69 per cent. Under those circumstances there will never be a time when a government will be able to have its legislation passed. If the people of Australia support and have confidence in the Government and the Senate, they will give that Government and the Senate their imprimatur to pass legislation by giving the Government a mandate for both the lower House and the upper House by voting for Government candidates and thus allowing the Government to gain enough representation to govern. That Government would deserve to have its legislation passed. That will never occur if this Bill is passed. All sorts of people who gain only one per cent or 2 per cent of the vote are elected. There will be trade-offs and backroom deals. Committees will be set up. People will say, `If you set up a committee to investigate nuclear power in Australia, I will support some Bill or other'; `If you set up a committee to investigate organically grown food, I will support this or that Bill'. The Parliament will be run by backroom, under-the-counter deals. That is not good for Australia or for parliamentary representation. If this legislation is passed, we will not escape that situation. We have already seen it occur in this place. Therefore, I would reject this legislation on that scenario alone. When one adds together the two scenarios, one has a real problem. One would have not only emasculated the Senate, but also cemented in place all single issue groups. We know that the Australian Democrats obtained 7 per cent of the vote throughout Australia. They are the ones who really control the Senate. I do not accept that that is in the best interests of Australia. In fact, I think it is appalling that a party that attains 7 per cent of the vote controls the passage of the Government's legislation. It is not in the best interests of this nation. I ask Senator Tate-I hope to ask Senator Robert Ray as well, while he is in the chamber-to answer this question. I know that it concerns Senator Ray, as it must concern Senator Tate, as an honest senator from Tasmania. Will they address those two problems? Senator ROBERT RAY(Victoria-Minister for Home Affairs)(11.52) —I will speak very briefly, since Senator Boswell invited me to do so. He made a few points. He said that there is no guarantee that a government's term will run for four years if this proposal is carried in the electorate. That is correct. Probably, the preference in Australian Labor Party policy and in reality is that we would have preferred fixed four-year terms. It was made very clear by the Opposition last year that that was unacceptable. One of the reasons why a fixed four-year term proposal was not introduced was in order to accommodate the Opposition. I am not here to argue that we have been totally amenable to accommodating the Opposition, but in that regard, that is why the word `fixed' was removed from the proposal. Senator Boswell also talked about upper Houses as though they were absolutely wonderful. If they are so wonderful, why has his Party not reinstated one in Queensland? The upper House was abolished in 1922 or 1924. Senator Boswell —The Labor Party abolished it. Senator ROBERT RAY —The Labor Party abolished it. Senator Lewis —He is not in the upper House in the State Parliament. He is in this Parliament. That is totally irrelevant. Senator ROBERT RAY —Senator Lewis, it is well known that Senator Boswell is an influential member of the National Party in Queensland. I am not even being sarcastic when I say that. I wonder why that Party has not sought to re-establish the upper House. Will Senator Boswell argue that Queensland politics have been irretrievably scarred by the absence of an upper House in the last 30 years? Probably not. Senator Chaney —The answer to that is yes. Senator ROBERT RAY —Senator Chaney, with his loyalty to the coalition, says that it has. That must come as a shock to Senator Boswell. Senator Boswell has made many comments today about, if you like, the free kick to minority parties. We do not differ very much on this issue, but it conflicts with the other view opposite that this chamber must be a blocking chamber. Once there is a government majority, it is no longer a blocking chamber. If we on this side of the chamber had a majority, we would have already adjourned for the session; I admit that. If the Opposition, in government, had a majority, it would not dilly-dally by having long and tedious debates. The debates would be reasonably long, but the Government program would be determined by the Government. There is a contradiction in the argument that Senator Boswell put forward today. He wants this chamber to be a blocking chamber yet he wants to do away with minority groups. No-one on this side of the chamber would disagree that it is wrong for democracy to have a minority group dictating to governments, be they coalition governments or Labor governments; but that is part of the new federal compact. It would not be a problem if the House of Representatives was the dominant House with dominant powers. Proportional representation has always been good at distributing representation. It has always been the worst possible method of distributing power. That is where the distinction lies. If the Houses were not of equal power, proportional representation would not have that dictatorial effect that Senator Boswell alluded to. Of course, it is in our hands and the hands of the Opposition to change the voting system for the Senate and cut out all the minority groups. We could go back to the old block voting system used prior to 1949. We could use a sophisticated d'Hondt system to cut out the minority parties. That is open to us, but I have not seen any willingness on either side to promote that proposal. I will refer very briefly to a few other arguments. This issue has been raised: What happens if the Prime Minister wants to take both Houses to an election? I ask: What are honourable senators opposite afraid of? Are they afraid to go to the people for judgment? Senator Boswell would realise that at the moment many people in Queensland are pushing for voters' initiative referendums. Senator Lewis —You are arguing that you want four years so that the Prime Minister will not call an election at any time. You cannot have it both ways. Senator ROBERT RAY —Let me develop the argument and Senator Lewis might then respond. One of the arguments against us is, `Are you afraid to go to the people?' I ask honourable senators opposite: Are they afraid to go to the people? In regard to early elections, there is a penalty on any Prime Minister who goes to the electorate early. People ask, `Why are you calling an early election?'. The biggest victim was the Premier of South Australia in 1978. Senator Maguire —It was 1979. Senator ROBERT RAY —In 1979. Mr Corcoran called a very early election and paid the penalty. The Prime Ministers who have gone to the polls very early recently have always had an excuse. In 1977 and 1984 Mr Fraser and Mr Hawke used this excuse: `Look, we have to hold a Senate election anyway because the Houses are out of kilter after a double dissolution. Let's go early'. They had that excuse and they were able to use it. In this circumstance, those excuses disappear. I say this seriously: any Prime Minister, once given a four-year term and once having argued for a four-year term, who wants to call an early election will pay a big political price. People will say, `After all, we have given the Government four-year terms and here they are, two or 2 1/2 years down the track, wanting an early election'. It is a very untenable position and it weakens the arguments of those opposite to a large extent. While we are arguing about the length of terms, only a month ago Mr Greiner was complaining about the hangover regarding the people elected in 1978 who have a say in the election of the President of the Legislative Council in 1988. He was terribly upset by that process. The conservative parties in this country must be consistent. If we were to suggest to the public that there should be eight-year terms for senators, this referendum would be dead in the water on day one. The public will not support eight-year terms. It is much more realistic that they would support a four-year term. No-one opposite argues against a four-year term for the House of Representatives. The arguments are all to do with this chamber. I would like Senator Boswell and other honourable senators opposite to argue for eight-year terms and have the public accept that they could have elected a senator in 1980 and he would be ending his term in about three months time. Senator Boswell —I have never had a term longer than two years and I have been here six years. Senator ROBERT RAY —Of course you have not. But Senator Boswell and the Opposition suggest that we have double the House of Representatives term or an eight-year term. Senator Lewis —This clause deals with six-year terms. It doesn't deal with eight-year terms. Senator ROBERT RAY —No, but in the electorate it would be treated as an eight-year term. That is very hard to argue at a Federal level. I concede that it has been a bit easier to argue for eight-year terms at a State level where people are not quite so concerned with the terms of parliament. Let me go to the final matter because I know we want to wind up this debate. Senator Chaney —Come Minister, you are not going to wind it up. Senator ROBERT RAY —No, I am not going to wind it up. Senator Lewis —You have just encouraged people to come into the debate. Senator ROBERT RAY —Senator Lewis, this time I have been trying to argue the case dispassionately. I was invited by Senator Boswell to meet some of the serious points which he has raised. Running through the argument is a view that we do not accept: that the Senate, as an institution, should be inherently conservative. I have heard that argument mounted several times in this debate. Honourable senators opposite cannot expect us to accept as a valid argument that we should have the whole system matched so that this is a naturally conservative institution. That may be their point of view but they cannot expect us to accept it. Senator Walters especially pushed this line in her previous speech. We on this side do not necessarily have to accept that. We really do think that more and more in this country governments should establish a mandate and try to carry it out. I concede that we all fall short of that. But I do not think that a mandate given eight years ago would be a sufficient one on which to judge policies these days. Some of the points made by Senator Boswell were not directly relevant to this issue but I can agree with him that we should not be doing anything to promote minority dictation in this chamber. I conclude on this point. When the next election is called and it comes to the crunch, because of the historic division and the fear between both parties, we will again send our preferences to minority groups and allow those with 2 per cent or 3 per cent, either in a half-Senate election or in a double dissolution, to get in because we can never send preferences to each other. Even if we did, we would be afraid of the reaction of the minority parties picking one of us off and destroying us or our chances in the House of Representatives. That is a dilemma we face with minority groups. I am quite happy to see the continuation of proportional representation in upper Houses around Australia. After all, the Australian Labor Party has introduced proportional representation in South Australia, and New South Wales. It has attempted to do so in Victoria and may very well do so in Western Australia. I am not sure where it is up to in those proposals. It is all very well to come into the chamber and say that 11 years ago Senator Button said this and Senator Gareth Evans said that. I just ask honourable senators opposite to look at our record in terms of upper Houses. We have given up the fight to abolish; we have said we will reform and change them to a different type of chamber. That is why we have gone for proportional representation in four States. Currently the Labor Party policy does not have a plank for abolition of the Senate. Senator LEWIS(Victoria)(12.04) —I must say that the Minister for Home Affairs (Senator Robert Ray), rather than terminating the debate on this clause, has just opened it up. That caused me some concern. So much of what he was talking about-such as eight-year terms and such things-was a complete red herring. We are dealing with clause 2 of the Constitution Alteration (Parliamentary Terms) Bill. Clause 2 proposes to delete from the Constitution the paragraph which reads: The senators shall be chosen for a term of six years. It has nothing to do with inserting a provision for eight or even four years. This provision in the Constitution deals with the fixed term of senators. I was interested to hear Senator Robert Ray say that the Labor Party favours fixed terms, but what it is doing here is taking away the fixed term of senators. Let me put my position clearly because I want Senator Ray to understand this: I am totally opposed to fixed terms in the House of Representatives for many reasons which I have put in this House on a previous occasion. If he likes I will give him my paper on the subject. There are many reasons, from both a parliamentary and an executive government point of view, why it is unwise and unsound to have a fixed term in the lower House. As an example, look at what is happening and has been happening in Papua New Guinea ever since the very clever Australian bureaucrats devised fixed terms for the PNG Parliament. On the other hand, our clever founding fathers-believe it or not it turns out, with hindsight, that they were clever-decided that they would not give a fixed term to the lower House but that they would give a fixed term to the upper House, the Senate. They thereby created a brake on the Prime Minister and the executive government of the day calling an election at any time they felt like it. They can still do so and if they have to they will, but the consequence of a government calling an election out of synchronisation with the Senate is that, in due course, the government will have to face a half Senate election. Because a half Senate election is treated as some sort of by-election the result is usually devastating for the government of the day. Senator Robert Ray —I agree with that. Senator LEWIS —I see that Senator Robert Ray agrees with me. That is a very substantial brake on the Prime Minister of the day calling an election unless he can fit it into having a half Senate election at the same time. That has been proven by history because on only four or maybe five occasions has there been a half Senate election by itself. So Prime Ministers have been aware of this brake. I am not saying that the founding fathers were able to walk on water but they gave about 10 years consideration to the constitutional problems of this country. They had before them the Constitution of the United States of America and how that had been established. They were able to select from all the wisdom of a couple of centuries of Westminster type government and they chose carefully and wisely to provide the lower House with a non-fixed term and the upper House with a fixed term. I put it to the Minister that clause 2 of this Bill takes away the fixed term of the Senate. I ask: How on earth does the Government justify putting that to the people when it claims that it supports fixed terms in general? Senator SHEIL(Queensland)(12.08) —After listening to the recent section of this debate, I would like the Minister for Home Affairs (Senator Robert Ray) to answer this query: If this clause were implemented, would it not undermine the whole spirit and intent of our Constitution? After all, can he deny that the Constitution was constructed to provide checks and balances against the unfettered power of the executive government? That was by design. The independence of this House was by design. That is why it was given a different electorate, a different voting system and different terms-fixed terms. The other House has non-fixed terms. Can he deny that this House is to act as a House of review, as a States House and as a House to protect the rights of the people? Senator Robert Ray referred to the Senate as a blocking House as if it was always to be a blocking House. I happen to have been in the Senate when it was a blocking House, and it was very quickly disciplined by the people, who recognised that the Government had been elected to govern on its policies and that the Senate was acting in an obstructive way. The people exercise discipline against the Senate acting in that way. Can he deny that the election of half the Senate at each Senate election was not put there by design? It was to give us a continuing memory in the Senate so that there would be some senators who remembered the actions that took place in the previous parliament. I see all these proposals as an emasculation of the Constitution as we know it. Can the Minister deny that he is not going against the spirit and the intent of the Constitution; that he is not going against the checks and the balances that were put there by design, and that he is not acting against the independence of the Senate? Senator TATE(Tasmania-Minister for Justice)(12.10) —The constitutional proposal that is to be put to this chamber and then to the people, I believe, retains the sort of balancing factor important in a federation, to which Senator Sheil points. It will still be the fact, after this proposal is carried by the people, should they so desire to support it in the required majorities, that 12 senators will come from Queensland, as from every other State of the Commonwealth, including my own, Tasmania. In other words, there is no proposal to change that special federal character or the way in which this chamber is composed. It is also a fact that the deliberative and legislative powers of this chamber will remain precisely the same. Should the Senate wish to reject any Bill whatsoever, it will still be entitled to do so. As to the question of the continuing memory of the Senate, the people can decide whether they wish Senator Sheil, Senator Lewis or Senator Tate to continue for another four-year maximum term. That is up to the people to decide. If the people in their wisdom decide to have a completely fresh set of senators, I suppose they can vote that way. As honourable senators know, it is entirely improbable that there would be such a wholesale clearing out of senators. I believe that the memory of the Senate, in that sense, will continue but with the freshness of a reconfirmation by the people every four years as the Senate is elected at the same time as the House of Representatives. As to the other matters that have been raised, I do not think I need to traverse the ground that already has been put by Senator Robert Ray in his extended response to Senator Boswell, except to affirm absolutely that there is no issue more dead in Australian politics than the question of the abolition of the Senate. It is certainly dead in the Australian Labor Party; I think it is dead in the electorate. I use the Queensland situation only to say that, for my own part, that has been a strong motivating factor in maintaining the position I do about the Senate. I believe one of the factors which have led to the sort of government which has become arrogant in Queensland is the fact that an executive government has been able to move straight into the single chamber there without an upper House even to consider and pass its legislation in a matter of hours should it so desire. I do not believe that is healthy in a democracy. Senator SHEIL(Queensland)(12.13) —I do not think the Minister for Justice (Senator Tate) has answered the question at all. To say that the Senate will be completely unaffected by this measure is completely wrong because it puts the Senate at the mercy of the House of Representatives and the Prime Minister. That was specifically precluded by the Constitution. The Government is taking this measure to put this chamber at the mercy of the Prime Minister. Under the Constitution the Senate was given an independence of action so that the Prime Minister could not take it to the people unless he decided to go on an issue and call a double dissolution. So the Minister has not answered the question of whether the powers of the Senate will be completely unaffected. They will be affected by this measure. I see the independence of the Senate as one of the major triumphs of the Constitution as it exists today. Clause agreed to. Clause 3 (Times and places). Senator CHANEY(Western Australia-Leader of the Opposition)(12.14) —In respect of clause 3, which omits the second paragraph of clause 9 of the Constitution, I ask the Minister for Justice (Senator Tate) for a brief explanation as to what this is doing. The second paragraph of clause 9 of the Constitution states: The Parliament of a State may make laws for determining the times and places of elections of senators for the State. The reason for the omission of this paragraph, according to the explanatory note, is that, where all Senate elections are to be held at the same time as elections for the House of Representatives, the provision is not appropriate. I ask the Minister: Is this not another example of the quite fundamental change which is being made in terms of the structure of the Senate and its relationship to other institutions? We were talking in the rather long debate on clause 2 about the relationship between the Senate and the House of Representatives. In this case we are talking about the remaining influence that the States have upon what is meant to be the States House. This fixed term proposal would mean that the States no longer have any influence at all in terms of elections for the Senate. Is that correct? Senator TATE(Tasmania-Minister for Justice)(12.15) —It is true that clause 3 repeals the second paragraph of section 9 of the Constitution, as Senator Chaney pointed out. That section empowers State parliaments to make laws for the times and places of Senate elections. As the Bill unfolds it is quite clear that the Senate elections are to be held at the same time as elections for the House of Representatives. So the proposal simply is that the times and places for Senate elections are to be set by the Constitution itself and by laws of the Commonwealth Parliament. I think most people in the Australian community would see it as fair that the Constitution and the Commonwealth Parliament set the times and places for elections for this chamber. Clause agreed to. Clause 4 agreed to. Clauses 5 and 6-by leave-taken together. Senator CHANEY(Western Australia-Leader of the Opposition)(12.16) —Although I originally asked that we go through the Constitution Alteration (Parliamentary Terms) Amendment Bill clause by clause, clauses 5 and 6 seem to me to be totally complementary. I want to make some remarks about clauses 5 and 6. Clause 5 provides in part for the insertion in the Constitution of the statement that `the terms of service of senators expire upon the expiry or dissolution of the House of Representatives'. Clause 6 extends the House of Representatives term from three years to four years. The fundamental point I wish to raise with the Minister for Justice (Senator Tate) on these two clauses is that in fact these provisions give the Prime Minister of the day unlimited capacity to call elections for both the Senate and the House of Representatives at any time. As to what the Prime Minister will or will not do, I remind the Minister that Senator Durack in the committee stage last Thursday asked Senator Tate to give a guarantee about the number of elections that would be held. Senator Durack said: Will the Minister give a guarantee-yes or no-on behalf of the Prime Minister, of the Government of which he is a member, that if this Bill is passed fewer elections will be called by his present leader, having regard to his past record? I can only say that Senator Tate responded by saying that he was not in the Perth magistrates court and did not have to answer yes or no. The reality is that the passage of this referendum and the insertion of these clauses into the Constitution would mean that the Prime Minister could, for example, call an election this year for both the House of Representatives and the Senate. At the moment that is not open to the Prime Minister. He has a very distinct fetter on his capacity to call an unnecessary early election by the fact that under the present constitutional arrangements there cannot be a Senate election before 1 July next year. That is why the political commentators are tipping that if things stay as they are the earliest likely election is at the end of next year. If this constitutional amendment is passed the position will be that instead of the Prime Minister having to wait until next year to call an election for the Senate and the House of Representatives he could at any time after the passage of this Bill call an election for the Senate and the House of Representatives. It may well be said that that is not the intended consequence of this Bill, but it is a possible consequence and I think the people of Australia have learnt from the Ministers of this Government the meaning of the words `unintended consequences'. The history of government is littered with things flowing from legislation which are not what the legislators, the politicians, said would flow. I ask the Minister to confirm to the Committee that these clauses mean that, if the parliamentary terms referendum is passed, the Prime Minister could have an election for both the Senate and the House of Representatives at any time after this referendum is passed. In other words, he would not have to wait until after 1 July next year to call an election for both Houses. Senator TATE(Tasmania-Minister for Justice)(12.20) —The effect of the passage of this referendum proposal will be that the term of senators currently holding office will come to an end at the dissolution or expiry of the House of Representatives. Senator CHANEY(Western Australia-Leader of the Opposition)(12.20) —I ask the Minister to be quite specific in his reply. Does that mean that the Prime Minister would have the capacity to call an election for both Houses in October, November or December this year? Senator TATE(Tasmania-Minister for Justice)(12.21) —The constitutional capacity will be there. Senator SHORT(Victoria)(12.21) —I would like to take up that point that Senator Chaney has made and to which Senator Tate has responded, although I will not take up the time of the Committee too much. But it is a fundamentally important point because until the fine print of the explanatory memorandum to the Bill is read, it is not apparent-I am sure it is not apparent to the electors who are going to have to vote on this proposal in the next few months-that the consequence of the Bill will be that the terms of all senators who were elected at the last election in July 1987 will be terminated at the next election, despite the fact that the voters who voted at the general election in July 1987 thought they were electing, because this was the proposition on which the Parliament went to the people, half the senators for a six-year term. The effect of this Bill, as I understand it, is that the basis on which the last election was held for senators in July 1987 will be changed as from the date of passage of this Bill. It is worth noting in passing that this proposal in the Bill is contrary to the recommendation of the Government's Constitutional Commission which said that senators should serve the equivalent of two terms of the House of Representatives. It has not been explained to date to my satisfaction by the Government why it chose to go contrary to and reject the recommendation of its own commission. But as has been said in debate on earlier clauses, and as Senator Chaney has said, a fundamental consequence of this proposal is that the Prime Minister of the day, whoever he or she may be, would no longer have any Senate restraint imposed in the calling of an early election. Senator Lewis, in his contribution on clause 2, made the point very well that under the present system, if the government and Prime Minister of the day go to an early election for the House of Representatives, sooner or later the electoral cycle will catch up and there will have to be a half Senate election. That has been a major constraint on successive Prime Ministers over the years seeking to rush to early elections just for short term opportunistic political gain. It has been a major constraint on Prime Ministers playing fast and loose with the electoral process, even though to some extent the restraint has not been total. But it has been very significant compared with what might otherwise have been the case. So the consequence of the clause we are now debating is to change all that and remove all the constraints imposed by the Senate on the timing of elections. Another consequence is that the Bill virtually ensures the continued existence in the Senate of splinter groups, with the destabilising effects we have seen on effective government over past years. With the whole of the Senate going to election each time the House of Representatives goes to election, a candidate has to poll only approximately 7 1/2 per cent of the vote, rather than closer to 15 per cent under the present system, to be elected. Senator Walters —Just a little over one per cent of the primary vote. Senator SHORT —As Senator Walters says, that 7 1/2 per cent is not 7 1/2 per cent of the primary vote; it is 7 1/2 per cent after all the preference votes have been distributed. Senator Walters —They could hold control of the Senate. Senator SHORT —That is right. We have seen a situation with Senator Robert Wood-nearly Senator Robert Wood-at the last election polling less than 1 1/2 per cent of the primary vote and being elected to the Senate. Most thinking people would regard such a result as quite crazy and certainly as undemocratic. But the effect of this clause will be to entrench that system. Let me return very briefly to the main point; the consequence of clause 5 is that all senators will face election at the next election immediately after the passage of this Bill, if the referendum is passed. In one fell stroke the Senate restraint on the government and Prime Minister of the day calling an election at the political whim of the Prime Minister, and for short term opportunistic political gains which would not necessarily bear any resemblance to the interests of this nation, would be removed. That would fulfil the Labor Party's long-held objective, which despite the protestations that have been made during this debate certainly still exists, to weaken the position of the Senate and its ability to act as a balance to the possible excesses of executive government. That is the most significant implication and effect of all the referendum proposals before us. The consequences have not been spelt out to the public and there is no indication to date that the Government proposes to do so. I am pleased to hear Senator Tate, in response to Senator Chaney's question, confirm that the consequences are just what we have alleged. I expect and hope that between now and the referendum, whenever it is held, that point will be brought home very clearly to the public, because what we are talking about here is the emasculation of the Senate and the ability of the elected Parliament of the people to fulfil its necessary constitutional role which is to provide checks and balances to the possible excesses and activities of executive government. What we are doing in one fell swoop is handing over our political system to the Executive at great cost and loss to the parliamentary system. That is the very antithesis of a democratic system. Senator WALTERS(Tasmania)(12.29) —I just elaborate a little further on what Senator Short was saying regarding the ability of senators to be elected to this place with just a little under 1 1/2 per cent of the primary vote. It would be very nice to have minority groups represented in this Senate. If we could do that as such so that minority groups could be represented and have a voice it would be very good. But the situation arises that they are not just represented in the Senate. They are able, and have in the past been able, to take full control of the Senate. If the numbers on both sides-the Labor Party side and the Liberal-National Party side-are virtually equal just one or two from a minority group who, as I say, have gained representation on just over one per cent of the primary vote have full control over every Bill, because the passage of legislation depends on whether they vote with the Government or with the Opposition. They cannot-I am quite sure the Australian people understand this-possibly deal in detail with all the legislation that comes through the Senate. It is not possible for two, three or even five people to deal with every piece of legislation that comes through the Senate. It is for that reason that sending the whole Senate to the people every time, and allowing through that mechanism the very small minorities to be represented in the Senate, is a great danger. I give the Minister just a couple of examples of why it is very necessary for only half the Senate to go to the people on each occasion. Suppose that in a very large swing there is elected a government that, prior to the election, did not tell the people all its intentions. It gets in on promises which it put to the people but which it does not intend to carry out. It brings forward very radical legislation that the people of Australia had not thought that it would bring forward. If the whole Senate had gone to the election the Senate would reflect that very big swing towards that rogue government. The numbers in the Senate would mirror those of the lower House without any shadow of a doubt. They would reflect the electoral support for that rogue government. In that case there would be no stabilising influence on the actions of the government of the day. That is the system that would apply if this proposal were passed, but under the present system, if such a government had a large swing, its numbers in the Senate would increase, but the swing would not be reflected in the total Senate because only half the Senate would have gone to the election; the other half would be the stabilising influence. The founding fathers, recognising the very great dangers of these massive swings, said that only half the Senate should go to the people at any one time. That is the basis of the great stability that we have in this country as opposed to other countries. It is imperative that that stability remain secure and that our Constitution still create the stability that was thought of so long ago. Senator LEWIS(Victoria)(12.34) —I rise to make two points arising from the response which Senator Tate made to Senator Chaney. I believe that it was a very honest response from Senator Tate and I congratulate him on being an honest senator who is prepared to acknowledge-these are the words I noted-that there would be a constitutional entitlement to have an election in October or November of this year. In other words, once this measure was passed, the Prime Minister (Mr Hawke) would be able to call an election this year-1988. The person who was the Prime Minister after that election-the present Prime Minister or another one- could have another election in 1989. Admittedly he would have to face the people and explain why he was having an election in 1989 but, given some trumped up difficulty, say, the introduction of the Australia Card or some other measure which the Prime Minister of the day could introduce he could do that. An election having been held in 1989, there would be no constitutional limitation on the Prime Minister of the day having an election in 1990 if some other difficulty arose. This could go on for as long as Prime Ministers and governments were able to get away with it. We know that politically there would be great difficulties and it may very well be that the government of the day would get rolled, but the point I make is that once this proposal was passed there would be an entitlement for the Executive Government and the Prime Minister of the day to have an election whenever they wanted. That is why we say that this proposal is dishonest. On this proposal the people think that they are voting to extend the life of the Parliament from three years to four years. The truth of the matter is that under this proposal, although it appears on the surface that there may be an extension of the life of the Parliament from three years to four years, there could be very brief parliaments. In fact, I honestly and firmly believe that there will be many more elections, not fewer elections, once this measure is carried by the people of Australia. That is why we so strongly oppose this measure being approved by the people of Australia. Senator COONEY(Victoria)(12.38) —Mr Chairman- Senator Boswell —I hope it will be a better contribution than the last. Senator COONEY —It will be, Senator Boswell. The last one was brilliant; this one will be ultrabrilliant. Much has been made of two issues: firstly, that it is bad to have the Senate and the House of Representatives elected at the same time; and, secondly, that the Prime Minister has the right to advise on an election at any time. The Constitution of Australia certainly has to be seen in the light of the Constitution of America, but also in the light of the unwritten constitution of the British Parliament. There is no doubt that the British Prime Minister has the constitutional right to advise the Queen as to when an election should be held, and that has been the position since the early twentieth century. Prior to that it was thought that the advice should be given on the basis of what the Cabinet decided, that the Prime Minister should take that advice to the Queen and that she should give an election on that basis. I think it was between 1913 and 1919 that an opinion was obtained that said that the Prime Minister should advise the Queen. It may well have been that that meant that he should advise the Queen in the light of what the Cabinet decided, but it has been acted upon as simply meaning that the Prime Minister himself or herself could make the decision and advise on an election. When people in this chamber talk about the Prime Minister having the ability to call an election, they are simply stating the obvious; that is, that a Prime Minister in the Westminster system has that right and ability. It is not unusual; indeed, it is very much in keeping with the constitutional history to which we are heirs. Therefore, it seems to me to be drawing a red herring across the whole debate to say that it is bad because the Prime Minister can call an election. All that that says is that the Prime Minister, if he calls an election, is exercising his right to advise the Governor-General in light of constitutional history which we have inherited from England. Senator Puplick —What do you say about upper Houses? It doesn't apply in Britain or Canada, does it? Senator COONEY —That is a good question, because it cannot apply in Canada, where the Senate is not an elected body but an appointed body. The House of Lords in England is made up of the great leading families of England which, of course, have served it so well over many generations. How many of those families are still the same as those which were around in the time of William the Conqueror, I think, is a matter of speculation. For example, Henry VIII of England headed many of the great noble families of England, as Senator Puplick would know. In any event, Canada and England are not comparisons because neither of those upper Houses is an elected body. I will turn to the question of elections. In that great case Reynolds v. Sims-it was a slightly different context from the one we are talking about here, but it is quite pertinent to what we say-Earl Warren said: We do not believe- he is talking on behalf of the Supreme Court judges of the United States of America- that the concept of bicameralism is rendered anachronistic and meaningless when the predominant basis of representation of the two state legislative bodies is required to be the same-population. A prime reason for bicameralism, modernly considered, is to ensure mature and deliberate consideration of, and to prevent precipitate action on, proposed legislative measures. Simply because the controlling criterion for apportioning representation is required to be the same in both houses does not mean that there will be no differences in the composition and complexion of the two bodies. That is so. Even if these two Houses are elected at the same time, they will reflect a different constituency. That is made quite clear by the presence here of the renowned leader of the Democratic Labor Party sitting in this chamber. Senator Haines —Where? Senator COONEY —I am sorry; the Australian Democrats. I withdraw very rapidly `Democratic Labor Party'. Senator Short —If only you had been correct. Senator COONEY —That is right, from the honourable senator's point of view. Clearly, the different constituencies and the different methods of electing people throw up different kinds of representatives. The great illustration of that is that the present chamber was elected at the same time as the House of Representatives was elected as was the previous one. It was in the circumstance of all members of parliament being elected at the one time that we saw those victories, as honourable senators opposite see them, in regard to the Australia Card and other legislation that has come in here. Simply, evidence indicates that the election of the two Houses at the same time does not make the Senate a rubber stamp. In fact, the evidence proves quite the contrary. Both the Bill of Rights and the Australia Card are evidence that two Houses elected at the same time can produce a difference in what they do. Clauses agreed to. Title. Senator CHANEY(Western Australia-Leader of the Opposition)(12.44) —I move the amendment circulated in my name: Page 1, Title, leave out all words after ``Constitution'', insert ``to increase the terms of members of the House of Representatives from a maximum of 3 years to a maximum of 4 years, to reduce the terms of Senators from a fixed 6 years to a maximum of 4 years, to require simultaneous elections for both Houses of the Commonwealth Parliament, and to abolish the system whereby half the Senators retire every three years''. I have only a brief chance to introduce this but it is a very critical amendment as far as the Opposition is concerned. It proposes to substitute for the present long title of the Bill the long title which I have just read out. The significance of that is that it is the long title of the Act passed through this Parliament which is put before the people of Australia in the referendum proposal. Therefore, this proposed amendment goes to precisely what question would be put to the people of Australia in that referendum. I will address the Committee at length later on that. The CHAIRMAN —Order! It being 12.45 p.m., under sessional order I put the question: That the Chairman do now leave the Chair and report to the Senate. Question resolved in the affirmative. The Chairman having reported accordingly- Sitting suspended from 12.45 to 2 p.m. Senator CHANEY —I address my question to the Leader of the Government in the Senate. Can the Minister confirm to the Senate that he thinks the Government's present three-mine uranium policy, to quote from yesterday's Melbourne Age newspaper, `is probably a silly policy'? Can he explain to the Senate why it is a silly policy? Senator BUTTON —I think what I said is that it is probably silly, but a lot of things we do here are probably silly. The Senate does some probably silly things; everybody does. No policies are perfect. I do not have to explain that view at any great length, and I do not propose to. It is not a matter which relates to my ministerial responsibility. Senator CHANEY —Mr President, I ask a supplementary question. The Minister has been making public comments on uranium policy and I thought he might have been able to explain them. I ask the Minister whether he would agree that the policy is rather silly when a study released by one of his colleagues in the House of Representatives estimates that an expanded uranium mining and export policy would generate an extra $5 billion by 1992. Does he agree that it is silly to deny a country with a foreign debt the size of Australia's access to the earnings that we are already making in the uranium trade? Senator BUTTON —I do not wish to comment about that. There are all sorts of studies floating about and they will all represent particular vested interests. The study which my colleague released-I presume Senator Chaney is referring to the study released by Mr Bilney-was based on the viewpoint of a particular company. Other studies undertaken or views held by those who are already in the uranium business are directly in conflict with that. They will provide Senator Chaney with alternative points of view. I have sorted out which of those alternative points of view is correct in respect of all these matters. Senator Chaney —Are you supporting an amendment to the policy? Senator BUTTON —What I do at the National Conference of the Australian Labor Party is essentially my business and not the business of the Senate. Senator MAGUIRE —I direct my question to the Minister for Transport and Communications. I refer to corporate plan No. 10 of the Australian National Railways Commission. Has the Minister noted Australian National's strategy to upgrade and standardise the Adelaide to Melbourne rail corridor and its tactics to justify special funding for that rail corridor? What barriers currently exist to the standardisation of the Adelaide to Melbourne railway and what is the apparent position of the Victorian railways on this important national question? Senator GARETH EVANS —I am not sure whether I have a brief on this particular question. I will check it out and give Senator Maguire an answer before the end of Question Time. Senator PARER —I direct my question to the Leader of the Government in the Senate and Minister for Industry, Technology and Commerce. Further to Senator Chaney's question, I ask: Is it a fact that the uranium paper prepared at the Minister's direction recommends Australia should allow additional exports to meet growing market demand and that preference should be given to new operators who are prepared to work towards adding maximum value to the ore? Does it further recommend that research into uranium enrichment should be allowed to proceed and, if successful, the Government should allow the export of enriched uranium and fabricated fuel rods? Does the Minister agree with those recommendations? Senator BUTTON —The paper to which Senator Parer refers does not recommend any of those things. Senator PARER —Mr President, I ask a supplementary question. I ask whether the Minister is correctly quoted in yesterday's Age when in the context of the uranium debate he is reported as saying: If we are going to send any mineral out of Australia we might as well add as much value as possible. If so, what action will the Minister take either within Cabinet and Caucus or within the wider forums of the Australian Labor Party, such as next week's National Conference, to apply that criterion to the uranium industry? Does the Minister agree that the longer Australia delays uranium enrichment the harder it will be to get into markets as overseas plants will become even more entrenched? Senator BUTTON —Certainly I agree with the first part of Senator Parer's supplementary question; that is to say, I share the view that as far as possible value should be added to Australia's minerals by further processing in order that this country might obtain the considerable benefit of that. Whether it is appropriate in respect of any particular industry depends on what technology is available in terms of that process. For example, while the Northern Territory Government has suggested some figures on uranium enrichment involving enormous investment I think those figures must be predicated on the assumption of conventional enrichment technology. Senator Parer —Laser technology? Senator BUTTON —No, conventional enrichment technology. If there is available technology at the right price and so on, I certainly would favour that development. Senator GILES —I direct my question to the Minister representing the Minister for Foreign Affairs and Trade. Has the Minister noted advice of the Soviet Union's unqualified ratification of protocols 2 and 3 to the Treaty of Rarotonga? What are the implications of this ratification and what indications are there of other nuclear weapons states following the example set by the People's Republic of China and the Union of Soviet Socialist Republics? Senator GARETH EVANS —The Australian Government has welcomed the advice received on 20 May of the Soviet Union's unqualified ratification of protocols 2 and 3 to the Treaty of Rarotonga. That ratification took effect on 21 April 1988 when the Soviet Union's instrument of ratification was lodged with the treaty's depository, the Director of the South Pacific Bureau for Economic Cooperation. The Soviet Union declared on ratification its intention of fully complying with its obligations under protocols 2 and 3 and did not condition its ratification by the statement it made at the time of signature. This takes account of views expressed by Australia and other South Pacific Forum countries. By ratifying the protocols without qualification the Soviet Union has accepted binding undertakings not to use or threaten to use any nuclear explosive device against parties to the treaty and not to test any nuclear explosive device anywhere within the South Pacific nuclear free zone. Senator COULTER —I direct my question to the Minister for the Arts, Sport, the Environment, Tourism and Territories. Is the Minister aware of the growing evidence of harm to the aquatic environment from anti-fouling paints containing organic tin compounds, particularly tributyl tin or TBT? Is the Minister aware of the restrictions which many countries have placed on the use of TBT? What steps is the Minister taking to ensure that TBT use is controlled in Australia before significant and long-term damage is done to aquatic life forms? Senator RICHARDSON —I am aware of evidence of harm to the aquatic environment from TBT, contained in anti-fouling paints. These paints are widely used on ships, pleasure craft and the like-- Senator Puplick —Things that float in the water. Senator RICHARDSON —That is correct; that sort of thing. They are used to prevent aquatic organisms encrusting them and causing damage. We can have no barnacles. It is reportedly more effective than other anti-fouling agents so it is considered to be important. However the amount of TBT in some new paints and the use of these paints have grown considerably in recent times. I have been informed that restrictions have been placed on the use of TBT in paints in France and the United Kingdom. I have also been informed that Federal controls are proposed in the United States and that some of the American States have themselves instituted controls. There has been some scientific work on the question in Australia already. There was, I think, a workshop in Lismore in February and a substantial study has just been completed by the New South Wales State Pollution Control Commission. My Department has now taken an active interest in the question. I am pleased that the recent agreement on the use of these paints is shortly to restrict their use, through State pesticide regulations, to formulations providing for the slow release of TBT into the water. Whether or not this is the complete answer will be determined by the monitoring of the problem areas where there are obviously, as Senator Puplick would say, large numbers of things that float in the water. That will be undertaken. So it is not simply a matter of banning TBT paints; there is evidence that the available alternatives can also present some environmental problems. This is a problem that we will have to monitor carefully over the next 12 months. I am not sure that the cure will be better than the disease, but we will monitor the situation to see what effects the cure has. If Senator Coulter were to ask the question again early in the new year, we might have a better and more complete answer for him. Senator COULTER —I ask a supplementary question, Mr President. I am a little surprised at the Minister's reply in relation to slow release paints. The Minister should know that the function of anti-fouling paints is precisely to release toxic substances slowly into water. If they released those substances quickly, they would not be very effective as anti-fouling paints. I ask again whether the Minister will move further to restrict the use of TBT, which has been shown to be a lot more toxic than the conventional paints. Senator RICHARDSON —I am not sure whether I made myself clear in what I said the first time, but I said that I was pleased that by State regulation we would be looking at those formulations with the slow release formulas of which Senator Coulter has spoken. I agree with him. That is obviously the area of concern and that is what we are getting agreement on for State regulations. So we are on the same tack. I hope the honourable senator is not surprised by the answer to his supplementary question. It must be that my original answer was inadequate. If that is the case, I apologise. Senator FOREMAN —My question is directed to the Minister for Consumer Affairs. I draw his attention to reports in the media about the failure of three prominent builders in New South Wales. These bankruptcies have led to 275 families having unbuilt or partly built homes. Will the Commonwealth encourage State governments, and legislate itself in areas of its jurisdiction, first to limit the deposit required by a builder to a maximum figure as suggested by the Master Builders Association of New South Wales, and, secondly, to look more closely at the equity of builders at the time of licence application or renewals to prevent such occurrences? Senator BOLKUS —At the outset, I make the point that traditionally the regulation of the building-- Senator Chaney —Mr President, I raise a point of order. I ask whether this matter is not one which lies within the State jurisdiction, outside the jurisdiction of the Minister. Therefore, I query whether the question is in order. Senator Bolkus —On the point of order, Mr President: if Senator Chaney were somewhat patient, I could link the State response to a Federal response and we would all be satisfied. Senator Chaney —Mr President, I do not wish to obstruct a proper question. I simply raise the point that there appears to be no Commonwealth involvement in this matter. If the Minister can tell us where his portfolio impinges on this matter, the question may well be in order; but I raise the point of order. I do not think the Minister has given us any information which would entitle the question to be ruled in order. The PRESIDENT —I will allow Senator Bolkus to answer the question. Senator BOLKUS —Thank you, Mr President. The first point I was going to make before Senator Chaney rose was that traditionally this sort of problem relating to the building industry, particularly the whole question of licensing, comes within the responsibility of State and Territory governments. To take that one step further, for some time all members of the Standing Committee of Consumer Affairs Ministers, or SCOCAM, have had this item on their agenda. Ministers have been concerned to ensure that there is adequate protection for consumers in an area such as this, where there are many pitfalls in domestic home building. SCOCAM has supported the establishment and development of a standard form contract for domestic home building and extensions. The Ministers have had it under consideration for some time. One of the aspects of SCOCAM's considerations in this area has been the whole question of deposits. SCOCAM Ministers have recognised that deposits are a very important element of any standardised approach in this area by State and Federal Ministers. The next meeting of SCOCAM will be held in mid-July in Melbourne. I will be approaching my State colleagues with a view to seeing whether we can develop, one step further, a system of a uniform response to problems caused by building bankruptcies but noting at the same time that while the Federal Government will be involved to the extent of trying to obtain uniformity and protection, we do not anticipate that we will be taking any further action. Senator TAMBLING —Will the Minister for Resources confirm that the entire production from the Koongarra uranium deposit in the Northern Territory, the development of which has been stopped by Labor's silly three-mine uranium policy, has been sold to Japan and Canada and that the 32 million pounds of uranium oxide contracted for sale will produce about $2 billion over the next 10 years? Is it further a fact that these sales have been negotiated at levels above the current floor price and that the former Minister for Aboriginal Affairs, Mr Clyde Holding, was very high in praise of the agreement between Denison Australia and the traditional Aboriginal owners? What will be the cost to Australia in terms of lost jobs and lost investment if this project remains stalled by Labor policy? What will be the direct loss to Commonwealth and Northern Territory Government revenues? Finally, what will Aboriginal communities in the Northern Territory lose if the Labor conference next week refuses to change the existing policy? Senator COOK —There were several parts to that question, the first asking me to confirm the existence of contracts between Koongarra and other overseas purchasing agencies, the names of which I think the honourable senator gave. I cannot confirm that. I have not seen a contract, but since this matter falls within the responsibility of the portfolio Minister, Mr John Kerin, and is not my direct portfolio responsibility, I will put that question on notice and get back to Senator Tambling. Senator TAMBLING —I ask a supplementary question, Mr President. I am somewhat surprised that a Minister for Resources in this place would seek to sidetrack an issue of this nature to another Minister. It seems that Ministers at the table today are very reluctant to enter into any discussion with regard to uranium. My supplementary question is as follows: Has the Minister had discussions with the executives of Denison and Koongarra? Have they made him aware of the issues raised in my initial question, and is it a fact that some $250m will not flow to Aboriginal people if the Koongarra project does not proceed? Senator COOK —It is interesting that when the supplementary question is asked we find out the answers that the honourable senator wanted to elicit to the primary question. I wonder whether that is regarded as an abuse of Question Time. The arguments that the honourable senator has put seem to be the answers that he is asking me to give him. It begs this question from me: If he knew the answer in the first place, why did he ask the question? In terms of what was, frankly, his gratuitous observation, he may well be wishing to pursue a political point, but he may well also be ignorant. On the assumption that the latter and not the former is the case, he is not aware of the division of responsibilities between me and the portfolio Minister, Mr Kerin. If the honourable senator was aware of the division of responsibilities between us both he would know, as he is actually obliged to find out I would suggest, that Mr Kerin has the responsibility for coal and nuclear matters in the Department of Primary Industries and Energy. The honourable senator asked whether I had met with executives from Denison. Over the last few weeks, in fact ever since I took over this portfolio, I have met representatives of a number of companies, some of whom were uranium miners, some of whom aspired to be uranium miners, and some of whom wanted to open new mines. I do not actually recall meeting with people from Denison. It might be that I did. Opposition senators interjecting- Senator COOK —If honourable senators opposite will allow me to finish the answer, I do not actually recall meeting with them. I do know that they were seeking to meet me and I do know that I have no objection to meeting them and in fact would like to meet them. On that basis, I cannot confirm any information that the honourable senator wishes to confirm with me. If he really wants an answer to the question, perhaps he should wait another week. Senator CHILDS —My question is directed to the Minister for Industry, Technology and Commerce. Senator Archer —He is finding the answer. Senator CHILDS —Is the Minister aware of an article in last week's Australian Financial Review which claims that the Government's new anti-dumping legislation could contain a loophole that would allow importers to avoid anti-dumping rulings simply by changing source countries? Could the Minister comment on that? Senator BUTTON —Senator Archer has already pointed out that I had the answer out before the question was finished. That is a stunningly acute observation for Senator Archer and I congratulate him. That is perfectly true; that is called expedition. That is what we call it in this Government. I am well aware of the article in question. It was drawn to my attention on several occasions. The Customs Tariff (Anti-Dumping) Act already provides facility for the retroactive application of dumping duties consistent with our treaty obligations under the General Agreement on Tariffs and Trade anti-dumping code in circumstances where it can be shown that the importer knew or should have known that the imports, including resources imports, were at dumped prices and that material injury to an Australian industry would result. Secondly, where a dumping notice exists in relation to imports from one country, the resourcing of those imports does not really provide an opportunity to circumvent the effectiveness of the anti-dumping code. As dumping duties would already apply to these goods exported from one or more sources, the authorities would be in possession of current and detailed information on the industry, the injury caused to it by those imports and the price level at which the injury was caused. In those circumstances it would be relatively easy for the authorities to establish whether a new source of imports at a particular price level could contribute to that injury. This would leave to be established only the matter as to whether the goods were at dumped prices and the Australian industry would have to provide sufficient evidence of this to enable the Australian Customs Service to require the exporter to provide information on domestic prices and costs. The provisions of the anti-dumping code could be imposed on imports to Australia in the period prior to the date of a finding of dumping. In summary, this has always been an endemic problem in dumping complaints, but I think the arrangements in the proposed legislation are sufficiently flexible to cope with the situation which the honourable senator described in his question. Senator STONE —My question is addressed to the Minister representing the Minister for Aboriginal Affairs. Has the Minister noted the attack on the traditional Aboriginal owners of the Koongarra uranium deposit by the National Secretary of the Australian Labor Party, Mr Hogg, who suggested that, in campaigning for the Government to change its policy and allow development of the Koongarra uranium mine, these people are being manipulated? Will the Minister agree that such a slur is appropriately described as `undiluted racism of the worst kind'? Senator TATE —I would not adopt that sort of description of statements that may have been made. I have heard some reports along those lines, but I certainly would not wish to attach that particular description to second-hand reports that I may have come across quite accidentally. I do believe it is important that Aboriginal people in their communities be given the dignity which is their due, and indeed the Government's proposals in relation to the self-determination and self-management of Aboriginal communities are designed to foster and recognise that very desirable objective. Senator STONE —Mr President, I have a supplementary question. I regret that the Minister does not have the courage, as his colleague Senator Collins did yesterday, publicly to denounce Mr Hogg and dissociate the Government from his deplorable comments. I ask: Will the Minister at least endorse the right of the Aboriginal people concerned to organise a campaign and to engage professional help in support of a case they believe will benefit their community, which if successful would certainly also benefit the whole Australian community, and that they should be able to do so free of accusations from whatever quarter, including the Secretary of the Australian Labor Party, of manipulation or that they are parties to what Mr Hogg calls a very cynical exercise? Senator TATE —I believe any group of Australians ought to be able to organise themselves in order to lobby, whether it be in the political arena or in relation to something to do with their particular material and financial well-being. In so far as this particular group of Aboriginals wishes to embark on that course, I believe it is entirely proper, but whether I think it is proper or not, it is obviously part of that self-management and self-determination which I believe Aboriginal communities are quite rightly asserting. Senator COLSTON —I direct my question to the Minister for Consumer Affairs. Has the Minister seen a handbill on which Ansett Airlines of Australia advertises a `new direct service from Canberra to the Gold Coast'? Does this so-called direct service in fact call at Williamstown and Brisbane before arriving at Coolangatta Airport on the Gold Coast? Would the Minister remind Ansett that it should not distribute misleading advertising to entice the public to use its services? Senator BOLKUS —I have in fact seen the handbill advertising the direct service from Canberra to the Gold Coast and, like Senator Colston, most senators probably would respond quite warmly to the prospect of direct flights to their home base. There is also one direct service from Canberra to Brisbane mentioned in another part of the Ansett advertisement package. I suppose also like Senator Colston that, despite the early enthusiasm of seeing these sorts of things, when one discovers that it takes four hours to get from Canberra to Coolangatta one wonders about the directness of the flight. Since the matter has been brought to my attention by Senator Colston I have had the opportunity to have a close look at it. I gather that the practice that Ansett follows here, describing this as a direct service, is regarded by Ansett as being in accordance with industry practice. However, I think there may be an aspect of consumers being misled by the approach taken by the advertisement. Of course misleading advertising comes within the ambit of the Trade Practices Act, particularly section 52 thereof. As Senator Colston has asked me to get in touch with Ansett I will do so with a view to seeing whether we can have the advertisement changed. A more beneficial result would be to have a more direct service from Canberra to Brisbane. In the first instance I will be taking up this matter with the Trade Practices Commission to ascertain whether we can have this particular misleading advertisement rectified. Senator PUPLICK —My question is directed to the Minister for the Arts, Sport, the Environment, Tourism and Territories. Can the Minister confirm that all environmental conditions for the development of the Koongarra uranium project have been met? Can the Minister also confirm, as reported in today's Melbourne Age newspaper, that he told Senator Bob Collins last night that he agreed 100 per cent with the senator's speech in reply to the attack by Mr Bob Hogg on the Aboriginal traditional owners of the Koongarra project, that he told Senator Collins it was a great speech, that he agreed with it 100 per cent and that he would be quite happy to go on the public record? If so, will he now formally do what Senator Tate would not do-dissociate himself and the Government from Mr Hogg's derogatory comments about the reasons why the people of that area are pushing for a change to the Government's uranium policy, comments which his colleague Senator Collins rightly described in his speech last night as `undiluted racism of the worst kind'? Senator RICHARDSON —As to whether or not Koongarra has been cleared of all environmental problems in respect of a mining operation, I do not know. I doubt very much whether, as yet, the Department of the Arts, Sport, the Environment, Tourism and Territories has done enough studies to say that conclusively. However-- Senator Chaney —You had better check that. Senator RICHARDSON —Slow down; my general view has been that I believe that uranium mining could be carried out safely at Koongarra, as it has been at Ranger where damage to the environment has been minimal. This is because a very strict regime was set up at Ranger which was monitored by the Office of the Supervising Scientist and, I believe, monitored successfully. However, that is not really the point at issue in Senator Puplick's question, I was asked whether or not I would dissociate myself and the Government from Mr Hogg's comments. I would never presume to dissociate the Government from anything. I do not speak for the Government; I am but a humble Minister. I do not know that my personal view on anything would dissociate the Government from it. However, given that I was prepared to make a doorstop comment this morning I will repeat the comment here: I said this morning that I would have thought that Mr Hogg's comments were more appropriate to Bruce Ruxton than they were to the National Secretary of the Australian Labor Party. I stand by that. Senator SCHACHT —Did the Minister representing the Treasurer see an article on the front page of Sunday's Sun-Herald which claimed that because the fringe benefits tax (FBT) rate has been retained at 49c, when compared with the new corporate tax rate of 39c, employees will lose valuable fringe benefits? Why has the Government not lowered the fringe benefits tax rate to 39c in the dollar? Senator WALSH —I have seen the article and I regret to say that it is completely wrong. The purpose of the fringe benefits tax (FBT) is to ensure that when an employer pays an employee in kind rather than money, the remuneration is subject to an appropriate rate of tax. So FBT is directed at the remuneration of employees. Therefore, it is clearly the personal tax rates scale that is pertinent and not the rate of company tax. For convenience, the rate that has been struck for FBT is the maximum personal rate, less only the Medicare levy, the reason being that almost all those who receive significant fringe benefits associated with employment are in the income tranche that attracts the maximum marginal rate. Leaving it at a single rate helps to keep it administratively simple. It is very complicated to explain why the article is wrong. Fringe benefits, to a quite minor degree, become more attractive at the time that the maximum personal tax rate is higher than the corporate tax rate. That makes fringe benefits marginally more attractive, but not a great deal more attractive, to an employer and, possibly, an employee, if they decide to split the difference between them. Even if the article were true, the option of cashing out fringe benefits is always available, and indeed that is an option which I have always favoured and which the Government has not been opposed to. Senator LEWIS —My question is directed to the Minister for Consumer Affairs. It concerns the Minister's address to the Sturt Australian Labor Party Federal Electorate Council (FEC) in Adelaide on Sunday. In particular I refer to his comments that, as a result of the tariff cuts announced last week, and taking into account the treatment of the textiles, clothing and footwear (TCF) and passenger motor vehicle (PMV) industries, `Shirts and blouses will be reduced in price by 48 per cent', `a car such as a Mazda 323 would be 13 per cent cheaper' and `footwear should be reduced in price by 10 per cent'. How does the Minister account for the saving on a new Mazda of over $3,000, and how does he justify expecting massive falls in prices in the TCF industry, given that no major tariff reductions were announced to the passenger motor vehicle and textiles, clothing and footwear industries last week? Has the Minister been advised by Senator Button of further tariff cuts which are in the pipeline but as yet unannounced? If not, will the Minister withdraw his comments, given the criticism in the last 24 hours from the Australian Retailers Association (ARA), which predicted that, on the contrary, the price of many clothing and footwear items would increase by 12 to 15 per cent by the end of 1989, from the Confederation of Australian Industry and from the Textiles, Clothing and Footwear Industry Council of Australia? Finally, will the Trade Practices Commission be investigating the Minister's own shonky attempts to sell last week's tariff changes to the general public? Senator BOLKUS —The Senate and government in this country would be better served if Senator Lewis were to read the speech and quote from it accurately. In the interests of doing so, I will quote from the speech I made on Sunday to the Sturt FEC: I believe that the Government and the trade union movement can work together to ensure that labour market adjustments flowing from tariff cuts phased in over four years will be manageable. I went on to say: It is also important to note here that the textile, clothing and footwear sector, the steel industry and the motor vehicle manufacturers, all of which operate under existing plans, are not subject to the same kind of rapid change. It is quite clear that what I was referring to was not immediate cuts in these areas, but cuts over the announced period of reductions in tariffs. That point came out of the speech. It is obviously a speech that Opposition senators have not read. Senator Walters —You really are a fraud. Senator Crowley —On a point of order, Mr President, I ask that Senator Walters withdraw that remark. The PRESIDENT —Order! I heard the interjection-- Senator Walters —I withdraw. The PRESIDENT —I ask Senator Walters to withdraw. Senator Walters —I have already done so, Mr President. The PRESIDENT —I call Senator Bolkus. Senator BOLKUS —In the interests of my relationship with Senator Walters, I am glad that I did not hear her interjection. I went on to say-I raise this to inform Senator Lewis even further-that the decreases were based on domestic price increases as well. I said: . . . if domestically produced goods are reduced in price by amounts corresponding to the effect these measures should have on imported goods, the purchasing power of households should increase significantly. Another contingency I mentioned, among others, was: These falls do, of course, depend on the effects of tariff reductions being passed through entirely to retail prices. There is no getting away from the fact that the Government's purpose in making these changes is twofold: obviously the most important aspect of it is to make Australian industry more competitive and, secondly, we want to do so in a planned, comprehensive way. Industry cannot have it both ways. It cannot, on the one hand, have decreased prices and strive for competition and, on the other, claim to keep its prices at the same real value as they were before tariffs were cut. The thrust of my statement on Sunday was that I would instruct the Prices Surveillance Authority (PSA) to monitor prices in the affected areas as a priority project. It is an ongoing project because, as will be clearly understood by those who read the speech, tariff reductions are, in the main, being phased in over a period-some over four years and, for TCF, seven years. Senator Lewis referred to the ARA statement. The ARA talked about one step in the overall change. What industry should be talking about and addressing its mind to is the cumulative effect of the tariff changes, not just what the next step along the track should be. The ARA's allegations were based on the early stages of the plan. If one looks at the plan in its entirety, one sees that the notional figures are subject to the following contingencies which I mentioned accurately in my speech: time lags, the movements in production inputs, inflationary movements, and so on. The basic point that I made in my speech on Sunday is that prices should be reduced by the end of the periods in which the tariffs are reduced. The Government's primary concern is that we are committed to ensuring that the maximum possible benefits flow from tariff reductions to consumers. I said on Sunday, in my capacity as Minister Assisting the Treasurer for Prices, that I am particularly interested in these measures as they should have significant benefits for consumers, especially low income earners. Senator Lewis mentioned the ARA. I do not think that he mentioned the Confederation of Australian Industry. Its Press statement was hardly worth responding to. It shows the Australian community that some sections of Australian industry-and I stress the word `some'-are afraid of the challenges involved in this sort of reassessment. The announcement that I made on Sunday, very specifically, was that the PSA would be charged with the responsibility of monitoring this flow-through to consumers. This is not a new form of government regulation. It is basically a case of the Government once again acting in the interests of consumers. I contend that the Opposition does not spend much time in doing that. Senator LEWIS —Mr President, I ask a supplementary question. Firstly, I ask the Minister to table the papers from which he quoted. I refer, secondly, to reported statements by the Minister-for example, that for low income families, it is calculated that these proposed price cuts and savings would be equal to a pre-tax wage increase of 3 per cent and for high income families the equivalent of a wage rise of 2 per cent. Is that what the Minister says will happen at the end of a period of about five years rather than what will happen in the immediate future? Senator BOLKUS —The answer to the first part of the question is no. The answer to the second part of the question is that the figures contained in my speech-I will gladly give Senator Lewis a copy of the speech-are based on the contingencies mentioned in the speech over the period of introduction of the plans and the reduction in tariffs, as announced by the Government. Senator Puplick —Mr President, I take a point of order. What is the basis upon which the Minister can decline to table a document from which he has quoted? Senator Cook —A point of pomposity, not a point of order. Senator Puplick —I am always prepared to be lectured by the expert on the subject. The Minister can hardly claim that the document is a confidential document, since it is the text of a public address. He has had three pages or so of typed material in front of him from which he has read the answer to the question. He cannot say that it is a confidential document, since the parts that he has quoted in his answer form part of a publicly available document. Under those circumstances I believe that he should be required to table the material from which he has read. The PRESIDENT —Standing order 363 really applies to a motion that documents be tabled. The convention is that the Minister can either table a document from which he has quoted or he can say that they are his own notes or part of his own speech and therefore not table them. Senator Bolkus chose not to table them. Senator BEAHAN —My question is directed to Senator Walsh, in his capacity as both the Minister for Finance and the Minister representing the Treasurer. Has the Minister seen an article in the Sunday Telegraph which referred to calls by business groups for a consumption tax? Is it true that a consumption tax will be necessary to finance a significant round of reductions in personal income tax rates? Senator WALSH —I did see the article in the Sunday Telegraph. The Sydney Sunday papers must have excelled themselves last week. The same assertion was also made, somewhat more surprisingly, by an official or executive from the Arthur Young company, a firm of accountants, in a broadcast by the Australian Broadcasting Corporation (ABC), at least in Brisbane, on Friday morning. The officer from Arthur Young said that a consumption tax was implicit in the May statement because it was not possible to finance income tax cuts without a consumption tax. Of course, this Government will not finance tax cuts by printing money, which the Opposition did when it was in government and which it would do if it ever returned to government. The reason why tax cuts can be afforded is that we have had two years of negative real growth. Senator Stone —You have a lot of bracket creep. Senator WALSH —I am coming to that, Senator. We will have another two years of negative real growth. Even if one abstracts from assets sales, over that four-year period there will be zero real growth in Commonwealth outlays. If, during that same period, gross domestic product (GDP) grows at 3 per cent per year-on present indications that would seem to be, if anything, a conservative assumption-and if there are zero real outlays growth and zero inflation, Commonwealth revenue will increase by between $1.5 billion and $1.8 billion a year. It would do so for this reason: it is possible to quibble about as much as the last $10 billion, but upwards of $60 billion of Commonwealth revenue will grow proportionately to GDP. Personal income taxes, most sales taxes, excises-excluding the crude oil excise-can be expected to yield revenue or increase revenue proportional to the growth in gross domestic product. It follows, if one takes a figure of $50 billion as the lower estimate or $60 billion as the higher estimate, with GDP growth of 3 per cent, that taxation revenue would grow by $1 1/2 billion to $1.8 billion per year. It has nothing to do with fiscal drag. It would accrue entirely because of growth in the economy. When one looks at the other side of the equation, the outlays side of the equation, and sees that outlays are being held at zero real growth over a four-year period, it becomes obvious that $6 billion to $7 billion is available over a four-year period for reductions in taxation, reductions in the Budget deficit in the early stages or additions to the Budget surplus in the later stages of that process. The effect of this is still coming through, to some extent. The base broadening measures which this Government first embarked upon nearly three years ago are increasing the income tax base as well as the increase in revenue attributable to economic growth. So the tax cuts can be afforded for those reasons. I will be as honest as Senator Stone was last Thursday when we appeared on an ABC program together. Over and above that factor, of course, what is commonly known as fiscal drag is increasing revenue further. That will also be available. Senator Stone —So if you cut your own spending you can really cut taxes. Senator WALSH —If Senator Stone's Party was a bit more specific about where spending should be cut, I might have a bit more respect for it. Indeed, if the Opposition was at all specific about where expenditure should be cut, I would have some respect for it which I do not have now. All I am aware of are the various promises that Senator Stone and his colleagues have made, not to reduce expenditure but to increase it. For example, let me refer to a list which is by no means exhaustive. The abolition of the assets test would cost between $300m and $500m, and the figure would grow over time. The construction of the Alice Springs-Darwin railway would cost $700m. Mr White has said that the Opposition, in government, would have an aircraft carrier. That would cost $2 billion to $3 billion. He also said that it would have half a dozen nuclear submarines. That would cost another few billion dollars. Senator Stone's Party colleague the honourable member for Gilmore said that the petroleum product freight subsidy scheme should be resurrected. That would cost another $160m. Senator Chaney —Mr President, I take a point of order. The Minister is clearly debating the question. He has moved beyond his normal, well-modulated and calm presentation to his raving mode, which usually means that he is debating the question. The PRESIDENT —Have you finished, Senator Walsh? Senator WALSH —Not quite, Mr President. Senator Chaney probably had a valid point of order for once. I was provoked by Senator Stone into giving a few details of the humbug and irresponsibility of the Opposition. The plain fact is that the tax cuts that have been forecast by the Treasurer can be delivered without pushing the Budget back into massive deficits-as Mr Howard used to do when he was Treasurer-increasing the intensity of personal taxation or introducing a broad-based consumption tax. Senator CHAPMAN —I ask the Minister representing the Treasurer: Is it a fact that the present tax on superannuation lump sum payments of 15 per cent and 30 per cent applies only to that portion of the lump sum accumulated after 30 June 1983, while that portion accumulated before that date is taxed at only 5 per cent? Is it also a fact that under the new provisions announced in the May economic statement, the proposed income tax on superannuation fund earnings will apply to the earnings of the total fund and not just that portion of the fund accumulated after 30 June 1983? If this is the case, does the Minister agree that this change in taxation is therefore not just a change in timing of tax receipts, as claimed by the Treasurer, but also effectively an increase in tax, thereby reducing the final benefits available to superannuants? To ensure that the final benefits obtained by superannuants will not be less under the new scheme than under the old, will the Government change its announced policy to ensure that only the income of that portion of the fund accumulated from contributions after 30 June 1983 is subject to the new tax? Senator WALSH —Towards the end of that diatribe I was asked whether the changes constitute an increase in taxation on superannuation. The answer is no. I was asked whether the Government would change the policy and the answer to that is also no. I will deal firstly with what Senator Chapman said in the early part of his question, that accumulations post-1983 only are subject to the 15 per cent and 30 per cent lump sum taxation. That is not quite correct. For taxation purposes, the period before and after 1983 over which the contributions are invested is notionally taken as the fraction to which the higher lump sum tax will apply, which is not the same thing as the accumulation of the benefits at any given point of time. In other words, the tax treatment of the lump sum is more concessional than had it been applied to the straight accumulation in a fund from May or June of 1983. Secondly, the changes in the lump sum tax proposed are in fact mildly concessional. The cut-in point-previously $55,000 taxed at 16 1/4 per cent, because the Medicare levy was applied to it as well-has been reduced to $60,000. The rate of tax both before and after the $60,000 threshold has been reduced. The effect of those changes is likewise mildly concessionary. The revenue which would ultimately have been yielded by the tax on lump sums at the end of the investment has been not entirely but almost entirely replaced by the effect of the decision to tax the contributions of employers into funds in the beginning. The major point of Senator Chapman's question was of course the taxation of earnings within the fund. I am surprised that he did not follow the example set by his Liberal Party colleague in the House of Representatives, Mr Chapman, whom I saw on television on Sunday night-- Honourable senators-Connolly. Senator WALSH —Yes, I am sorry about that. They are all so inconsequential it is difficult to remember who is who. I expect that he waved page 45 of the Treasury document around to show that there was a line which said existing superannuation benefit $88,120 and proposed superannuation benefit $86,358-a difference of about $1,800 or 2 per cent-which, according to Mr Connolly, would have made superannuation absolutely unattractive and would have been the end of the superannuation industry. Even if that were true, which it was not-I will come to that in a moment-it was a ridiculous conclusion to reach and the sort of conclusion I would expect Mr Connolly and all the other undistinguished members of the Opposition to reach. Of course it is not true because if the document is read properly it can be seen that that table is based on the assumption that there will be no change in the existing distribution of investments by superannuation funds. In the past a massive distortion through the tax system affected the behaviour of managers of superannuation funds. The massive distortion was that if they received income as interest or rent it was tax free; if they received income as dividends from equity investments tax was paid by the company in which the profits were earned and tax, until quite recently, could have been paid by the recipients of the dividends when there was a distribution. That unequal playing field was a massive distortion which affected the behaviour of rational fund investors. So of course they tended to invest their money so that it would yield income in the form of rent or interest instead of profits from business enterprises, from equity holdings. That massive distortion has now been removed. I suppose it is difficult for Opposition members to understand this, but as a result of the removal of that gross distortion on the behaviour of fund managers, rational fund managers will change their investment policies. I heard Mr Willett, the Chairman of what is said to be-as far as I know it is true-the largest superannuation fund in Australia, the Commonwealth Government's employees fund, the Superannuation Fund Investment Trust (SFIT), on Monday morning saying that previously SFIT did not take into account after tax yields, nor did superannuation fund managers in general. Now they will have to take into account after tax yields. When super funds get a proper mix of equity investments, including investments in companies which pay franked dividends-tax on fund earnings will be exempt from the 15 per cent tax-the funds will come back to the sort of position they are in now as far as their tax liabilities are concerned, but the massive distortion on their investment policies will no longer be there. They will make their decisions about investments and where to put their funds in accordance with normal and rational assessments of what is and what is not a good investment-not something which is a tax haven compared with something which is not. Senator CHAPMAN —Mr President, I ask a supplementary question. From what the Minister has said I take it that unless superannuation funds invest all of their funds in companies that provide dividend imputation, the import of my question is true, that the taxation paid by superannuation funds will be higher under this changed arrangement than it would have been under the old arrangement. Therefore, the benefits to superannuants in the long run will be lower. Senator WALSH —It would appear that Senator Chapman is deaf as well. Senator Messner —You just don't understand it. Senator WALSH —Tell us about the free boozy lunch, Tony-that is your specialty. Tell us about how many tens of thousands of jobs you said would be lost in restaurants if the free boozy lunch was cut out. Senator Chapman asked whether I said that unless they put all their investments into equity investments that yield franked dividends they would have to pay tax. No, I did not say that at all. I said that they could avoid paying the tax by having a proper mix of equity and other investments without having their decision about that mix of investments distorted by the previously unequal taxation system within which those investments were made. Senator POWELL —I address my question to the Leader of the Government in the Senate. In view of the reported call by the Leader of the National Party and the Leader of the Australian Labor Party in Queensland favouring a register of foreign ownership in that State, will the Government set up a national register of foreign ownership so that Australians can know what proportion of the total value of Australian land, social infrastructure, factories and residential developments is owned outright, in part, or through exotic financing mechanisms by foreign residents? Senator BUTTON —I saw the call in the weekend Press by the presidents of the two political parties. I am not sure whether it is necessary to have a so-called register of foreign ownership to establish all the information which Senator Powell referred to in her question. That may be compiled in a variety of other ways. Certainly, the Government has made no decision about this matter and has not addressed the issue. Essentially, the Government has modified foreign investment guidelines to encourage foreign investment in a variety of activities and to encourage Australian investment in overseas countries. As the question is more specifically directed to obtaining an information base rather than a policy issue, I will ask the Treasurer what steps have been or are being taken about that matter. Senator GARETH EVANS —Earlier in Question Time Senator Maguire asked me a question about the Australian National Railways Commission corporate plan and the standardisation of the Adelaide to Melbourne railway. The answer is in the following terms: I have seen Australian National's corporate plan No. 10 and am aware of its permanent way strategy. There has been no change regarding the proposal to standardise the Adelaide-Melbourne corridor since I provided an answer to Senator Maguire's questions without notice on the subject on 20 April last. I cannot, of course, speak for the State Transport Authority of Victoria, but the key issue remains whether the project, which was estimated to cost around $250m in 1983 parameters, is likely to be economically and commercially viable. Senator GARETH EVANS —On 25 May Senator Powell asked me a question relating to the number of women pilots employed by Qantas Airways Ltd, Australian Airlines and Ansett Airlines of Australia. I undertook to provide her with an answer which I now seek leave to incorporate in Hansard. Leave granted. The answer read as follows- Australian Airlines employs one female pilot. It should be noted however, that there has only been one pilot intake program conducted by Australian since 1981. All pilots whether male or female are governed by the same employment conditions, there is no specific policy pertaining to women. Generally women are now much more identifiable in the airline's workforce, particularly in the middle and senior management areas. Australian has also increased the number of women in the trade and technical areas. Qantas Airlines currently employs six women pilots and has one in training. Qantas does not have a specific policy relating to women pilots, but does have an Equal Employment Opportunity policy and will assist women to compete on an equal basis where possible. Qantas is further examining ways of encouraging more applications from women pilots. Ansett Airlines employs four women pilots, one of which has recently become a Captain. Ansett has an Affirmative Action Program and actively encourages applications from women for all positions in the company. However, Ansett has not advertised for pilots for some time due to the large number of direct applications for pilot positions. I am satisfied with the progress to date within the airlines on the employment of women in the whole range of positions available. Senator COOK —Earlier in Question Time today Senator Tambling asked me a question about uranium mining. Specifically, he asked me whether I had met the Denison mining company. At the time that question was asked I could not recall among all of the companies I have met whether one of them was Denison. I checked with my office and I now can inform Senator Tambling that I have not met Denison mining company. Therefore, I am unable to confirm or add to the information I gave in answer to the two questions he asked me in Question Time today. On 19 April, however, Mr Kerin met Denison mining company in the form of its Canadian president, Mr Jake Fowler, and its vice-president, Mr Ken Bates, and Carlos Sorentino. They discussed the Koongarra uranium prospect. I have no further information to add at this point. Senator BOLKUS —Last Thursday in Question Time Senator Walters asked me about the operation of a tax file number in relation to the Department of Social Security. I now have the following information from the Minister for Social Security: TAXATION FILE NUMBER AND SOCIAL SECURITY The Treasurer announced in the recent Economic Statement that the Taxation Office had been given the go ahead to develop a system for making greater use of tax file numbers in its normal administration. He emphasised that at no time will people be required to produce a tax file number as a form of personal identification. There has been an impression created by some media articles that the taxation file number will be a pre-requisite for eligibility for social security assistance. That is not correct. Unemployment, sickness and special benefits and job search allowance payments made by the Department of Social Security are taxable. These payments are regarded as salary or wages for taxation purposes. Consequently, the Department of Social Security is required to deduct tax from these fortnightly payments the same as employers. When clients apply for these payments they are asked to fill in an Income Tax Instalment Declaration Form. In most cases clients indicate that they are entitled to claim the taxation general exemption. Because of the amount of their fortnightly social security payment and their entitlement to tax rebates, no tax is deducted each fortnight. If clients do not fill in an Income Tax Instalment Declaration Form, the Department is required to tax each payment at 29 cents in the dollar. At present there are 548,000 persons receiving payments who have filled in an Income Tax Instalment Declaration Form. Of these, 30,500 are having tax instalments deducted from their fortnightly payments and 517,600 are not because of the general tax exemption which applies. There are also 29,100 persons receiving fortnightly unemployment, sickness and special benefit and job search allowance payments who have not filled in an Income Tax Instalment Declaration Form. Tax is being deducted from those payments at the rate of 29 cents in the dollar. The taxation deductions are forwarded to the Australian Taxation Office on a monthly basis. At the end of each financial year the payments made to each person are shown on a group certificate or statement of earnings which is given to the client for inclusion in their income tax return. The taxation file number proposal, announced by the Treasurer, means that the Department of Social Security will have to include the client's taxation file number on his or her group certificate or statement of earnings. As I have said, this certificate or statement is already provided by the Department to the client. The proposal means one further piece of information will be added. Consequently the Department of Social Security will need to ask clients for their taxation file number when they apply for assistance. If they do not give it the social security payment will be made, provided of course, that the person is eligible. However, the Department will be required to deduct tax from the payment at the highest marginal rate. This is exactly the same administrative arrangement between the Department of Social Security and the Australian Tax Office as currently applies, which I have already detailed. The system begins on 1 November 1988. From that date each new applicant for the social security payments in question will be asked to write his or her taxation file number on the Income Tax Instalment Declaration Form filled out as part of the claim process. I emphasise that the proposed system is for taxation, not social security, purposes. The important point is that unemployment, sickness and special benefits and job search allowance payments are treated as earnings and cannot be dealt with differently from other payments of this nature as far as taxation aspects are concerned. I also repeat for benefit of my colleagues that the proposed system will not be used to assess eligibility for social security payments. At the end of her question last week Senator Walters asked me to table the notes from which I answered a question last week. I have had further requests to do so and I promised that I would do so today. I now table the page from my brief. Senator REYNOLDS —Yesterday Senator Jenkins asked me a question relating to an article from the West Australian of 23 May with the heading `Judge Sets Iranians free'. I responded to part 6 of the honourable senator's question yesterday and undertook to get answers to the other parts. As the response is rather lengthy, I seek leave of the Senate to incorporate the response in Hansard. Leave granted. The response read as follows- 1. Mr Justice Lee directed the Department to answer a court interrogatory as to what information the Minister or the Department has received regarding the whereabouts and safety of an Iranian who was refused entry into Australia on 4 October 1985. No answer to the interrogatory has been furnished as yet pending enquiries of the Department's overseas offices. I am informed that an examination of the Department's files in Australia concluded that no information was received in relation to the whereabouts and safety of that man since November 1985, other than an allegation by a solicitor contained in an affidavit filed in the very matter now before Mr Justice Lee to the effect that unconfirmed information received by Amnesty International and passed on to her that the man was thereafter persecuted and may have been executed in about 1987. The solicitor added that ``Amnesty is still seeking confirmation of that execution''. 2. An Iranian man, aged 27, arrived in Australia on 4 October 1985 on a Cathay Pacific flight without passport or visa from Hong Kong. He sought refuge in Australia. He disclosed that he posted his passport in Hong Kong to an address in Australia. He arranged for a solicitor to meet the airline. The man, a professional person belonging to the ruling ethnic and religious group in Iran, based his claim for refuge on an alleged clandestine religious conversion to christianity two years previously. The man was refused entry into Australia under section 36A of the Migration Act and the airline was required to remove him back to Hong Kong. The view was taken then that the man was the responsibility of the flag of the carrier and hence was under the protection of the United Kingdom, who was and is a signatory of the convention relating to the status of refugees. Moreover, the first port of destination of the carrier was Hong Kong, which was and is a British territory with facilities for the reception of refugees awaiting resettlement, where the man could press his claim for resettlement as a refugee. The then acting Minister (Mr Brown) and later, the then Minister (Mr Hurford) confirmed the action taken. The decisions in that case were the subject of litigation in the federal court, before a single judge and before the full court. In the outcome, under consent orders made by the Federal Court the minister was required to consider, whilst the man was in Hong Kong, the man's claim for resettlement in Australia as a refugee and the man was also required to seek the protection of the United Nations High Commissioner for Refugees (UNHCR) and also to hand over to the Australian authorities his passport. It was established that the man had applied twice in Iran for a visitor's visa to Australia in late 1984 and early 1985. On both occasions, the applications were rejected. The man then departed Iran on 23 August 1985 for India with an Iranian passport and a valid Indian tourist visa. That visa was later extended to allow him to remain in India until 12 November 1985. In Bombay, he again applied unsuccessfully for an Australian visitor's visa. He claimed on that occasion that he wished to visit friends in Australia prior to undertaking studies in the Federal Republic of Germany. His passport disclosed a visa to that country issued in Tehran which expired on 29 June 1985. At no stage, up until so ordered by the court, did the man seek the protection of UNHCR, nor approach an Australian overseas post for resettlement as a refugee, although he had ample opportunity to do either or both before seeking entry into Australia at the airport. By posting his passport to an address in Sydney ahead of his departure from Hong Kong to Sydney, the man denied the Australian authorities at the airport the opportunity to examine his identity and circumstances, and rendered difficult his deportation if his claims were to be dismissed following his expected entry into Australia. It is common knowledge, that it is difficult to effect the deportation of a person with no travel documentation. The man's claim of religious conversion was never satisfactorily established. On 15 October 1985, the then Minister (Mr Hurford) considered the man's application for refugee resettlement in Australia in the light of a detailed submission following interviews with the man in Hong Kong. The then Minister decided to reject the application on credibility and on refugee and immigration policy grounds. The Minister's decision and supporting document were communicated to the man's solicitors on the same day. That decision was not challenged, and indeed the original application for review of the decisions relating to refusal of entry was withdrawn by the man's solicitors a week later. It is understood that the United Nations High Commissioner for Refugees did not extend protection to the man under the mandate of that office. Following that decision it appears that the Hong Kong authorities expelled the man back to India, and India in turn returned the man to Iran in November 1985. 3, 4 and 5 The Department and I have no knowledge as to what treatment the man received upon or since his return to Iran from India in 1985. Senator GARETH EVANS(Victoria-Manager of Government Business in the Senate) —by leave-I give notice that, on the next day of sitting, I shall move: That the following sessional order be adopted: Notwithstanding anything contained in the Standing Orders: (1) When a division is called for or the attention of the Chair is drawn to the lack of a quorum, the bells shall be rung for 4 minutes. (2) This order shall have effect in respect of sittings of the Senate in the new Parliament House. Consideration resumed. Senator CHANEY(Western Australia-Leader of the Opposition)(3.10) —Prior to the debate being adjourned for lunch, I had moved an amendment which seeks to substitute a new long title to the Bill. It is unusual for the Senate to spend much time on the title of a Bill. Usually it does not matter. But the significance of the title of this Bill and of all the Bills which institute constitutional amendments is that what the people of Australia get put before them when they receive a ballot paper is a question which is based upon the long title of the Bill. So people walking into the ballot box, if this Bill remains in its present form and is passed by the Parliament, will be asked whether they approve of: An Act to alter the Constitution to provide for 4-year maximum terms for members of both Houses of the Commonwealth Parliament. It is a very simple proposition which relates to four-year maximum terms and a proposition which may, on the face of it to many Australians, appear attractive. The concern of the Opposition is that that is a thoroughly dishonest question to be posing to the people. Senator Harradine —That concern is not only the Opposition's; it is that of Morgan gallup polls, me-- Senator CHANEY —I was going on to that. I have some support from Senator Harradine, who is not from the Opposition; he is an independent senator from Tasmania. The concern which we have expressed is reflected by many other observers. As Senator Harradine has said, the Director of the Morgan (Roy) Research Centre Pty Ltd, Mr Gary Morgan, who is probably responsible for asking questions of as many Australians as anybody else in our history, and whose whole profession is involved in phrasing questions so that the opinions of people can be determined, has described these questions as biased to try to obtain a yes response from the voter. Mr Morgan said that any public opinion polling company which asked questions as blatantly biased as the Government proposes, would completely lose its credibility. We raised that matter in the second reading debate and it is a very central concern of the Opposition. It will be a very interesting test of the Australian Democrats, because the amendment that we have put forward is not a biased amendment. It picks up some of the elements of substance, all of which have been conceded by the Minister for Justice (Senator Tate) as being part of the constitutional change which is proposed. Our simple proposition is that the Australian people are entitled to a question on which to vote which will be far more explanatory of the constitutional changes that are being sought by this Government. It is not just Mr Gary Morgan; there have been a whole series of people who have talked about this. I will not quote Ralph Hunt, who put out an excellent Press release, because he is a member of the Opposition. But let me refer again to what Paddy McGuinness had to say. I think all people would regard him as a respected observer on the social, political and economic scene. People might not always agree with him but no-one, I think, has ever accused him of being a political partisan and in some way the property-- Senator Zakharov —He is certainly very conservative. Senator CHANEY —That comment could come only from Senator Zakharov's corner-or part of the political spectrum because, in many respects, Mr McGuinness has stood up for all sorts of ideals, including the ideal of racial equality. That is one matter which comes to mind. He really applies his mind to society and rights in a very honest and fair way. What does he say? He said: The Federal Government is being very dishonest in its approach to the proposed referendum on constitutional amendments. This is what Mr McGuinness-not some Liberal, not some person who is committed to the Australian Labor Party, the National Party or the Liberal Party-says the question should be. He says it should be phrased in the following term: Do you agree to weakening the power and status of the Senate? That is Mr McGuinness's view of the true political import of this constitutional amendment. We are not seeking to word this proposal in a way which is politically biased. We are saying that the people of Australia are entitled to be told frankly what is contained in this Bill. We are suggesting that a proper description of the Bill is that it is a Bill: to increase the terms of members of the House of Representatives from a maximum of 3 to a maximum of 4 years- that clearly is the import of the Bill- to reduce the terms of Senators from a fixed 6 years to a maximum of 4 years- the point is specifically drawn to the attention of the electors that we are going from a fixed term for the Senate to a maximum term of four years for the Senate; so the point that is nowhere mentioned in the present question is made explicit- to require simultaneous elections for both Houses of the Commonwealth Parliament, and to abolish the system whereby half the Senators retire every three years. We say that they are the essential, mechanical changes which are being made by this proposal. We have not sought to include in our amendment what we believe to be the political or power impact. We have not included argument or emotive words. We have been coldly descriptive in the amendment we are putting forward. I do not know whether the Australian Democrats intend to participate in this debate; they have not to this stage participated in the committee stage debate, but I note that two of them are now in the chamber. I put the very simple question: Do the Democrats agree that the elements of change which are reflected in our amendment are elements which are in the Bill, changes of substance which are to be effected by this constitutional proposal? If the answer to that question is yes, they must in fairness support this proposal because to do otherwise is to risk a fraud upon the people of Australia. That is really what we are looking at-the possibility that a great number of people will simply misunderstand the question that is being put to them because, as Mr McGuinness has said, the questions have not been put in an honest way. We believe that the Government has set out to mislead in this description and, therefore, that it has set out in a quite fraudulent way to promote this constitutional amendment. I remind the Senate that this has been a quite lengthy committee debate, designed, on the part of the Opposition, simply to draw out the essential and quite major changes which this Bill is making beyond the change of the term, changes which go to the whole structure and framework of the Senate. I draw the attention of honourable senators to that debate and to the fact that Senator Tate, as he had to, conceded the elements of change that we asserted. I will quote a couple of particulars from Senator Tate's speech in the debate last Thursday. In the debate on the early part of the Bill he said: This provision of the referendum Bill would change the current provision in the Constitution and would change the situation whereby senators have a fixed term . . . I interpolate: The question, as it is being posed to the Australian people by the Government, does not make that very central point explicit. It may be that it is a necessary implication from the present title; it simply is not made explicit. Senator Tate goes on to say: . . . a fixed term which they serve unless affected by a double dissolution. In that respect this proposal alters what the framers had envisaged as the way in which the Senate would be composed and would operate as to the terms of the members of the Senate chamber. I simply say to Senator Tate and to the Australian Democrats-of whose support on this matter I am not sure, but which I hope we will get if they have honesty of purpose with respect to these constitutional proposals-that what has been said by Senator Tate in the committee debate about the effect of this Bill is not reflected in the question which currently is to be posed to the people. Senator Tate said a little later in that debate: The proposition that fixed terms are a distinguishing characteristic of this chamber as provided for at the moment under the constitutional provisions, particularly obviously, under section 7 of the Constitution, is absolutely correct. So Senator Tate, in the debate, conceded that fixed terms are a distinguishing characteristic of this chamber. The committee debate was fascinating. We had several unexpected and I suspect unwelcome and certainly distracting interventions by Labor people, including Senator Robert Ray, the Minister for Home Affairs. Let us look at Senator Ray's spirited defence of the need for fixed terms. He said the Labor Party wants fixed terms and the only reason it is not going for fixed terms is that we did not want fixed terms. Senator Ray keeps contributing to the debate and accusing other people of illogicality and inconsistency. I just say that if the Labor Party policy is for fixed terms, why is it that this solitary element of fixed terms in the Australian Constitution-which the Minister in the debate has conceded does constitute some fetter upon the capacity of the Prime Minister (Mr Hawke) to just pull the Parliament out at any time and to have elections whenever the Prime Minister likes-is being struck down by the Government? I think the answer is quite clear: It is being done to meet the political objectives of the government of the day. It is not being done in a conscientious attempt to improve the Constitution. We referred in the debate to an opinion given by Mr Ewart Smith, who rocketed to fame because of his putting the finger on a fundamental deficiency, a defect, in the Australia Card debate. Mr Smith in his opinion, which as he stressed was not one which was given on the basis of being paid to give advice to the Opposition, was quoted as stating: He was particularly opposed to the four-year term proposal because it would give senators four years, thus enabling a prime minister to call an election for the Senate as well as the House of Representatives for no good cause. The Senate's power would be reduced if the rotation principle under which half the Senate retires at a time was abandoned. I draw the Senate's attention to the fact that in our amendment we have not included those matters which might be regarded as matters of political argument. We have not sought to include in the title, in the question, an allegation that this is about reducing the power of the Senate. We have not included our opinion that this can lead to more elections rather than fewer elections. In other words, we have not emulated the government in its approach to phrasing this question. We have not sought to replace one dishonest question with another. We have not said that because the Government is trying to slant its question in favour of its proposal we should produce an amendment which would slant the question in favour of the Opposition. We are saying that all we want in the long title of the legislation is something which fairly and squarely tells the people of Australia what they are voting about. They can draw their own conclusions and listen to arguments about whether that is good or bad, whether there should be more or fewer elections, whether it strengthens or reduces the power of the Senate. These are matters of political judgment, political opinion, and they are matters which we do not seek to pose in this question because we accept that whichever way one did that would lead to some bias. The present question being posed by the Government is clearly a question which has been asked to try to produce the answer the Government wants. That is highly undesirable; it is wrong. It is a fraud upon the electorate, and this amendment is really a test of the Australian Democrats' bona fides with respect to this debate. All we seek is an honest description so that people will know what they are voting on. I believe that unless there is a commitment to having this referendum carried, whether it is understood or not, then this amendment will be given universal support. Certainly it has the very strong support of the Opposition parties. We believe it is essential if we are to have an honest referendum campaign. I commend the amendment to the Senate. Senator HARRADINE(Tasmania)(3.24) —I rise to support this amendment. I do it reluctantly because I do not think that it includes a particular question that should be posed. It may be that the particular question I would include does go over the border a little and into argumentative areas. I think Senator Chaney has been a little too clinical in opposing the drafting of the question. Nevertheless, I commend him for that. Senator Chaney's description of this measure is far more truthful than the long title that has been put forward by the Government. I would have added a question as to whether the people desired to enable the Prime Minister (Mr Hawke) to call a double dissolution election at his pleasure. That is really what this Bill is all about. Nevertheless, I concede that the Leader of the Opposition (Senator Chaney) on behalf of the Opposition has attempted to get some truthfulness into this measure. As he said, the long title of the Bill will be the actual question that is asked of the electorate. I believe it is most essential, if we are going to keep the Government and the Parliament honest on a major question such as this, that we should ensure that the question is not untruthful, misleading or deceptive, as indeed it is if it goes before the people as it is contained in the long title of the Bill. Therefore I support the amendment of the Leader of the Opposition and I hope that others will do so as well. Senator DURACK(Western Australia)(3.26) —I also rise to support the amendment moved by Senator Chaney. In doing so I want to refer generally to the debate which has taken place on the Bill earlier in the committee stage. The long title of the Bill which we are seeking to amend states simply: An Act to alter the Constitution to provide for 4-year maximum terms for members of both Houses of the Commonwealth Parliament. In one sense that is literally correct, but it suffers from a major deficiency in that it does not tell the whole truth, it tells only some of the truth. Of course, it has been a very well recognised principle in the law that to be telling half truths is to be telling untruths, falsehoods. Senator Crichton-Browne —The Labor Party thinks it is clever. Senator DURACK —The Labor Party thinks it is clever, as Senator Crichton-Browne has said; it thinks this is smart, very clever. This is an extremely serious proposition that the Government is putting forward deliberately to mislead the people. Why does the Government not tell the whole truth? The reason it does not want to tell the whole truth is that the people may not so readily answer yes, which the Government wants, if the whole truth is told. If it just tells the people that this is to have four-year parliaments the average person would say, `Oh, that means four-year parliaments; yes, we think that this is a good idea'. There is clearly a strong view in the community in favour of four-year parliaments, although I do not think we should by any means assume, nor should the Government, that that will be the majority view of the people of Australia. Nevertheless, let us assume that that is a majority view at the moment. Certainly the Government is not doing even itself much service by trying to pull the wool over the eyes of the people. They know that the Government is relying on the goodwill of a large number of people who favour four-year parliaments. The Government is trying to pull the wool over the eyes of those people by bringing in under the coat tails of this amendment proposals which are clearly designed to weaken, if not ultimately destroy, the Senate. If that were spelled out clearly, and the amendment Senator Chaney has moved does that, then people would be less likely to support it. There are three quite separate questions. The first question is whether the maximum term of the House of Representatives should be extended from three years to four years. As I say, that is one question to which large numbers of people in Australia will say yes. The second and separate question is whether or not the fixed term of the Senate should be destroyed. The third question is whether the Senate should have exactly the same four-year term as the House of Representatives. Really there are three questions all rolled into one in this proposal. I think that it is quite dishonest for the Government not to explain the full ambit of this in the question that it will put to the people. Also I think it is deplorable for the Government, although perhaps not dishonest, to be asking three questions rolled into one. It should be asking the people in separate questions whether they are in favour of this or that. The Government could, if it thinks there is a connection between the questions, make certain answers contingent on others. In fact, that was part of a referendum proposal a few years ago when Senator Evans was the Attorney-General-not that I thought much of that proposal either, but at least it was giving people a proper choice. In this case, the Government has not. In the course of this debate there have been a great many statements made by honourable senators opposite-indeed, by front bench members of the Government. I cannot quite remember, but I think Senator Robert Ray and certainly Senator Tate have been arguing strongly in this debate that this proposal does not weaken the power of the Senate. How Senator Tate, Senator Ray or other honourable senators can rationalise the idea that by destroying a fixed term of six years and making that term entirely at the whim of the Prime Minister of the day will not in any way affect the powers of the Senate is beyond my belief and understanding. The Minister for Justice (Senator Tate) does not seem to have much knowledge of constitutional law because, of course, the increase in the power of the Prime Minister has resulted from the development of his power to call an election whenever he is in trouble. Sometimes that trouble is with his own supporters, not necessarily with the Opposition. However, the development of that absolute power as a convention of our Constitution means that the Prime Minister can go along to the Governor-General with some reasons-they may be specious reasons, but they are not really examined very much; maybe they ought to be- and ask for an election. The convention really means that a Prime Minister with a majority in the House of Representatives can go along and ask for an election to be called whenever he likes. The saying is that the Prime Minister always carries an election in his pocket. That is now a well recognised convention of the Constitution; whether it is right or wrong, that is a fact. There have been a couple of impediments to Prime Ministers calling an election of even the House of Representatives. One of these is in regard to the fixed terms for Senators. As Prime Minister Menzies found when he had an early election in 1963 he got elections for the House of Representatives out of kilter with those for the Senate. In that situation one has to have half Senate elections or more early elections to bring the two Houses back together. Therefore, that is a consideration that Prime Ministers have had to bear in mind. To some extent, it has restrained the enthusiasm of Prime Ministers for just going off and having early elections whenever they saw fit. Of course, the other restraint on Prime Ministers in calling early elections is that if they wanted to include the whole of the Senate that could be done only in the case of a deadlock between the two Houses in order to bring into operation the double dissolution provisions. Indeed, also in invoking the double dissolution provisions Prime Ministers have had to bear in mind that this also causes the two Houses to get out of phase and leads to the problem of juggling Senate and House of Representatives elections with half Senate elections subsequent to double dissolutions. There have been very clear restraints, even on Prime Ministers' powers over the House of Representatives, arising from the structure of the Senate. However, in the proposal before the chamber we now have the answer to all the dreams of all Prime Ministers, past, present and future because in future they will not have to manufacture double dissolutions; they will not have to worry about half Senate elections any more. They will simply go along to Yarralumla and say, `I want an election' and the whole of the Senate will be dissolved at the same time as the House of Representatives. Senator Harradine pointed out in the debate that perhaps we ought even to have said that this proposal will relieve Prime Ministers of the need to have double dissolutions in the future, and the certain amount of trouble that sometimes causes them. Prime Ministers cannot always get grounds for a double dissolution just when they happen to want one. In this proposal we have a remarkable increase in the powers of the Prime Minister. The Government has proposed a quite massive reduction in the status of the Senate. Clearly, the Senate's power must only be weakened, if not destroyed, by a proposal of this kind. To say that this does not in fact take away the power of the Senate over money Bills, to reject legislation or whatever, again is literally true. However, it does not express the total result of the Government's proposals. Neither Senator Tate nor any of his colleagues need take my authority for what I am saying because the Leader of the Government in the Senate (Senator Button), happily sitting at the table at the moment-- Senator Button —Most unhappily sitting at the table. Senator DURACK —Oh, Senator Button is not happy. I am not surprised that Senator Button is not happy. If Senator Button has been listening to all those honourable senators sitting behind him, particularly to his colleague the Minister for Justice, he would not be happy with the rubbish they have been serving up to the people of Australia in this debate. I will now get to Senator Button. Senator Button took part in a debate which I remember very well because I happened to be the Minister at the table at the time. As a Minister in the Fraser Government I had introduced a proposal-- Senator Button —Was this in 1887? Senator DURACK —It was in 1977. It was a very mild proposal compared to this one. I just wanted to have simultaneous elections. The people did not agree with that and I, unlike members of this Government, abide by the decision of the electorate expressed on no fewer than three occasions. In 1974, 1977 and 1984 the people of Australia said no to this idea of having, as it was then, half the Senate go to election with the House of Representatives. But this proposal goes much further than that because it provides that the whole of the Senate will have to go to election every time there is an election for the House of Representatives. Senator Button supported the Bill that I introduced into the Senate. Senator Button —I was only a boy at the time. It was a long time ago. Senator DURACK —No, Senator Button was not just a boy. He had been in the Senate three years then because it was in 1977. Senator Button had become quite an experienced senator by then, I am afraid. Senator Button said in that debate: Of course, the real importance and significance of this proposal from our point of view in the Opposition- at that time the Labor Party was in Opposition- is that it does what many of its critics say it will do- I ask Senator Tate to attend to this- It limits the significance and influence of the Senate . . . we do have a very strong view that the powers of the Senate should be delimited at every opportunity. These are the basic reasons why we will be supporting the legislation. In saying that we are being consistent with everything we have said before. Of course, Senator Button was also prescient of what his colleague Senator Gareth Evans later said when he came into this place. In fact, Senator Evans was the Attorney-General for a while, a not very successful Attorney-General of the Labor Government. About the time Senator Evans was elected to the Senate-I think it was on 2 July 1978 and he had just taken his seat in the Senate-he was interviewed by the Canberra Times. We may think he is very expansive with his words these days but in those days he was not only more expansive but also probably even more truthful than he is today. He said, as reported in the Canberra Times on 2 July 1978: The way to abolish the Senate, or at least to muzzle it, is to white ant it from within. That is precisely, Senator Tate, what this proposal does. Senator SHEIL(Queensland)(3.40) —I support Senator Chaney's amendment moved on behalf of the Opposition, not so much because the force and logic of his argument needs my support but more to give the Australian Democrats time to have a think about this. I see they have run out of the chamber at the moment. They are probably down in their little bunker doing some deal with the Government, as is their wont. When I saw the titles of these referendum Bills that are to be put before the people I thought the Government should have been had up before the Trade Practices Commission for misleading advertising, because that is exactly what it has tried to do. The argument has been put time and again during this debate that the Constitution Alteration (Parliamentary Terms) Bill 1988, the four-year term Bill, is a massive alteration to the powers of the Senate and goes against what the founding fathers intended for this country. They were trying to dissolve the power of government, to make it so that no one person could ever gain control of the reins of government in this country. Yet we have here a gigantic step to put power in the hands of the Prime Minister. If it is not obvious for everyone to see now it certainly will be at the end of the campaign. People will say no to these referendum proposals. I assure the Government that it will be a massive campaign because I see this Bill as striking a blow against the freedom of the people. Nearly all Prime Ministers, not just Labor Prime Ministers, have tried by various means in the past to limit the powers of the Senate. We have had for example, the appointment of Ministers in the Senate; the appointment of the Leader of the Government in the Senate by the Prime Minister; the use of referenda; the use of banging Bills through the Parliament if the Government had the numbers and testing them in the High Court; and the use of the treaty power. There have been lots of means, all designed to try to undermine the power of the Senate. This particular measure for the Senate to have terms equal with those of the House of Representatives is perhaps the biggest axe blow at the feet of the Senate that it could have. I am very pleased that Senator Harradine is supporting the amendment. I take his point that it really should go further. Senator Chaney has been most circumspect in framing the terms of the amendment so that it cannot possibly offend the Government on political grounds. It certainly clarifies the position so that the people will know exactly what they are voting for, and I am sure if they do know what they are voting for they will vote against the proposals. That is one of the main reasons why I oppose the title of the Bill. It is obviously intended to mislead the people. The Government should be ashamed of itself for indulging in misleading advertising. That is exactly what it is. Senator WALTERS(Tasmania)(3.44) —I enter this debate to support Senator Chaney's amendment to the title of the question that will be put to the Australian people because it certainly does not explain to the people just what the Government is doing. Senator Chaney's amendment proposes that the Senate fixed term be reduced from a six-year period to a maximum of four years, requires a simultaneous election for both Houses of the Commonwealth Parliament and abolishes the system whereby half the Senate retires every three years. Senator Durack has just quoted Senator Button who on a previous occasion acknowledged at least that the Constitution Alteration (Parliamentary Terms) Bill 1988 would strip the Senate of its powers if it compelled the Senate to go to an election along with the House of Representatives whenever the Prime Minister wanted. Yet, we have heard Senator Tate say that it does not strip the Senate of its powers; it just changes the characteristics of the Senate. That is obviously not true. Senator Button was being fairly forthright and honest. Senator Evans, at a later stage, stated: The way to abolish the Senate, or at least to muzzle it, is to white ant it from within. They at least were being honest. I will quote a little further because Senator Evans in 1983 said more than that in relation to a simultaneous elections, a proposal not quite as bad as what we are looking at today. He said: These proposals are relatively modest compared with some of the changes we may want to be making in the future. So now it is very clear. Senator Evans warned the Australian community that simultaneous elections were only one step towards demolishing the Senate. This is one of those proposals that Senator Evans was referring to when he made the statement he did because this proposal goes a lot further than simultaneous elections. It says that the whole of the Senate shall be taken to a election every time the Prime Minister of the day wishes to take the House of Representatives. There is no point in Senator Tate using pretty words like `it changes the characteristic'. Both his leader and his previous Attorney-General, Senator Evans, have told the people, `Yes, it does strip the Senate of its powers'. Senator Evans said that simultaneous elections were nothing compared to what Labor had in store for the Australian people later. We are only now realising what he meant by that statement. Senator CRICHTON-BROWNE(Western Australia)(3.48) —At the risk of sawing sawdust I want to support the amendment Senator Chaney has proposed. I regret that the Australian Democrats have not accepted this offer to respond favourably to a very reasonable amendment but rather have fled from the chamber. I would have thought that if there was one thing that a government ought to be scrupulously honest about, it is questions it is putting to the public by way of referendum. If there is one thing we should be able to rely on governments to do it is to ask people a question which is relevant to the answer. I can think of nothing more blatantly dishonest for a government to do than to so structure a question as to absolutely mislead those who will be required to compulsorily answer it. We have here a question to be put to the people, concerning a Bill to alter the Constitution to provide for four-year maximum terms for members of both Houses of the Commonwealth Parliament. What it does not say is in part corrected and rectified by Senator Chaney's amendment. His proposal is to increase the terms of members of the House of Representatives from a maximum of three years to a maximum of four years, to reduce the terms of senators from a fixed six years to a maximum of four years, to require simultaneous elections for both Houses of the Commonwealth Parliament and to abolish the system whereby half the senators retire every three years. Senator Chaney could have gone further and still been correct. He could have referred to fixed terms, of which there is no mention in his amendment. He could have asked the very simple question that Paddy McGuinness proposed: Would the people of Australia support a Senate with reduced powers? Would they support the reduction of the powers of the Senate by way of a constitutional amendment? Of course, the answer is no. I find it a sad indictment, but an honest reflection, of this Government that it is so prepared to mislead the Australian people. It reminds me starkly of the then Attorney-General, Senator Gareth Evans, trying to slip through this Parliament a Bill which appropriated $2m for the Yes case and no money for the No case. Fortunately, we were able to move an amendment to that Bill to prevent that. The Government's proposal makes no reference in any form to the present section 7 of the Constitution, which refers to the Senate having fixed six-year terms-no less and no more. The question in no way relates to section 28 of the Constitution, which refers to the terms of the House of Representatives. It says: Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General. The difference, the comparison, is stark, as was the intention of the founding fathers in so drafting those two sections. The intention was obvious. It was intended that the Senate be a States House and that it remain remote, removed and untouched-- Senator Boswell —Independent. Senator CRICHTON-BROWNE —Independent, untrammelled by the machinations, convulsions, political intrigue and political manoeuvring that might take place in the House of Representatives. It was intended that, if events took place in the House of Representatives which caused it to have an election, the Senate would stand removed from it. This proposal, although one would never know it from reading it, is intended to remove that capacity and to attach the Senate, like a weak relative, a mere grey shadow, to the House of Representatives, compelled in its functions and its future by events of the House of Representatives, inextricably tied to the fate not only of the government but of the House of Representatives and quite unable to stand alone and removed. It is now to be simply an instrument of the Prime Minister and its duration, its term, will rest exclusively in his hands. When he decides, for his own political expediency or for the future of his Government, to have an election, the Senate will now find itself required to go to an election also, for reasons quite unrelated to its own conduct and its own activities but simply to give the Prime Minister a chance to have an early election and to have his Government returned. I have no doubt that this question, when put to the people, simply on the basis of its breathtaking audacity, its dishonesty, will be defeated. I have no doubt that, as Senator Sheil said, at the end of the day, if members of the public do not understand all the arguments of the type outlined by Senator Durack, they will understand one thing-that the question is a fraud. If they understand nothing else they will know that it is a bodgie question, a dud question, a fraud question, and on that basis alone I have no doubt that it will be defeated. I am quite certain that, given that the campaign for the No case is simply no more than presenting the facts, the question will be defeated. Senator BOSWELL(Queensland)(3.56) —I too support the amendment moved by the Leader of the Opposition in the Senate, Senator Chaney. Today we are addressing the most fundamental principles that the Australian people rely on-the Constitution of Australia. It is the rock that this nation is built on. It is our democracy encompassed in a very small book of 30 or 40 pages and it should be handled like eggs, with the most extreme care. Yet we have this Government coming in here with a cavalier attitude, proposing a short Bill of only one page which is immense in its dishonesty. The people of Australia deserve to know the meaning of the question that is to be put to them in the referendum in September. They deserve to know, when they answer that question in the affirmative or the negative, what that response will mean. The question as drafted in the Constitution Alteration (Parliamentary Terms) Bill clearly does not convey the meaning of the responses that will be required. We have heard from various speakers on this side of the chamber and Senator Harradine that this Bill is clearly in default. It will take away the insurance policy that the people of this nation have relied on since the founding fathers proposed the Constitution in 1901. It will emasculate the Senate but we are not told this in the question proposed in the Bill. The title of the Bill is clearly in error and no-one on the Government side can launch an argument to support the proposed question. Senator Chaney's amendment is clear and concise, and it tells the people exactly what will happen if they support the Yes case or if they vote no. Surely the Government and the Australian Democrats, who are noticeable by their absence from this debate, can support a question that will allow the people to know what they are voting for. I do not know where the Democrats are at the moment. I hope that they come into this chamber to support Senator Chaney's amendment. Otherwise they will be forever condemned as the running dogs of the Australian Labor Party. They will be forever condemned as the fourth faction of the Australian Labor Party that never had the guts, the fortitude or the courage to stand up in this Parliament for what is honest and decent. I do not know where they are at the moment, but I hope that they come back here and can hold their heads up in this place and say, `We support a question that is honest, and when people answer yes or no to that question they will know what they are answering yes or no to'. Of course, if they do not come back the question put to the people will be one that is dishonest. I believe that the people will respond to that dishonesty by voting no, as they did in 1974, 1977 and 1984. The Democrats may be considering the fact that, if this proposal by the Government or, I suppose, Senator Chaney's amendment is passed, they will be locked into this place forever and will have to get only 3 or 4 per cent of the vote in their respective States. That will be the decision they are making now as they are locked in a huddle downstairs-whether they can offend the Government, which has put this Bill up, and, if they do offend it, what the repercussions will be for the Democrats. These thoughts will be going through their minds at the moment. I say to them as they are making their decision: there is more to politics than expediency. There is honesty and integrity. I hope that the Democrats will not be found lacking in those qualities and that they will support Senator Chaney's amendment. Senator TEAGUE(South Australia)(4.02) —I wish to reinforce the speeches made by my colleagues in the Opposition and to support the amendment that has been moved to the title of the Constitution Alteration (Parliamentary Terms) Bill 1988 by the Leader of the Opposition, Senator Chaney. This is a matter of honesty and of soundness in what is being put to the people of Australia. We are saying, and no-one can deny, that there is a lack of honesty and soundness in the description as drafted by the Government that will be put to the people in the referenda later this year. I want to give a simple analogy. If a government were proposing to cut taxes and at the same time to cut its spending on various government programs, it could conduct a poll of the people of Australia to see whether there was general agreement for this balancing act of government decision that was being proposed. If it wanted to maximise an outcome for lower taxes and to dress up the proposal to get the assent of the people, it would just put the question, `Are you in favour of lower taxes?' One can predict that, if that was all that was known, the people of Australia, any community of Australia, would answer overwhelmingly, `Yes, we are in favour of lower taxes'. However, if the proposal was put in alternative terms-`Do you want cuts in government programs such as age pensions, veterans' entitlements, unemployment benefits, road development, schools and hospitals?'-any group of Australians that were polled would probably say, `No, we do not want the cuts'. In this example I am putting forward there would be a balance of lower taxes and lower spending but, depending upon which part of that package was put by way of the question in the poll, we would get completely different outcomes. If there were to be such a proposal and if it were to be credible and worth the paper it was written on, the Government would need to proceed in a bipartisan and balanced way and to say `Do you want cuts in government spending programs to the extent that they enable corresponding cuts in taxes?'. That might not be quite as simple to put to the people, but it certainly would be more honest. The people would sit down and say, `Ah, there is the word ``corresponding'' there. If we have cuts in programs it will enable cuts in taxes; if we have the cuts in taxes it will require cuts in spending'. There would be a variety of responses and it would be hard to predict whether the answer would be yes or no. Depending upon the way in which the question is put, we can predict that the answer will be yes or no or somewhere in between. Clearly in the case that is before us in the chamber, we have the Government choosing a biased title and a biased question with regard to the first proposal for change to the Constitution. The Government's proposal has these words in the title: An Act to alter the Constitution to provide for 4-year maximum terms for members of both Houses of the Commonwealth Parliament. At first blush that looks pretty straightforward and could be summarised as a proposal to establish a four-year Parliament. There is general approval out in the community for four-year parliaments. Without reference to the details, those words are calculated by the Government to maximise a `Yes' outcome. However, if we put an alternative question at the other end of the spectrum-`An Act to alter the Constitution to abolish real power in the Senate'-I would predict that the people of Australia would say no to that question, because there is a widespread view that the Senate is important as a House of review, as a protection for the smaller States and indeed as a protection for the processes of parliament being sound. People would not want to see the abolition of the powers of the Senate, whether it is in relation to the identity card, which the Senate stopped but which raced through the House of Representatives, or the Bill of Rights, which similarly was approved with the iron majority of the Government in that place but was stopped when it came to the closer scrutiny and the detailed argument in the Senate. What the Leader of the Opposition has put forward as a more honest, more sound and more appropriate title is not at one extreme of description, as is the Government's proposal, or at the other extreme-the one I have just put forward for the sake of the argument. Rather, it is directly descriptive, directly honest and directly sound. It is in four parts and it states that the title should be `An Act to alter the Constitution' to do four things: to increase the terms of members of the House of Representatives from a maximum of 3 years to a maximum of 4 years, to reduce the terms of Senators from a fixed 6 years to a maximum of 4 years, to require simultaneous elections for both Houses of the Commonwealth Parliament, and to abolish the system whereby half the Senators retire every three years. Nobody in these several days of debate on this matter in the chamber has argued that those four matters are not accurate or factual. Is there anyone who would now want to say that those four matters are not accurate or factual? I do not hear any protest or anyone that would want to say, here in the chamber, that these words as proposed by Senator Chaney on behalf of the Opposition are other than factual and accurate. So I can only say that, when the people of Australia are looking at a matter that proposes to change the Constitution, they are aware that the Constitution can be so changed only if there is before the Houses of the Parliament a Bill such as we have here today and we debate it carefully and resolve upon an appropriate form of words that maximise what is sound. Then the outcome of that debate appears at the polling booth at a referendum and the people say yes or no to it. I put it to Senator Tate that we have a great responsibility in terms of our consideration of the Bill to ensure that the title by which the measure will be summarised and described is accurate and sound. If it is not accurate and sound, we are letting down the people of Australia. When the people of Australia vote on this matter, they will not have the option of saying, `Yes, but' or `No, if'. They will be able to say only `yes' or `no'. It is paramount that the description of the measure that is put to them to which they are to say `yes' or `no' is put honestly and soundly. Because the Government's title is not meeting those criteria, it should be amended. I can only urge, in concert with my colleagues, that the Opposition's amendment be accepted. Senator TATE(Tasmania-Minister for Justice)(4.11) —The Government rebuts the idea that, in describing the Bill in the way it has by its long title, it has set out to mislead the Australian people. I believe that the description, `A Bill for an Act to alter the Constitution to provide for 4-year maximum terms for members of both Houses of the Commonwealth Parliament' is short and simple, but it is adequate to the task of describing the various elements in the Bill. What we are putting in that long title is the essence of a proposal to be placed before the Australian people by way of referendum. It is quite clear that, in providing for a four-year maximum term for members of both Houses, one is increasing the term of members of the House of Representatives from the next election onwards, and that the fixed six-year term of senators, as presently provided, will be altered. The long title, in being expressed in the way it is, will convey the essence of the proposal to the elector and will be sufficient to alert that person to the basic nature of what is proposed. There is no slant or subterfuge involved in the way the matter is expressed. I believe that, by the time the referendum proposals are put, the people will recognise the adequacy of what is put in that simple formula. I believe that the long title should be supported. I could go through all of the contributions to the second reading and committee stages of the Bill, but they have already been recapitulated. I will simply say that the long title adequately describes what is being put in this Bill. Senator MACKLIN(Queensland)(4.14) —The Opposition has moved an amendment regarding the long title of the Bill. This is important because, as many people have said, the long title of the Bill represents the question which people will be asked to assert or refuse. It is interesting to compare the title suggested by Senator Chaney in his amendment, on behalf of the Opposition with that suggested by the Government. They illustrate two different philosophies of what the long title should be about with regard to a Bill on constitutional change. Senator Chaney's title enumerates the changes, which I think is a reasonable approach. The Government's enumerates the result, which is also reasonable. Quite frankly, I think that at the end of the day it is very difficult, certainly in terms of the discussions we have had on this matter, to choose between one philosophy and the other. Both have something to recommend them. One would hope that the items which are included in both will be the substantive items debated in the community. One would also hope-I think that I am treading on shaky ground here-that the Yes and the No case would rehearse the substantive arguments. I realise that I am treading on very slippery ground there. I say that because if anybody wants the enlightened task of going back and rereading the Yes and No cases for many of the constitutional proposals in the last 10 years, he cannot but be struck by the lack of information conveyed to the elector and the extraordinary propositions that were put both for and against. Senator Harradine —Anyway, how many read them? Senator MACKLIN —Senator Harradine asks, `How many read them?'. We had a very interesting debate here, I think in 1983, about whether or not the Government should be able to spend money elsewhere. I think that it was indicated quite clearly in that debate that all honourable senators were of a mind that that ought to continue, that at least there was a chance that at some stage information might be conveyed to the elector. I suppose it is up to those who comprise the committees that write the Yes and the No case to do their best to present factual information to the elector upon which he is able to make a decision. Some extraordinary statements have been made in this debate so far, particularly those attacking the Australian Democrats. I do not propose to answer them. Most are contemptible and have no bearing on this issue. I suppose it is part of the cut and thrust of political life in this country that people feel that abusing one another goes for intelligent debate. I would have thought that in addressing one's mind to this issue, one would have to end up choosing which philosophy one wishes to adopt in couching the final question that goes to the people. We have decided, for a couple of reasons, that that part of Senator Chaney's amendment which talks about a fixed term and the part at the end which talks about abolishing the system whereby half the senators retire every three years, which is the formal context that governs the Senate and the Senate's elections, do not reflect the practical context of Senate elections. The Government's proposal, which actually talks about a maximum term rather than simply a four-year term-the proposal is not for a four-year term; it is for a maximum of four years-is an accurate description of the outcome. That is the basis on which people will be asked to say, `Yes, I want that' or `No, I don't want it'. I do not want to couch the Opposition's proposition in the terminology that it was another cynical attempt to manipulate the electorate. I hope that in the debate on the rest of the Bills we will address ourselves to those issues in a more rational and reasonable way. We accept the philosophy of the Government's terminology in terms of trying to put the outcomes in the long title rather than putting the changes in the long title. On that basis, as well as the other basis of the two items reflecting the practical context as well as the theoretical context, or the constitutional context, we support the retention of the long title to the Bill. Senator CHANEY(Western Australia-Leader of the Opposition)(4.20) —I rise to speak further, having heard Senator Macklin put down a position for the Australian Democrats, and to express my very great disappointment at the attitude he has taken. He has made a statement which is quite inaccurate about the approach the Government has adopted on this question. Senator Macklin said that the Government, in determining the title of this Bill and in laying down what question, therefore, will be put to the Australian people, has enumerated the result of the changes. That is not true. The Government has enumerated a result of the changes. It has enumerated one of the changes and it has carefully concealed the other changes that will flow. In an attempt to be absolutely fair in this matter, the Opposition has looked at what we see as the real changes of substance which are effected. We have left out of the question what we believe to be the results, which are matters for argument. Is one of the results, for example, fewer or more elections? One of the results about which we certainly know is that if this amendment is carried it will make it easier for the Australian Democrats to retain their representation in this place. That is not the result; it is a result of this referendum. I raise that matter because the Australian Democrats commenced their political being under the leadership of an ex-colleague of mine, Don Chipp. Don Chipp said that his objective in coming here was `to keep the bastards honest'. By `the bastards' he meant us politicians-not Liberal politicians in particular or Labor politicians or independents. He wanted to keep government, and politicians generally, honest. I suggest to Senator Macklin that he think further about the argument he has put. I believe he is under a particular obligation to do so because, with respect to this amendment, a very heavy element of self-interest is involved. I do not accuse Senator Macklin of speaking from self-interest. I simply remind him that when one's interest is involved, that is the time when one has to examine most carefully one's thought processes and motivation. I simply say that there is a particularly heavy onus on the Australian Democrats, in supporting a change to the Constitution which is of direct and clear benefit to the Australian Democrats, to be doubly concerned to make sure that the argument they put forward is solid, logical and correct and that they are doing the right thing by the people of Australia. I say without a moment's doubt that Senator Macklin is not correct when he says that the Government has given us a short title, a long title and, therefore, a question which enumerates the result of these changes. It enumerates one of the results. It does not enumerate that a result of these changes is that one of the things which has been described by Senator Tate as a distinguishing characteristic of this chamber is to disappear. I will quote what the Minister for Justice, Senator Tate, who is in charge of this Bill, has said, because I wish to avoid any suggestion that I am trying to use words in a manipulative or partisan way. I adopt these words used by Senator Tate: The proposition that fixed terms are a distinguishing characteristic of this chamber . . . is absolutely correct. That is what Senator Tate said in the course of the debate. One of the results of this constitutional change, therefore, is to remove one of the distinguishing characteristics of this chamber. We do not say that the title should include reference to the fact that the abolition of that distinguishing character is to increase Executive control over the Senate, to make the safeguard of the Senate therefore less real. We do not say that one of the results is to enable the Australian Democrats always to have access to a lower quota and therefore to improve their chance of election. We do not raise all of those political results which we genuinely believe will flow from it. What we have done-and I ask Senator Macklin to consider this again-is to set out what are the key changes. We can all argue about what results will flow, because I think honest men can differ. Honest men can differ from year to year. Senator Tate, whom we all regard as an honest man, thought in 1983 or 1984 that an eight-year term was a good idea. He now thinks that it is not a good idea. Views on these matters will change over time and in different circumstances and, perhaps, when the majority of one's party changes its mind. We have all been through that experience in a political party. We are not always able to argue the case that we personally believe in. We argue the case that a majority of the party, after proper argument, has determined. An absolute requirement on Senator Tate and all members of the Labor Party is that the view that they put forward must be that of Caucus. We understand that. I do not suggest any lack of morality or otherwise on it. It is a bit confusing for the public at times, but the system operates under those rules. The critical point is that we are looking at the honesty of the question which is being put to the Australian people. I do not believe that it is possible for Senator Macklin to assert with accuracy that the question as posed by the Government gives the result of the changes. It gives one of the results of the changes. The things which matter are the important other results-results which go to the sort of constitutional structure we have and to the capacity of the Australian people to resist wrong actions by government. There has been a lot of reference in this debate to the identity card and to the Bill of Rights. They are quite important reminders of the fact that the Senate, in a quite subtle way, stands for the people of Australia in a way that no other body in politics can. It is worth remembering that the really fascinating point about the ID card was that the majority in the Senate, which included the Australian Democrats, the Liberal and National parties and Senator Harradine, took a decision to oppose the identity card when 70 per cent of the people of Australia agreed with the card and disagreed with us. We defeated it twice. We had an election, we lost the election, and by the time the Bill came back before us the proportions had reversed; 70 per cent of the Australian people were then against the card and agreed with us. The peculiar thing was that we in this Senate were prepared to take what was then a very unpopular stance, vindicated by the subsequent change of mind of the Australian people as they came to understand what the card meant, as they listened to the arguments put by the parliamentary committee, saw the report put down by my colleague Senator Puplick, which I thought was an excellent exposition of the difficulties with the card, and so on. That is what we are talking about. We are not talking about some airy-fairy thing which means nothing. We are not talking about our own terms. In truth, very few of us get to serve a full term. We know that. What we are talking about, essentially, is this question of whether some limitations are placed on the power of government to override the legislature. It all sounds so theoretical and self-serving. That is why one must refer to those examples which show that the Senate, in the end, stands for the informed will of the people. That is what is under threat. I think it is quite wrong of the Australian Democrats to take refuge in the argument we have just heard from Senator Macklin. It was a very disappointing response from him. I ask him very seriously to reconsider it. Senator Harradine thought that we had been deficient. He thought that we would give the Australian people a better picture if we also told them that the Bill was to enable the Prime Minister to call a double dissolution election at his pleasure. Strictly, that is accurate, on the word of the Minister. The Minister told us both last Thursday and today that the Prime Minister effectively has the power to call an election at any time. My response is to say that one can argue that some emotional words are used, that it goes beyond flat description. I am bending over backwards to be absolutely flat and fair and to leave the argument to argument rather than to what is contained in the title of the Bill and the question on the ballot paper. The Australian Democrats must expect to be judged in this matter on the obvious facts. They have to be judged on the fact that their own self-interest must lead them to support this constitutional change because they need only half as many votes to get elected to this place, if we have a permanent double dissolution situation, as they need in a half Senate election. That is why they should be doubly careful in this case. They should be bending over backwards, as I have been bending over backwards, to be fair to the Australian electorate. If they maintain the argument which Senator Macklin has adopted this afternoon, I accuse them of not being prepared to protect the Australian electorate and to ensure that an honest question is put to it. I accuse them if not of dishonesty then of allowing their whole judgment and approach to be clouded by self-interest. I do not believe that this is in any way consistent with the basis on which the Party was founded by the ex-senator, Don Chipp. It is a very sad drop in the standards of the Australian Democrats. Senator TEAGUE(South Australia)(4.31) —I rise briefly to support fully what Senator Chaney said, particularly about self-interest and honesty for each one of us in this chamber. I rise because Senator Macklin has not risen. I make the same plea as Senator Chaney has made to him and to the Australian Democrats, to reconsider the position that they have just put to us through Senator Macklin's speech. In his quiet speech, which weighed up the various merits of the Government's title and the Opposition's, he called for a rational approach. He came to a conclusion which the rest of us in the Senate see as being obviously on the side of the self-interest of the Democrats. Yet he did not make any explicit reference to his own self-interest. The Minister for Home Affairs, Senator Robert Ray, often speaks on these matters. I am not concerned if the Democrats rise to say that it is in their self-interest to have words left as they are, as proposed by the Government, because in that way more people would be more inclined to see this proposal as less dangerous to the rights of Australian citizens and to the stability of the Senate and the working of parliament; therefore, it is more likely to get a yes outcome and advantage the Democrats. There is nothing wrong with a member of this Parliament honestly saying: `I am voting this way because it is in the interests of my Party to do so'. But if a soft speech is made which calls for rational debate and which then neglects any analysis of self-interest, surely there is a question about credibility. Surely the questions will be asked with all the directness that the founder of the Democrats put, of so-called `keeping the bastards honest'. Is it not the case, Mr Chairman, that Senator Macklin, like you and I, is a short-term senator? He will be facing an election at the next due half Senate election in 1990. If he were to face that election, without any change to the Constitution in the meantime, he would need to accumulate a quota of 15 per cent of the votes in Queensland. However, it is very problematic whether he or any other Democrat will get such a quota at the next due half Senate election. So he would be facing defeat and no longer remaining as a senator for Queensland. However, if this Bill is passed and put to the people in a few months time in September and if it gains the assent of the majority of Australians and the majority of States, the circumstances will be very different. Senator Macklin in particular will need to accumulate approximately only 7 per cent-- Senator Burns —So will you. Senator TEAGUE —So will any senator, to be re-elected to this place. Therefore, his task of gaining election will be twice as easy. That is particularly important for the Australian Democrats and for any minority party, Independent senator or emerging candidate. Unlike parties which have long had a substantial following in Australia such as the Liberal Party of Australia, the National Party of Australia and the Australian Labor Party, they will find it much more difficult to get a 15 per cent quota than to get a 7 per cent quota. When that stares us in the face and when it is in the self-interest of the Democrats not only to support this Bill and advocate its support by the people of Australia in the referendum but also to support a title to that question which is likely to maximise that vote, we should rightly ask: What is the self-interest and the hidden agenda of the Democrats in this matter? I am not berating Senator Macklin for his calm and apparently rational speech. I am not even berating him for standing here and saying that it is in his self-interest and therefore he is doing it. But I am putting to him the challenge of the founder of his Party, to keep all politicians honest. Let us keep ourselves credible by at least referring to the self-interest that we have, not just dress it up in a learned, academic and considering speech. I join with all Senator Chaney has said and again put it to the Democrats that they reconsider this view and support the more accurate and more descriptive title that the Opposition has moved as an amendment in this debate. Senator MACKLIN(Queensland)(4.37) —The points made by Senator Chaney and Senator Teague a moment ago I think are based on a supposition that ignores-it is probably quite reasonable to do so-the second reading speeches, since they were made so long ago. On the second reading speech, I made a simple point, particularly with regard to this item, and that was that we will be supporting the item in this chamber to go to the people. We have always supported items. Indeed, I remember that we supported one of the former Senator Peter Rae of the Liberal Party in relation to which I expressed the view that if it were to go to the people we would campaign against it because we did not believe that it would be an advantage to have the Constitution changed in the way it proposed. In the debate here last week I made a claim-I do not wish to go over that again because I think the Chair would probably call me to order-with regard to citizens' initiative and the ability of more questions going to the people. As it so happens, I indicated no position on behalf of the Party with regard to this item in the campaign. That was quite deliberate. I informed the House that my Party would be campaigning for the second, third and fourth questions vigorously and that at the moment, we would not be campaigning, in terms of the Party's position, for or against the first item. I gave a number of reasons for this in my speech in the second reading debate. Senator Teague also went on to make other points which are probably of a little more hypothetical nature about whether I might succeed in Queensland if I stood at the next election. I was originally elected to this place as one out of five. Senator Teague suggested that I would not be re-elected. I am confident of my position. Although some honourable senators may not think it is a very good commendation, there has been a small monograph done by Malcolm Mackerras on the possible outcome of the next election which says that I will get elected in Queensland. Senator Boswell —You start to worry when Mackerras says you are right. You're gone. Senator MACKLIN —I thought that Senator Boswell would make those very unkind and uncharitable comments about Malcolm Mackerras's predictions. That is why I premised my remarks in the way I did. I am quite happy to fight the next election under either the current Constitution or the new one and I will win as I have in the last four elections that I have fought. Senator Chaney —But you don't deny that the change actually advantages you? Senator MACKLIN —I have never denied that. We have quite openly said that the change will strengthen the Senate because it will ensure that the Australian Democrats will hold the balance of power here. That will mean that neither the Government nor the Opposition will control this chamber. We believe that will enable this chamber to operate, as it has since 1981, as a House of review. We think that is beneficial for the country and for the Parliament. I made no bones about that in the speech I made in the second reading debate on this legislation when I had an hour to expand those particular points. I stand by those comments. I do not believe that it is the structural nature of this chamber that makes it a genuine House of review; it is the numbers in this chamber that make it a House of review. There may be some dispute about that, but that is the position I hold and I am quite happy to debate that proposition. Obviously this particular proposition would be in our interests. However, our Party's policy is-and we intend to continue to campaign strongly on this matter-for a fixed term Parliament. This is not such a proposal, hence public support for this proposal would be contrary to our belief that ultimately we need a fixed term Parliament. I express regret that such a proposal was not put. We were the only people in this place to vote for that proposition last time around. I think it was 1983 when we finally got a vote on this exercise when the Government withdrew its own Bill on that matter that it introduced soon after it was elected. Ultimately, we will go down that track in this country. It is the type of thing that the people of this country want. However, that matter is not before us at this time. People should have the right to cast a judgment on this proposition and that is why we will support the proposition going to the people. Senator TEAGUE(South Australia)(4.43) —The Australian Democrats have given an undertaking not to campaign on question No. 1 when the referenda are put. The CHAIRMAN —Order! The matter before the Chair is the title of this Bill. Senator TEAGUE —I am addressing the title. I am very aware of it because it is material to all that has been said in the last several speeches. The title in the form that is proposed by the Government is not to be changed, with the support of the Democrats, because they have indicated a preference for the description in terms of one of the results of this matter being passed. Their policy on the term of the Senate, enunciated by Senator Macklin, is for a fixed term. This is contrary to that policy. Also, Democrat policy is to maximise the ability of the people themselves to decide. The Democrats have indicated that they will not campaign on this question. That means that there will be no how-to-vote cards distributed by the Democrats in the referendum campaign that will ensue. Senator HARRADINE(Tasmania)(4.44) —I would like very briefly to comment on Senator Macklin's suggestion that there are two philosophies of thought-I perhaps would have used the term `two schools' of thought. I do not know whether there are schools of thought-perhaps that point has just come up in the last day or two or the last hour or two-as to how the question is to be put to the people. Senator Macklin says that one school of thought is that the question that is to be put to the people should refer to the results of what will occur if the referendum is adopted and the Constitution is altered. The other school of thought, he says, is one which puts to the people the alterations that will take place to the Constitution. We have two questions: one is the outcome, as the honourable senator said, and one is the alteration. What does the Constitution say about that? There is only one question to be put to the people and that surely is: What is the alteration to the Constitution to be? It should not be: What will be the outcome or outcomes? It should be: What are the changes to section 128? Senator CHANEY(Western Australia-Leader of the Opposition)(4.46) —I am sorry for moving in before my colleague Senator Macklin who was also rising to speak, but I wanted him to have an opportunity to think about the matter I wish to raise. Senator Macklin, who was speaking on behalf of the Australian Democrats a few minutes ago, said that he would not answer abuse. I have no quarrel with a senator who says that he will not answer abuse, but I am a little sorry that he chose not to answer one of the points of substance that I put to him. I hope he would not suggest that my remarks were in any way abusive of his position, although I challenge the correctness of it. The fundamental point which Senator Macklin made in explaining his Party's position was to say that the Government has chosen to enumerate the result. The point I made in response to him was that the Government has chosen not to do that at all. The Government has chosen to enumerate a result. I note Senator Harradine's contribution to the debate with which I respectfully agree. I think the obligation on the Government, is to put before the people in the long title what changes are, in fact, being made to the Constitution. But Senator Macklin did not address at all the proposition that I put to him, that there are a series of results which flow from this particular change. One of the results, as I reminded him in my earlier comment, was that one of the distinguishing characteristics of this chamber is to be changed. I would appreciate it if Senator Macklin would think further on that point because I think there is a great risk that we are witnessing a bit of sophistry here-sophistry, I am sure, is a term well known to Senator Macklin-and I invite him to consider the point of substance that was put to him and to respond to it. Question put: That the amendment (Senator Chaney's) be agreed to. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 31 Noes . . . . . . . . . . . 35 —— Majority . . . . . . . . . 4 —— Alston, R. K. R. McGauran, J. J.Archer, B. R. Messner, A. J.Bishop, B. K. Newman, J. M.Bjelke-Petersen, F. I. Panizza, J. H.Boswell, R. L. D. Parer, W. R.Calvert, P. H. Patterson, K. C. L.Chaney, F. M. Puplick, C. J. G.Chapman, H. G. P. Reid, M. E.Crichton-Browne, N. A. Sheil, G.Durack, P. D. Short, J. R.Hamer, D. J. Stone, J. O.Harradine, B. Teague, B. C.Hill, R. M. Vanstone, A. E.Knowles, S. C. (Teller) Walters, M. S.Lewis, A. W. R. Watson, J. O. W.MacGibon, D. J. Aulich, T. G. Haines, J.Beahan, M. E. Jenkins, J. A.Black, J. R. McKiernan, J. P.Burns, B. R. McLean, P. A.Button, J. N. McMullan, R. F.Childs, B. K. Macklin, M. R.Coates, J. Maguire, G. R. (Teller)Collins, R. L. Morris, J. J.Colston, M. A. Powell, J. F.Cook, P. F. S. Ray, RobertCooney, B. C. Richardson, G. F.Coulter, J. R. Sanders, N. K.Crowley, R. A. Schacht, C. C.Devereux, J. R. Sibraa, K. W.Devlin, A. R. Tate, M. C.Foreman, D. J. Walsh, P. A.Gietzelt, A. T. Zakharov, A. O.Giles, P. J. Brownhill, D. G. C. Jones, G. N.Baume, Michael Reynolds, M.Baume, Peter Bolkus, N.Tambling, G. E. J. Evans, Gareth Question so resolved in the negative. Question put: That the Title be agreed to. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 35 Noes . . . . . . . . . . . 31 —— Majority . . . . . . . . . 4 —— Aulich, T. G. Haines, J.Beahan, M. E. Jenkins, J. A.Black, J. R. McKiernan, J. P. (Teller)Burns, B. R. McLean, P. A.Button, J. N. McMullan, R. F.Childs, B. K. Macklin, M. J.Coates, J. Maguire, G. R.Collins, R. L. Morris, J. J.Colston, M. A. Powell, J. F.Cook, P. F. S. Ray, RobertCooney, B. C. Richardson, G. F.Coulter, J. R. Sanders, N. K.Crowley, R. A. Schacht, C. C.Devereux, J. R. Sibraa, K. W.Devlin, A. R. Tate, M. C.Foreman, D. J. Walsh, P. A.Gietzelt, A. T. ZakharovGiles, P. J. Alston, R. K. R. MacGibbon, D. J.Archer, B. R. Messner, A. J.Bishop, B. K. Newman, J. M.Bjelke-Petersen, F. I. Panizza, J. H.Boswell, R. L. D. Parer, W. R.Calvert, P. H. Patterson, K. C. L.Chaney, F. M. Puplick, C. J. G.Chapman, H. G. P. Reid, M. E.Crichton-Browne, N. A. Sheil, G.Durack, P. D. Short, J. R.Hamer, D. J. Stone, J. O.Harradine, B. Teague, B. C.Hill, R. M. Vanstone, A. E.Knowles, S. C. (Teller) Walters, M. S.Lewis, A. W. R. Watson, J. O. W.McGauran, J. J. Jones, G. N. Brownhill, D. G. C.Reynolds, M. Baume, MichaelBolkus, N. Baume, PeterEvans, Gareth Tambling, G. E. J. Question so resolved in the affirmative. Bill reported without amendment; report adopted. Ordered that the third reading of the Bill be an Order of the Day for a later hour of the day. Senator COLLINS(Northern Territory) —Pursuant to my notice of intention given earlier today, I now withdraw Business of the Senate Notice of Motion No. 1 standing in my name for the disallowance of the public rental housing assistance program. Senator HILL(South Australia) —I give notice that, on the next day of sitting, I shall move: That the following matter be referred to the Standing Committee on Legal and Constitutional Affairs, to be considered in conjunction with that Committee's reference on the feasibility of a national identification scheme: (a) the taxation file numbering scheme announced by the Treasurer in the May Economic Statement, and, in particular, whether the scheme is likely to improve the efficiency of the taxation system and to eliminate fraud and abuses in the taxation and social security systems; and (b) the possibility of that scheme developing into a de facto national identification card system with unacceptable impositions being made upon privacy and civil liberties. Senator GARETH EVANS(Victoria-Minister for Transport and Communications) —by leave-Throughout the course of the last debate there were constant references to quotations which I am alleged to have made back in 1978 on the nature of the Senate. I have forborne from participating in the debate in the certain knowledge that it would generate a further cycle of unproductive comment, but let me just read for the record what was actually said. The first was in the Canberra Times of 2 July 1978, in which an article written by me appeared under a title-not of my own writing, but of the sub-editor's-which is the quote that has been used so often today: `The way to abolish the Senate, or at least muzzle it, is to white-ant it from within'. I make it clear for the record that I said no such thing and wrote no such thing. The closest thing to it which appears in the article is a sentence in the following terms-and remember the time at which it was written and the context of the Australian Labor Party policy that existed at that time: If one believes, as I do, along with all good Labor men and women true, that the Senate ought to be abolished, or at the very least deprived of its capacity to destroy properly elected governments, there is surely no better forum in which to promote these insidious heresies than the institution itself. That is a very different proposition-- Senator Chaney —Exactly the same thing; just a fancy way. Senator GARETH EVANS —It is more than a fancy way, Senator Chaney; it is a very different concept, which I hope the honourable senator would have the honesty and decency at least to acknowledge. It is not a matter of insidious white-anting; it is the open use of a forum for political debate, and that is something that is entirely reasonable and it is a cause which I have adopted. The other point that I wish to make is about my maiden speech, which has been constantly the subject on about 25 different occasions throughout the course of the last debate, in which again sentiments of that kind were attributed to me. In fact, there was no point during that speech, although I said a number of other things about the Senate, when I could have been taken to be urging its abolition. What I did say was to the contrary, because I was indicating that I thought the Senate had a constructive role to play. I will repeat, if I may, the relevant passage. I stated: I take this opportunity to place on record my unshakable determination-along with that of my Labor Party colleagues-to ensure that the constitutional outrages of 1974 and 1975 are never again repeated. If this House does have a useful role to play in the legislative process, it does not lie in menacing or threatening a properly elected government with the power of life or death based on some spurious conception of the Senate's position as a defender of States' rights or federalism or the more recently fashionable notion that it is a last resort defender of the national interest against the Huns and Visigoths of the lower House. Rather it lies in the careful and effective scrutiny, analysis, testing and review of the legislative and executive initiatives of the government of the day, and occasionally in the initiation of reforming legislative proposals of its own. There are ample precedents in recent years for constructive and helpful work of this kind. I look forward to participating in it and wish only that the Senate would get on with it. That is the end of that quotation. That is the substance of what I said about the role of the Senate on that occasion. I repeat the sentiment on this occasion that I wish the Senate would get on with the task of doing something constructive, but I think it is important and legitimate to place that on the record. May I express the hope that there are no further grotesque misrepresentations during the referendum campaign of the kind that we have heard so often during this debate. Senator CHANEY(Western Australia-Leader of the Opposition) —by leave-I do not want to debate the matters that have just been raised by way of personal explanation by the Minister for Transport and Communications (Senator Gareth Evans). I think we ought to get on with the careful analysis, testing and scrutiny of the legislation that is before us. I move: That the Senate take note of the personal explanation. Because I wish to go back to doing the task that the Minister has outlined as ours, namely, the careful analysis, testing and scrutiny of legislation, I seek leave to continue my remarks later. Leave granted; debate adjourned. Debate resumed from 19 May, on motion by Senator Tate: That the Bill be now read a second time. Question put. The Senate divided. (The President-Senator the Hon. Kerry Sibraa) Ayes . . . . . . . . . . . 35 Noes . . . . . . . . . . . 29 —— Majority . . . . . . . . . 6 —— Aulich, T. G. Haines, J.Beahan, M. E. Harradine, B.Black, J. R. Jenkins, J. A.Burns, B. R. McKiernan, J. P. (Teller)Button, J. N. McLean, P. A.Childs, B. K. McMullan, R. F.Coates, J. Macklin, M. J.Collins, R. L. Morris, J. J.Cook, P. F. S. Powell, J. F.Cooney, B. C. Ray, RobertCoulter, J. R. Reynolds, M.Crowley, R. A. Sanders, N. K.Devereux, J. R. Schacht, C. C.Devlin, A. R. Sibraa, K. W.Evans, Gareth Tate, M. C.Foreman, D. J. Walsh, P. A.Gietzelt, A. T. Zakharov, A. O.Giles, P. J. Alston, R. K. R. Messner, A. J.Archer, B. R. Newman, J. M.Bishop, B. K. Panizza, J. H.Bjelke-Petersen, F. I. Parer, W. R.Boswell, R. L. D. Patterson, K. C. L.Calvert, P. H. Puplick, C. J. G.Chapman, H. G. P. Reid, M. E.Crichton-Browne, N. A. Sheil, G.Durack, P. D. Short, J. R.Hamer, D. J. Stone, J. O.Hill, R. M. Teague, B. C.Knowles, S. C. (Teller) Vanstone, A. E.Lewis, A. W. R. Walters, M. S.McGauran, J. J. Watson, J. O. W.MacGibbon, D. J. Jones, G. N. Brownhill, D. G. C.Maguire, G. R. Baume, MichaelBolkus, N. Baume, PeterColston, M. A. Tambling, G. E. J.Richardson, G. F. Chaney, F. M. Question so resolved in the affirmative. Bill read a second time. The Bill. Senator CHANEY(Western Australia-Leader of the Opposition)(5.12) —The Constitution Alteration (Local Government) Bill 1988 is an extremely short Bill the purpose of which is to alter the Constitution to enable the recognition of local government. What is proposed to be added to the Constitution is a new section 119a which reads: Each State shall provide for the establishment and continuance of a system of local government, with local government bodies elected in accordance with the laws of the State and empowered to administer, and to make by-laws for, their respective areas in accordance with the laws of the State. What I seek from the Minister for Justice (Senator Tate) in the committee stage of debate on this Bill is some explanation of the meaning of this proposal. I mention that because although, of course, there are provisions in the Standing Orders which state that we are not entitled to ask a Minister for a legal opinion during Question Time, I assume that we are not restricted from doing so in this debate. I think that there are significant differences of view as to just what the words in the clause mean. I suspect that the true position is that none of us really knows what the words mean in a final constitutional sense because who knows what the High Court of Australia will make of it? I say that without wishing to be disrespectful of the High Court. Indeed, no disrespect is intended. The reality is that constitutional provisions notoriously are interpreted in widely different ways. In the debate on the next Bill, the Constitution Alteration (Rights and Freedoms) Bill 1988, which picks up matters such as trial by jury and freedom of religion and so on, I suspect that honourable senators will refer to the quite divergent views of High Court judges on what the meanings of those provisions are. For example, I was struck by the fact that Mr Justice Murphy and Mr Justice Deane proposed a view of the trial by jury provision which was fundamentally different from the view of the majority of judges. That is relevant to this debate only as a reminder to us, that what is said in the Constitution can be interpreted in widely different ways. I must confess to some difficulty in respect of what the Government is putting forward here. On the face of it, I suggest to the Minister that the constitutional amendment is in fact adding nothing other than an oral reference to local government. It is adding nothing to the present situation, and nothing in the way of guarantees. What the words specifically say is that: Each State shall provide for the establishment and continuance of a system of local government . . . I think it would be common ground within the Committee that there is a system of local government within each State, but that there is not a suggestion in the clause that there should be anything new or different. Perhaps before I go on to quote further from that clause I should say that there is, of course, a significant difference between what is contained in this clause and what has been recommended in respect of the inclusion of local government in the Constitution. For example, there was a recommendation that there should be a reference to the `establishment and continuance of local government', whereas the Government has chosen to insert the expression `a system of local government'. This suggests that what is being required is merely some system, not the preservation of any particular local government body. Indeed, from the explanatory memorandum that would appear to be what the Government is seeking to achieve. Clause 119a goes on to refer to, `local government bodies elected in accordance with the laws of the State'. This is in accordance with the status quo but perhaps it means that there has to be local government throughout the State. The requirement of elected local bodies is one that is well known in all States. Clause 119a further states, `empowered to administer, and to make by-laws for, their respective areas in accordance with the laws of the State'. Those words, as I say, appear to add very little or indeed nothing to the status quo, unless it could be argued that the requirement that local government bodies be elected in accordance with the laws of the State means that we cannot have a local government body which is not elected. On the face of it, that is an implication one might seek to draw from those words because when we think about it we say, `Hang on, there are local government bodies which are not elected bodies, but are appointed bodies'. For example, I think the City of Sydney has enjoyed an appointed administration for some time. Early this afternoon I heard in conversation reference to certain Victorian municipalities that were being administered on a short term basis and so on. Senator Walters —Melbourne. Senator CHANEY —My colleague Senator Walters has referred to Melbourne. Therefore, it seems to me that one's antennae start to move about and one asks, `What is really meant here?' I find it very hard to connect what is written in the Bill with what is contained in the explanatory memorandum. I am fascinated because it seems to me that what the Government is saying is, `We believe the High Court will take a certain view of these words'. However, it seems to me that the meaning is not apparent on the face of the words at all. I ask the Minister as part of my comments on the committee stage of the Bill whether he is suggesting that the High Court is bound in any way by the explanatory notes. It would be my understanding that it is not, any more than the High Court is bound by or is to be guided or assisted by the debate in this chamber on this particular measure. The amendment to the, I think, Acts Interpretation Act which enables the courts to refer to Hansard does not as I understand it apply to constitutional amendments. Therefore, we have a situation where what has been said in this place and, as I understand it, what has been said in the explanatory notes are not of themselves, or should not be, of assistance to the High Court, although none of us in our ignorance knows what is of assistance to judges. However, as I understand it, in a formal legal sense-I seek the Minister's clarification on this-what is written in the explanatory notes and what is said in the debate, whether it is in the Minister's second reading speech or in this committee stage of the debate are not matters which can be adverted to in legal argument and taken as a guide for the Court. What is said in the explanatory note is: 3. The Constitutional obligation will be to establish and continue a system of local government. The words `establish', `continue' and `system' are underlined. I think that the systems have all been established so I do not know what the Government means by that. There is a system established in every State. The word `continue' is underlined. Paragraph 3 of the explanatory memorandum states: Nor is it intended to preclude laws providing for the dismissal of a local council in appropriate circumstances, subject to a new local government body being elected within a reasonable period. What is the basis of that statement? The suggestion in the explanatory memorandum is that in some way this amendment will place some new obligation upon the administering authority, namely, the government of the particular State, if it dismisses a local council because it thinks the council is a bunch of either incompetents or crooks, to allow it, after what is called in the explanatory memorandum `a reasonable period' to re-establish democratically elected local government. I am genuinely puzzled because that seems to be no more than a guess at what this might be held to mean and quite frankly it is not the meaning I would attribute to it. If the Government has in mind appointing me to the High Court I should warn it that in my view there is no obligation on the face of these words for the Government to do anything with respect to any particular area of a State. I am fortified in that view because paragraph 4 of the explanatory memorandum says that the section: is not intended to oblige a State to establish local government bodies throughout the whole of the State. I do not think the Minister can have it both ways. I really do not think that the Minister can say in paragraph 4 of the explanatory memorandum that what he has proposed to write into the Constitution about local government does not oblige a State government to have local government in substantial areas. I presume the Minister is trying to cover the situation that used to apply in South Australia, where some of the remoter areas were not covered by local government. I am assisted by the nodding of the Temporary Chairman, Senator Teague, who is from the State of South Australia. The Government is apparently saying that there is no obligation under this section to establish and continue local government throughout the State. Yet, it is suggesting that when a State exercising its lawful functions terminates an elected local authority for the sorts of reasons I have outlined-because of administrative incompetence, dishonesty or whatever-there is some new constitutional obligation to have a new local government body elected within a reasonable period. I am sorry if there are some words in this which have totally escaped my attention, but the gravamen of my point in this committee debate is simply that once again the Government has been either careless or not straight. It has either carelessly made this mistake, produced these inconsistent propositions, or is in fact trying to say to local government, `Look, these words mean what we think you want them to mean'. In other words, this is a particularly shoddy piece of work. I hope it is not the Minister's work. In the Minister's defence, I would be grateful if he could actually identify who is responsible for it. I hope it was not the Deputy Prime Minister, the Hon. Lionel Bowen, because as I understand it he actually made quite a good living in legal practice for a while and I do not think the person who wrote this explanatory memorandum would. Perhaps he could tell us what it means. How does he make compatible what is in paragraph 3 and 4 with what I see in the explanatory memorandum? I see those points as totally incompatible. How in the world does the Minister spell out either conclusion in the words that he is proposing to insert into the Constitution? I will close my comments on this matter by simply saying to the Minister that the more one looks at this the more the political nature of the exercise being undertaken is apparent. I do not pretend that in the short term it is not an effective political operation, because a lot of people in local government have worked very hard over a very long period because they have liked the idea of constitutional recognition. I acknowledge that. Just as with the identity card, once starts a bit behind the eight ball. In this case the Government, as usual, has been clever but I suspect too clever by half. The Minister has given, on the face of it, an unsustainable explanation or explanations of what the Government is doing. On the other hand, I issue a warning, and I would be happy to have the Minister's comment on it, that the Minister cannot predict, Mr Bowen cannot predict and certainly Mr Hawke, whose knowledge of the law is infinitesimal, cannot predict what the High Court will make of all of this. I am struck by the fact that Deane and Murphy, who spoke of a particular constitutional provision, said that it had to mean something. We may well find the High Court at some stage puzzling over this, saying that this has to mean something. I doubt that it will have much time to ponder it in any long-term sense because I note that an old graduate of the Western Australian law school, Mr George Winterton, had a few things to say about this. He suggested that the moment a local authority is dismissed by a State government it will rush off to the High Court for a declarational order to restrain the State. This is an intensely practical matter I have raised with the Minister. I commend to the Minister's attention the view of Mr George Winterton that we should leave local government alone in this context and that the referendum proposals should be rejected. Senator SHORT(Victoria)(5.27) —I want to support very strongly the comments that Senator Chaney just made. I will not go over the same points that he raised, other than to start my remarks by reading again the actual clause that is being proposed for insertion into the Constitution and which is the essence of this Constitution Alteration (Local Government) Bill. It reads: A Bill for an Act to alter the Constitution to recognise local government. The Government is proposing to insert into the Constitution a new section which reads as follows: Each State shall provide for the establishment and continuance of a system of local government, with local government bodies elected in accordance with the laws of the State and empowered to administer, and to make by-laws for, their respective areas in accordance with the laws of the State. It seems that that clause raises more questions than it answers. Certainly it does not appear to go anywhere towards meeting the needs and requests of local government itself set out in the submissions that the Australian Council of Local Government Associations made in 1986 and 1987 to the Australian Constitutional Commission. In oral evidence given to the Constitutional Commission last year, the Council advocated: the inclusion in the Federal Constitution of a separate Chapter concerned with Local Government, which would provide for its existence, its exercise of certain powers, and protection of a council from dismissal except for just cause. It also proposed a redistribution of powers between the three levels of government. So that was what the Australian Council of Local Government Associations put to the Constitutional Commission last year. It had also put earlier submissions to that Commission seeking a stronger recognition of local government in the Constitution. It is worth noting, as I said, that the wording of the proposed amendment to the Constitution does not touch substantively the needs or the wishes of local government. For example, the word `Commonwealth' is not even mentioned in the clause. It provides for no recognition of local government by the Commonwealth Government. There is no reference to revenue sharing arrangements, which of course are the very essence of what local government has been looking for in terms of legalised and constitutional recognition. It all gets back in the end to revenue sharing and funding. There is no reference at all to the ability of local government to deal directly with the Federal government, there is no guarantee against wrongful dismissal of a local council, there is no guarantee against forced amalgamations of local governments, and there is no substantive recognition of any of the other matters of which local government is seeking recognition. Indeed, there is not even in the clause a definition of local government itself. The constitutional lawyers, as has been said before and will certainly be said again-Senator Chaney made this point-will have a field day with this proposal if it is passed. The concept, the potential definition of local government, is very wide indeed. For example, would it encompass the regional Aboriginal councils that are to be set up under the new arrangements in that area, if they come to pass? The thing that worries me most, or worries me equally with those other concerns, is that this clause, through its very wording, seems to me to entrench local government even more firmly as a creature of the States, a shadow from which it has been struggling to emerge for years. Every aspect of the wording of this proposal gives the role to the States. It says: Each State shall provide for the establishment . . . of a system of local government, with local government bodies elected in accordance with the laws of the State and empowered to administer, and make by-laws for, their respective areas in accordance with the laws of the State. If ever local government wanted to have its subservient role vis-a-vis State governments recognised in full, the wording it has been lumbered with in this constitutional amendment proposal certainly does that. It is worth pointing out also that the Powers Advisory Committee, an advisory committee to the Constitutional Commission, recommended that local government should not be accorded recognition in the Constitution, and it gave various reasons for that. I shall repeat just some of them. The first states: There is some uncertainty as to how the High Court would interpret a provision in the form proposed by the Constitutional convention in Brisbane. That was back in 1985, and I will not go into all the details of that. As to the second reason: Support for the proposals came almost exclusively from Local Government and appeared mainly to be based on a perceived need to increase the status of Local Government. That is not a reason, in my view, for necessarily opposing the proposal but it is an argument, if local government is to be recognised, for it to be done in a meaningful way and not in a way which has been described, I think quite rightly, as tokenism. Another reason given by the Powers Advisory Committee states: The implications of a new Chapter on Local Government has not been canvassed in sufficient depth. The Committee also claimed: Any entrenchment of the existence of Local Government should take place in State Constitutions under which it exists. In the last decade, four of the six States have recognised local government in their State Constitutions. Victoria did it in 1979, as did Western Australia; South Australia did so in 1980, and New South Wales in 1986. So local government is recognised constitutionally in four of the six States. Tasmania and Queensland are the only States not to have accepted the invitation to the States to recognise local government in their Constitutions, as suggested by the Constitutional Convention in 1976. It is obvious that the Liberal and National parties are copping a lot of criticism from local government for their attitude to this proposal, but I believe that at the end of the day it will be the policies of the respective parties that form the basis for the judgment by local government on the will to recognise local government and to do for it what local government needs to have done. If that is the case, it will be very interesting to compare the records of the two major parties in this area. It was a Liberal-National government-the Fraser Government-that first gave local government a fixed funding arrangement through personal income tax sharing back in the 1970s. It was the same Fraser Government that provided for local government representation on the States grants commissions and which provided for distribution of the personal income tax share. It was the Fraser Government, and Mr Ralph Hunt while Minister for Transport in that Government, that introduced the bicentennial road funding levy of 2c a litre to provide more road funds for local government. It was the Fraser Government that set up a forum for local government in the form of the Advisory Council for Inter-governmental Relations and gave local government an equal and recognised share as the legitimate and very important third tier of government. They are the types of measures and the record that the Liberal and National parties can point to in their attitudes towards local government. They have been very positive, very tangible and real benefits accorded to local government when compared with Labor's record on local government. In 1986 it disbanded the only forum that was available to local government in the form of the Advisory Council for Inter-government Relations; it has pegged back the 2 per cent personal income tax sharing formula to a less favourable formula, with conditions to its payment related to population, to the detriment of need; it has reduced road funding in real terms over the Hawke Government's period in office by more than 25 per cent in real terms; and it has flawed the amendment to the constitutional proposal now before honourable senators, for example, by specifically excluding Australian territories. The referendum question that is to be put, looked at in essence, contains nothing of substance, nothing of benefit to local government. Indeed, on quite reasonable interpretations of that amendment one could say that, far from advancing the cause of local government, the proposition contained in the Bill before us sets back the cause of local government. It does not give local government any of the beneficial recognition it needs. It entrenches local government constitutionally as a creature of the States. Those are issues that local government itself has fought strenuously against. I would put it to the Minister in the chamber, the Minister for Justice (Senator Tate), that if the Government is serious about according due, proper and meaningful recognition to local government, surely it could not have come up with the amendment that it has proposed. I ask the Minister, when he is responding to these comments from this side of the House, if he could explain to me and to the chamber the advantages that he sees and that the Government sees in this proposal so far as local government is concerned, because any reading of the proposal makes it very difficult to see those advantages. As I said, I think it is something which is going to prove highly counterproductive to the cause of local government. Senator POWELL(Victoria)(5.41) —I want to make a short contribution to this committee stage debate on this legislation, particularly as this debate unfolds, on a couple of arguments which are being put by the Opposition, which I believe need to be addressed and on which I think it is important to make clear the position of the Australian Democrats. I first focus on a couple of comments made thus far in the debate, one by Senator Chaney in his conclusion, that we should leave local government alone, and another by Senator Short, that there is nothing of benefit to local government in this Constitutional Alteration (Local Government) Bill 1988. I believe those comments, amongst others, indicate clearly, as I said in my contribution during the second reading stage, a certain arrogance on behalf of politicians of one sphere and level of government with regard to those in another sphere. I say that only because we are here dealing with a Bill which is designed to change the Constitution of this country, to include in that Constitution for the first time the third tier of government in this country, local government. If one speaks to people who are involved in that tier, as opposed to people in this chamber engaged in this debate, one gets a totally different argument. I think it is important that in this Committee debate that voice is heard. I do not believe that we, as Federal politicians elected by the people, should presume to speak in the sort of way that the Opposition is presuming to speak for those people elected at a different tier of government, even though we may be paid for what we do and even though we may have to turn up at our properly constituted meetings perhaps more often than they do. I do not think, nor do the rest of the Australian Democrats, that gives us any particular right to speak on behalf of our colleagues at the local government level. I think it is important in this debate that they are represented so that their voice can be heard. One of the issues raised in this debate is that this is mere tokenism. Senator Short referred to the fact that this does not really do very much for local government. If I may present the voice of those people who are in local government, the Municipal Association of Victoria had something to say about that argument put by the Opposition in this debate, when in a Press release which it issued in the past week or so, in response to claims of tokenism, it said: Some Liberals have told us privately that they support the notion of constitutional recognition for local government but they think people will be confused if they advocate a `no' vote for some questions and a `yes' vote for others. Now that's real tokenism. And it's an insult to the collective intelligence of local communities. A bit of respect for the rights of local communities is not too much to expect and I would urge the Opposition to change its stance on this issue. Senator Walters —Mr Chairman, I raise a point of order. What Senator Powell is saying is not correct and is indeed an insult to our Party. I do not think Senator Powell should read media comments and take them as gospel. What she has just said is not true. The CHAIRMAN —Order! That is not a point of order. Senator Walters may speak in the debate if she wishes. Senator POWELL —For the benefit of the chamber I will clarify what I was reading from. It is not a media comment but a document written by the Municipal Association of Victoria. I do not know whether it appeared in the media, but I certainly believe, since it appears on its letterhead, and it was sent to me directly by the Association, it does express its viewpoint. If it is an insult to anybody, I am sure that needs to be taken up with the body concerned. I would like to pick up another couple of points which have already been made and which I am sure members of the National Party of Australia will refer to when speaking in the committee debate. One is that this move to change the Constitution is centralising power in the hands of the Federal Government. That was certainly the claim made by Mr Cobb in the other place and by Mr Sinclair, the Leader of the National Party. Yet I noted just a few minutes ago in this debate that Senator Short said the reverse, that this will entrench more power in the States. I would suggest that we are already seeing a debate for the No case, if you like, by the Opposition which is at the very least somewhat confused. I think it will be fascinating to see it unfold. Going back to the claim that there is nothing of benefit in this for local government, I think it is important to point out what local government itself says is of benefit on this Bill. We cannot put all of the comments on the record right now, but certainly local government does not agree that recognition will centralise power. On the contrary, it believes that it will strengthen the system of decentralised community based government. Senator Alston —What about your views rather than theirs? That is just pandering to interest groups. Senator POWELL —I welcome the question about our view. I made it clear in the debate at the second reading stage that the Democrats' view is very strongly supportive of what local government wants. We have listened to local government and we are not ashamed to stand here today and have its voice heard in this committee stage. In fact, our view accords with the local government position. We have never at any stage of this debate said that this Bill is perfect, that this move is the ultimate move. But at the same time we believe that the Constitution of this country is a growing, developing document and should be. Therefore this kind of change, as long as it advances the cause and is supported, is worth pursuing. The local government people believe that the very act of recognition, which is pursued by this Bill and by the subsequent referendum, will mean that State and Federal bureaucrats and politicians will be more ready to consult with local government, and that is a very important issue. For those and all the other reasons which have already been stated by me on behalf of the Democrats in this debate, we very strongly support this legislation and the subsequent referendum. The CHAIRMAN —Order! Before I call the next speaker I would like to draw the Committee's attention to the way this debate is developing. This is not a debate on whether we wish to have this particular Bill, as that has already been determined at the second reading stage. What the Committee is supposed to be devoting its attention to is the working of the clauses of the Bill. The general philosophical principles and desirability of the Bill were determined at the second reading stage. Senator ALSTON(Victoria)(5.49) —I want to address the technical aspects of the Constitution Alteration (Local Government) Bill 1988, because I think it is very significant that the Constitutional Commission recommended a form of words which have not been adopted by the Government. It talked about local government bodies. There have been a vast array of suggestions as to an appropriate form of recognition advanced by various interest groups on behalf of local government. The one that the Government has finally hit upon is not one that has been the subject of those recommendations, but is merely a form of words lifted from the State Constitutions. That is very significant because, in reality, that is where the matter should reside. Currently, four States provide for a system of local government. Hopefully, two others will join them in the not too distant future. Senator Walters —Tasmania will join them. Senator ALSTON —Good; we are almost there. Senator McGauran —And Phillip Island. Senator Boswell —Queensland. Senator ALSTON —Phillip Island and Queensland are on the way. We have almost reached the stage where we can safely say that all the State governments provide for appropriate recognition of local government. That is the place for it to be granted, because it is only at that point that there is a capacity to make local adjustments and to decide whether local government is needed in certain areas, whether a dismissal needs to be followed by a period of appointment, followed by a form of re-election, and whether levels of funding should differ over the country. The reality is that if we go for a form of words such as those in the referendum proposal, we achieve precisely the opposite. That point was made by Sir John Moore's distribution of powers committee, the Advisory Council for Inter-government Relations and Dr Cheryl Saunders. They made the point that, once we provide for a recognition of local government, we inevitably encourage the High Court of Australia to provide an expansive interpretation-in other words, an interpretative vacuum into which the High Court would inevitably move. We would then find a national prescription being laid down by the High Court-not with any malintent, but simply because a form of words needs clarification. Of course, many local government bodies would seek just that. We would end up with a national prescription that would be quite inappropriate to reflect the variations that should and do apply across the nation. The local government movement does itself a gross disservice by settling, if it does, for the form of words that the Prime Minister (Mr Hawke) has proposed in the most cynical way. I note that in his speech yesterday to a local government congress he talked about a new and exciting era of local government flowing from what he described as significant constitutional change. That is hogwash. On one view, one can argue that that is a form of tokenism. I think that there is some substance to that in the sense that that is all that the Government intended. However, the matter which we must address much more seriously is the likely interpretation that will be placed on those words and the likely consequence that will flow. One cannot do better than to refer to a document which my colleague Shirley Walters circulated recently which points out that there are a number of ways in which local government will be disadvantaged by the proposal. It could well result in the lowest common denominator being imposed across the nation, which would not be in the best interests of local government. There would be no protection against dismissal. That is made clear by the wording in the explanatory memorandum, which recognises the right of a State to determine, having regard to the nature of a particular region and other relevant circumstances, that it would not be appropriate for a region to be administered by a local government body. That is not simply talking about areas that do not have local government currently. It would be just as appropriate to areas that currently have it. Again, I think that local government is deluded if it believes that this measure provides some form of safeguards. Indeed, only this afternoon, in talking to a prominent activist in the local government field, it was suggested to me that this recognition would provide an entree for local government to achieve attendance at meetings of the Australian Loan Council and State grants commissions. I do not think that that would follow. Indeed, the person I spoke to conceded that that was more a hope than any interpretation that one might place on the words. Again, I think it shows how one can be easily deluded. At the same time that the Government is offering what it no doubt sees as harmless words, it is reducing the amount of money available to local government, cutting back on road funding and hoping that local government will remain quiescent because it is being offered something. That something is, I think, a very poisoned chalice because it could well emerge that local government will rue the day if such an amendment came into force and where then the subject of interpretation by the High Court. It certainly would not protect against amalgamations. One has only to recall the furious political activity that ensued in Victoria when the Cain Government was stupid enough to attempt to force amalgamations down the throats of a number of shires and municipalities. There would be no protection at all under this general expression, nor indeed would there be protection in a number of other areas. That is where I think the real vice lies. It is clear that the Government would like to pretend that it is offering very significant protections, but the reality is that it is offering virtually nothing but uncertainty, which I think will be to the cost of local government. To the extent that it will make it harder to appoint administrators in the wake of incompetent or dishonest local government administrations, it will do the whole conduct of local government a disservice. Yet it has been suggested that, because there is provision for a system, somehow limits would be imposed that would require only a reasonable period to elapse between the dismissal of a council and the election of a replacement. I do not accept that for one moment. The Melbourne City Council was sacked and remained sacked I think for about 18 months. In another instance, the Sydney City Council had its services dispensed with for quite some time. Sunshine and Keilor councils similarly had their services terminated. There is no doubt that flexibility is very necessary. It would be fatuous to suggest simply that, having sacked one group of elected councillors, we must immediately elect another. Quite often what is needed is a breathing space in which the problems can be sorted out and in which others who might not be tainted by past irregularities can be encouraged to come forward. This would therefore, allow a much healthier form of local democracy to emerge. Yet local government seems to be deluded into thinking that, by having this constitutional referendum proposal carried, it would somehow be afforded protection of that sort. To the extent that it did, I think it would be unhelpful and, to the extent that it does not, it does not alter the status quo. One can say, again, that the form of words would give rise to very serious concerns. As Senator Short outlined not so long ago, we have a very proud record in this regard. One has only to go through the history of the late 1970s and early 1980s to see all that we did for local government. All those things had a common thread to them-that is, they provided security of office and underpinned the very important work that is undertaken by local government. The last thing that anyone on this side of the chamber would want to do is diminish the role of local government. Yet the Government is pretending that, by proposing this form of words, it will be able to distract attention from its own lack of financial and other commitment to local government. That is a short-sighted tragedy. It is clear that we have a record of which we should be proud. The Prime Minister and others who would run around with canards such as, `The Opposition's position is one of expediency; it has simply chosen to vote no because it is convenient in some unexplained manner' is in total ignorance of the facts, which are that this decision was taken by the Liberal and National parties on the basis of principle and after a careful consideration of the issues involved, bearing in mind the consequences for the system of government which would thereby emerge, the consequences that would be placed on both Federal and State governments and the very real needs of local government. In my judgment, it is not sufficient to accede to something simply because someone asks for it. It seemed to be the thrust of Senator Powell's contribution that, because local government wanted it, it had to be a good thing. The Government of this country would be in chaos if we responded to interest groups simply by caving in to their requests. Senator Powell —This is not an interest group; this is a legitimate tier of government. Senator ALSTON —That is absolutely so. We do not for one moment seek to denigrate its importance or role. But we have an obligation, as members of this chamber, to analyse the referendum proposal in a way that does not seem to have been undertaken by the Australian Democrats. Senator Powell —What about local government? They analysed it. Senator ALSTON —I am not sure that that is so. I understand that many people's minds were well and truly made up before the referendum question was announced. Many people who wrote to us-and no doubt to Senator Powell and others-made it perfectly clear that, whatever form of words emerged, they would be enthusiastically in favour of the proposal. I think that that sort of myopia does a grave disservice to the role that we should carry out as legislators. A small example, I suppose, is the Metropolitan Municipal Association, which wrote to me, amongst others. It said that it would strongly support the proposal which might emerge. It stated: According to recent press reports, Constitutional Recognition . . . may be the subject of a referendum . . . This Association strongly supports this proposal . . . It was in favour of the proposal before it knew what it stated. It continued: amongst other considerations, it would allow Local Government to participate more fully in the design, delivery and co-ordination of public policies and programmes. The present system of `symbolic recognition' is considered most inadequate . . . One cannot have it both ways. The Association wants meaningful involvement in the processes of government. That is precisely what we would offer. We believe that local government's needs are met, not by empty rhetoric but by being given sufficient funds to carry out its obligations, by assistance and involvement in the various decision-making processes and not by empty phrases casually thrown around by a cynical Prime Minister. If we address the actual terms of the proposal, we see that it contains words that have not been proposed anywhere else; that open up a whole series of problems that will ultimately require interpretation by the High Court; that will do no great service to local government; and that will not in any way be compatible with the structure of the Constitution as it is presently formed. What local government needs, deserves and must have is a comprehensive regime of protections provided at State level by those governments which are best placed to make regular adjustments to meet those real needs. Hopefully, that will occur in the not too distant future. The progress of local government will not be assisted in any way by the constitutional referendum proposal. Senator BJELKE-PETERSEN(Queensland)(6.03) —I would like to make a short contribution to the committee stage of the Constitution Alteration (Local Government) Bill 1988. In doing so, I think I can say that we all recognise and appreciate the work of local government. We have always said that there are three tiers of government: the Federal tier-the Commonwealth; State government; and local government. I believe that local government is close to people and their problems. I also feel that those in local government are not terribly well paid for the work that they do. They provide a real service to the community. I, like many other people, have received letters from various councils complaining bitterly that the Opposition has decided to oppose this referendum question on local government. The Randwick Council was one council that wrote to me. I presume that it wrote to every senator and Federal member about the same matter. The President of the Local Government Association, Councillor Peter Kyle, said the same thing. What is being proposed is the insertion of a new section 119a in the Constitution to the effect that each State shall provide for the establishment and continuance of a system of local government, with local government bodies elected in accordance with the laws of the State and empowered to administer and make by-laws for their respective areas in accordance with the laws of the State. No mention is made in that of any move by the Commonwealth to recognise local government, except, of course, in the referendum question. We should remember that point. I believe that all State governments support local government. Already, four State governments have recognised local government in their constitutions. I understand from Senator Walters and Senator Boswell that the Tasmanian and Queensland governments are working towards that end. I do not think that this proposal that we are examining tonight is of any benefit to local government. We must be very careful to ensure that it is not the start of a move to centralise power in Canberra. Of course, during the time of Mr Whitlam's Government there was great talk about the abolition of the States. I would not like to think that this legislation represented the beginning of that process. Senator Boswell —This might be a start in that direction. Senator BJELKE-PETERSEN —It might be a start in that direction. My concern is that the proposed amendment could be open to an unduly wide interpretation. It has been very broadly defined. Recent decisions of the High Court dealing with external affairs powers do nothing to allay any fears that we might have in this regard. I wrote to Randwick Council that actions speak louder than words. Our record on this side of the chamber is very good. Senator Short gave a very good exposition of what had been done by our parties when we were in government to assist local government in a very practical way. Local government ought to recognise that that is what we have done. We have been very anxious to help local government in a practical way. It was a Liberal-National Party government that first gave local government a fixed funding arrangement through personal income tax sharing. Local governments want to know how much money they will get from tax sharing. It saddens me that the amount given to local government under this arrangement has fallen from 2 per cent, when our parties were in government, to 1.66 per cent. I do not believe that this Government has provided local government with very much, a part from words. I think about the road funding crisis. Not enough money is made available to local government for roads. Every senator would have had many letters from councils in this regard. As I said earlier, I appreciate local governments. I believe that State governments appreciate them, too. We must be careful that this Bill does not herald the reintroduction of regionalism that was so favoured by Mr Whitlam. Funding arrangements could force amalgamations. Local government should think about some of these matters. If we are to recognise local government, as Senator Short said, we want to do so in a meaningful way. I have contributed to this debate to say that actions speak louder than words. The proposal contained in this Bill says things about local governments but will not do anything for them. I do not think that there is any real need for the Bill, and we will vote against it. Senator CALVERT(Tasmania)(6.08) —I, like Senator Bjelke-Petersen, will be brief. I support the question that the Minister has already been asked: Why did the Government change the recommendation of the Constitutional Commission? The $6m Constitutional Commission recommended that a certain form of words be contained in the proposal. The Government changed it to `a system of local government'. It used the word `State' twice. Senator Short in his speech implied why that was done, as did Senator Chaney. The reason, of course, is that this enshrinement of local government in the Federal Constitution will only make the power of the States stronger. It will enshrine their rights to hire and fire at will. If we are to believe the explanatory memorandum that accompanies the Constitution Alteration (Local Government) Bill 1988, they would not only be able to hire and fire at will, but would also be able to act in accordance with paragraph 4 of the explanatory memorandum, which reads: Section 119a is not intended to oblige a State to establish local government bodies throughout the whole of the State. A State would be free to determine that, having regard to the nature of a particular region and other relevant circumstances, it would not be appropriate for the region to be administered by a local government body. I listened with interest to what Senator Powell had to say. I took exception to her comment that we on this side of the chamber were presuming to speak on behalf of local government but were not qualified to do so. I inform Senator Powell that, to my knowledge, there are between 30 and 40 former members of local government involved in this side of politics. I was in local government until March of this year. In my 12 years in local government I spent four years as warden. In fact, my senior secretary is a member of a local government council. So if anybody is entitled to talk on local government it is those on this side of the chamber. Thanks to my very sympathetic Whip I spent a couple of hours at the local government conference this morning to get a feel of what is going on. Unfortunately, local government believes-this was put to me-that Federal constitutional recognition is a start. As a former member of local government and one who is very sympathetic to local government, as far as I am concerned it is not a start, it is a finish of local government. Senator Stone —They've had their recognition. Senator CALVERT —It has its recognition and that is the finish of it. We have a conjuring trick from the Minister for Local Government (Senator Reynolds) and the Prime Minister (Mr Hawke) saying how good they are to local government. I have seen Prime Minister Hawke working in Tasmania. He came down and addressed some of our local government members at a cricket ground that I was involved with. He made a lot of promises and said how much he loved local government and that it has always been sweet to his heart. He said a few bleating words to our warden and then waltzed off. The Minister for Justice was also there on that day. A couple of weeks later we received a letter to say that unfortunately the Prime Minister could not help with further funds for the oval. So much for the soft spot in his heart for local government! Local government has believed for years with a great amount of feeling that it should be recognised. The situation has become so bad that I think local government almost feels as if it is a quest for the Holy Grail. I would liken it to someone waiting for a bus: after waiting all day all of a sudden a bus comes along and the person grabs it-the first one. Local government is hopping on Senator Reynolds's bus but unfortunately it is heading down the wrong road. When local government gets down the road far enough and wakes up and sees what is going on it will find-- Senator Powell —I think you are really insulting local government. Senator CALVERT —I am not insulting it. When the thinking people in local government come to set their budgets in June and July and have to front their ratepayers with 10, 15 and 20 per cent increases in rates, what will they say? Will they say, `It is not our fault. We have got constitutional recognition'? What is really happening is that while this Government is waving its magic wand and making believe that it really believes in local government, it is ripping the money off it hand over fist. Every grants commission around Australia, apart from one, has pointed out that local government has received reduced funds. We have seen the great reductions in road funds. The other day Senator Reynolds said, `Next year we are not going to reduce road funds to local government. We're taking special notice of that. We are going to give them the same moneys they had last year. But we are going to reduce the money for the States'. People should not to be so stupid as to think that it will not be passed on. I have been in local government long enough to know that everything ends up at local government. That is where the buck stops if we have a buck. That is the way it goes. Senator Colston —You were going to be brief. Senator CALVERT —I will be. I have just one other query for the Minister. No-one has commented on this point yet. We are to presume that the measures set out in explanatory memoranda will come into being because of the Acts Interpretation Act, but I would like to ask the Minister whether this would apply to the Constitution and not to Acts of Parliament. It has been put to me that the Acts Interpretation Act applies only to Acts of Parliament and not to the Constitution. If that is the case, and it is seen in that way, the wording of the Bill will stand alone. What happens if it does stand alone? We would have this meaningless system of local government elected in accordance with the laws of the State and empowered to administer and to make by-laws for its respective areas in accordance with the laws of the State. That is what we will have, that is what local government will have and that will be the end of it. The High Court of Australia and everybody else will be hamstrung because the explanatory memoranda will not count for anything. I would like the Minister to assure me that the High Court will not see it in that way and that the Acts Interpretation Act will be able to be used along with the Bill in question. If it is not, the legislation really does sell out local government entirely. With these words I will allow my colleague from Tasmania to continue. Senator BOSWELL(Queensland)(6.16) —Madam Temporary Chairman-- Senator Short —He is an odd looking Tasmanian. Senator BOSWELL —I am certainly not a senator for Tasmania but I always support the Tasmanian Liberals because they speak sense in this Parliament. I have no problem in associating myself with their remarks. What we are debating tonight poses this question to all of us here: What is a system of local government? Senator Chaney, an eminent barrister, posed that question. There is another senator here who is a prominent solicitor. A number of such people do not have the slightest idea what the wording means. So how will the people out there who will vote on this proposal understand the question? With a great deal of difficulty. If the barristers and solicitors in this Parliament cannot understand what a system of local government means and how it will be interpreted by the High Court of Australia, it will be very difficult for the average person in the street to make an objective judgment on that. I am concerned that local government has always been a product of State governments. If we vote for this Constitution Alteration (Local Government) Bill I am not entirely convinced that we will not be handing over the power of the local governments in the Federal system of government. I have recently been to the western areas of Queensland and have spoken to a number of local shire councils. I had no difficulty whatsoever in convincing the chairpersons of the shires that they are on a very dangerous course. I have acceptance of my argument. I have asked them: `If local government is recognised by the Federal Government what course will be taken and what will happen if the Federal Government wants to amalgamate smaller shires as a system of local government?'. Local government will have no power to object; it will have no State government to come to its aid. The divisions could possibly be equal in Queensland local government. There are a number of smaller shire councils which have large town divisions but smaller country divisions. I tell them that the Labor Government wants one vote one value for the State and Federal systems of government. It will probably try to form local government divisions into equal voting proportions so there will be-- Senator Crichton-Browne —They will do it by funding. Senator BOSWELL —It will do it somehow but there will possibly be a thousand votes in a town and three or four hundred votes out in the country divisions. The present system will go. I am also concerned because in Queensland we have 31 Aboriginal and island councils that have local government status. The High Court could well give an interpretation that the Aboriginal communities, if they are recognised under the Australian Constitution as a system of government, are the responsibility of the Federal Government. After what Mr Hand has done to the Aboriginal and Islander communities they will run a mile from any further involvement in the Federal system of government. Mr Hand has just sacked eight people from the Board of the Aboriginal Development Commission because they would not do what he required them to do. They are not enamoured of Mr Hand to such an extent that they will be further involved in the federal system of government. Who would have thought that two little words under section 51 of the Constitution could have usurped the power of all local and State governments in the World Heritage area? I warn all local governments in Queensland, which are always worried about the centralisation of power in Canberra and about the erosion of State rights, that they could be heading down exactly that track aiding and abetting the Federal Government. It is possible that any words that are added to the Constitution will lend themselves to interpretation by the High Court. We have seen this in regard to the World Heritage area under the external powers treaty. This Government has taken over the power of 12 to 15 local governments in the tropical wetlands of north Queensland as well as taking over the power of the Queensland elected State government. All these things can happen and have happened. They have happened before because of an interpretation by the High Court. Who knows what the High Court of Australia will be made up of in another 10 or 15 years? I suppose this Bill will go through with the help of the Australian Democrats, who have lost all credibility tonight. They should hang their heads in shame. They have proved that they are the running dogs of the Labor Party. They had the opportunity tonight to put a good, honest, open question to the people of Australia, but they made a deal with the Government to cement themselves in this place on about 3 per cent of the vote. I have absolutely no respect now for the Democrats. I did have some respect when their former leader was in this House. He tried to keep them on the straight and narrow. But they have demeaned themselves and are now just an attachment to the Labor Party. People who are considering supporting the Democrats would be far better off supporting the Labor Party. At least they would know what it is doing. Two or three years ago Senator Vigor, of the Australian Democrats, proposed a system of proportional representation for the local government of the Australian Capital Territory (ACT). That proposal was rejected by the Government and it failed. Now a deal has been done between the Government and the Democrats. The Government will support a system of proportional representation for the ACT. Why will the Government support it? It will support the proposal because it will probably give the Democrats a voice in local government in the ACT. Why has the Government suddenly changed its direction since this proposal was made 12 or 18 months ago? It is becoming common in this place for deals to be made between the Democrats and the Government. It is a waste of a vote to vote for the Democrats. That vote would be better placed supporting the Labor Party. At least we know where it stands. It is issuing the legislation; the Democrats are joining the Government. I ask honourable senators on this side of the chamber: How many times have the Democrats voted with the Opposition in this session of Parliament? It is probably only three of four times in the last six months. Senator Panizza —Once. Senator BOSWELL —Senator Panizza says that the Democrats have supported the Opposition on one occasion in the last six or eight sitting weeks. That is how the Democrats are supposed to be keeping us honest. There has been one deal after another. The Democrats have lost all credibility tonight. I repeat: I warn local government shires that they are getting into something that they do not understand. They are getting into bed with a Federal government that wants to restrict them, that wants one vote one value, and that will cause the divisions to have equal strength, which will absolutely wreck local government in rural Queensland. They are leaving themselves wide open for a High Court challenge on an interpretation that could lead to amalgamations, regionalisations and everything that Queensland and every other local government in Australia want to avoid at any price. Senator STONE(Queensland-Leader of the National Party of Australia)(6.27) —The extraordinary thing about the Constitution Alteration (Local Government) Bill 1988, which is before us, is its slenderness. What it says, apart from the short title, is that it proposes to insert a new section in the Constitution. The proposed new section reads: Each State shall provide for the establishment and continuance of a system of local government . . . With the exception of two States, that is already in being. Only Queensland and Tasmania do not have such a system. Tasmania, I gather, is in the course of introducing one. So that proposal does nothing for four of the States. It goes on: with local government bodies elected in accordance with the laws of the State and empowered to administer, and to make by-laws for, their respective areas in accordance with the laws of the State. That is the full ambit of what is proposed to be inserted in the Constitution at the forthcoming referendum on this matter. One is led to ask: Is that all? In view of the high expectations which have been aroused in local government circles by all the Government's false promises and posturing on this matter, one is bound to say that this Bill is a fraud. It is true that all four of the referendum Bills before the Parliament are, to a greater or lesser degree, frauds, but this is the most palpable fraud that I, at any rate, have seen for a very long time. I sit here every day looking at the Government side of the chamber, so I have some experience in seeing the processes of fraud. Local governments, of course, have not fully appreciated yet the hoax which the Federal Government is in the process of perpetrating upon them. They are running around the country expressing gratitude, love and admiration for the Australian Labor Party for recognising them. It is true that they are being recognised and they are being given the back of the Government's hand in the process. I can only say that if the local government spokesman gets satisfaction out of that, I am glad on their account, but, I have to say, it indicates a considerable lack of comprehension on their part as to what is actually being done for them. As several speakers have already indicated-I, therefore, will not elaborate on the same point again-this puts the whole area of local government into the hands of the High Court of Australia, into the hands of legal interpretation by non-elected persons. I have some other comments to make on the Bill. I support entirely what Senator Bjelke-Petersen and Senator Boswell said. Sitting suspended from 6.30 to 8 p.m. Senator STONE —Before the dinner suspension I was in the process of commenting very briefly on what appear to be a couple of the major misconceptions which the Government appears to have been successful in generating in the minds of some of our local authority representatives throughout Australia in the aftermath of its decision to introduce the Bill we are currently discussing. I will mention a couple of those misconceptions. One was voiced only the other day by the lord mayor of one of our largest local authorities, a person for whom I have the utmost respect but who quite clearly simply had not read the Bill or anything else associated with the Bill. That lord mayor voiced the opinion that once this referendum was passed, as the person in question trusted it would be, it would be impossible thereafter for State governments to dismiss any local authority or behave in a similar way. I have since had occasion to point out to the person concerned that that is a total misconception. Not only is it a misconception of a general kind in so far as the Bill does nothing to hobble or in any way inhibit the powers of State governments in that regard, but the second reading speech on this Bill in the House of Representatives by the Attorney-General (Mr Lionel Bowen)-and, indeed, the speech of the Minister in this place-points out: The provision is not intended to prevent State governments from providing for the amalgamation of local government councils or for their dismissal on grounds of incompetence or malpractice. It goes on: It is expected, however, that the States will need to make provision for the election of new councils within a reasonable time after any such dismissal. That is the case today, so there is no change there. I cite that simply as an example of the kind of misconception that apparently is quite prevalent among our local authority representatives as to what this Bill means. The truth is that the Bill means nothing at all other than that it `recognises' the existence of local governments within the Commonwealth Constitution-much good may it do them. It will not do them any good at all; that is the point. As Senator Alston, who I think spoke very well on this Bill late this afternoon, pointed out, at a meeting of local authority representatives he had been to today in this city, a number of people had expressed the quite mistaken understanding that if this referendum should be passed it would in some undefined way give local government access to major financial forums such as the Premiers Conference or Loan Council meetings, at which they could hope to influence the amounts of moneys to be provided either by way of grants or borrowing authorities to local authorities throughout the country. That is totally untrue. The Bill will affect that position in no way. The Commonwealth Government, if it wished, today could invite representatives of local authorities to attend in some observer capacity either the Premiers Conference or-perhaps somewhat less clearly, but nevertheless it would be within its power-Local Council meetings as observers. But this Government does not choose to, previous governments of different complexions did not choose to, and I suspect that in future governments similarly will not choose to because they will take the view that these meetings are for discussions between the Commonwealth Government and State governments. Senator Crichton-Browne —The first and second tiers. Senator STONE —The first and second tiers, as Senator Crichton-Browne quite rightly observes. Whether that be appropriate or inappropriate is not the point of these remarks. The point of these remarks is simply to point out-I hope to put this to rest at least in the mind of anybody who may be listening-that this Bill will do nothing whatsoever to open the doors of those sanctums to local authority representatives. If we are in fact speaking just briefly about financial concerns of local authorities and whether this referendum will do anything to ease those concerns, let me just very quickly make a point which I think was made by one or two earlier speakers, namely, that this Government has shown its total hypocrisy. On the one hand it is weeping crocodile tears about the need to recognise local authorities with the Bill which we are presently debating. On the other hand, in last Wednesday night's economic statement by the Treasurer (Mr Keating) the Government announced a cut of $20m in the funds to be provided in 1988-89 by the Commonwealth Government to local authorities. In addition, in the same economic statement, the Treasurer announced that the Government would, next financial year, cut the funds the Commonwealth provides for road funding in the States by $50m. In its usual weasel word manner, the Australian Labor Party has sought to protect itself against the charge that this will also mean a cut in road funding for local authorities by saying that it will preserve unchanged the funding for local authorities within the total of such funding to be provided in 1988-89 and that therefore this is not a cut in local authority road funding. That is, of course, a deceitful argument because while technically that will be the effect of what the Government has decided, in practice what will undoubtedly happen-it is as plain as the nose on the face of anybody who has ever had experience in these matters-is that the State governments will then cut the amounts of funds which they make available to local authorities for roads, not because they have any particular desire to hurt local authorities, but because they will be $50m worse off, and they will take some of that $50m out of the hide of local authorities as well as out of our own hides. On both counts, this Government has shown its total hypocrisy in its attitude or its asserted concern for the position and problems of local authorities. What it has done is actually to show by its actions-that is to say, by its revenue reducing actions-what it thinks of them while, at the same time, uttering a lot of fine words about recognising them. Senator PETER BAUME(New South Wales)(8.08) —The Committee is considering the Constitution Alteration (Local Government) Bill 1988 which seeks to add a new section 119a to the Constitution which refers to local government. My colleagues have already advanced very good reasons for the position which my Party is taking and which the coalition parties are taking. I do not wish to rehearse those arguments. My intervention will be mercifully brief. My concern for local government really relates to the people who devote their time and their efforts to serving with local government and, particularly, to some of the women in Australia who have chosen to become active in politics, starting through local government service. After the recent Liberal Party Federal Council meeting, we had the Second National Liberal Women's Conference on the Monday following the Federal Council. At that conference two papers were presented, one by the Hon. Rosemary Varty, MLC, entitled Women and Politics-`A State Perspective', and the other by Councillor Wendy Spry, the mayor of Prahran in Melbourne, entitled Women and Politics-A Local Government Perspective. In those two papers these two elected representatives set down some of the problems which women face in serving at local and State level the citizens of their municipalities and of their States. They are significant contributions to the debate. I seek leave of the Senate to table the documents in order to make them available to all honourable senators. Leave granted. Senator CRICHTON-BROWNE(Western Australia)(8.10) —Before I discuss the alleged benefits the Constitution Alteration (Local Government) Bill 1988 will provide to local government perhaps I might for a moment examine whether local government has a place at all in the Australian Constitution. As we examine that proposition perhaps we need to remind ourselves as senators of the object of the Federal Constitution in the first place. The Constitution is a document drafted and created by the representatives of the various original States. Its intention was to give unto the Federal Parliament the power to make laws which may properly be described as relevant to matters of an interstate nature or an international nature, or at least certainly having those characteristics. The Constitution purposely excluded matters which were exclusively of an intrastate nature-matters which can and are best managed at a State level. Of course, that meant all matters which could be dealt with without effect to those outside the borders of each State or matters which would not impinge upon those of other States. Those matters are found within State legislation and they are found within the State constitutions. Of course, that separation of powers did not flow from some arbitrary or capricious decision of our founding fathers but, of course, from a fundamental reality that the laws affecting individuals are fairest in their design and in their application when they are created and are administered as close to the people they affect as is realistically practical. Of course, the natural gravitation of power through its devolution to those upon whom it touches is, of course, democracy in its finest form and in its pristine state. Australia is one of those few democracies in which we have laws made for the good government of the people who are removed 3,000 miles at least in the one land mass from the source of that power. The very size of Australia is the cause of our system of federation. As I say, the Constitution provides quite specific enumerated powers to the Commonwealth. Of course, the balance of all other powers is provided to the States. There are 128 clauses in the Constitution which by and large set out in precise terms those powers which were intended to be given unto the Commonwealth from those colonial States at the time of Federation. Under that criterion alone, local government ought not to have a place in our Federal Constitution. It ought quite properly to be found in State constitutions. Of course, in the case of Western Australia it is. Its Constitution deliberately provides: 52. (1) The Legislature shall maintain a system of local governing bodies elected and constituted in such manner as the Legislature may from time to time provide. (2) Each elected local governing body shall have such powers as the Legislature may from time to time provide being such powers as the Legislature considers necessary for the better government of the area in respect of which the body is constituted. There is a further section 53 that gives some added meat to those first two proposals. Mr Temporary Chairman, I seek leave to incorporate in Hansard the history of local government in Western Australia. This is a brief resume to be found in the 1985 Constitutional Convention debate on local government by Standing Committee A. Senator Tate —How many pages is it? Senator CRICHTON-BROWNE —It is very brief; it is not a page, but a paragraph or so. Leave granted. The document read as follows- (2) HISTORICAL DEVELOPMENT 2.1 Prior to the 1840's the English Colonial government had tried to institute Local Government systems based on the English pattern. These very early attempts at local government in the colony were generally unsuccessful-the reasons being many and varied. The nature of the people and the conditions in the colony contributed to their lack of success as did the imposition of rates on unwilling citizens; a scarcity of members of the leisured class with time to spare on local matters; a sparsely populated and isolated countryside; a lack of local and social unity of common interests and the often imposition of schemes which were, in retrospect, too ambitious. 2.2 As communities became more settled, the people gradually recognized the need for a system of Local Government and began to agitate for its implementation. For example, in 1838, the colony of Western Australia legislated to establish town trusts in response to the determination by rural settlers to control and upgrade roads. In 1841, the residents or Melbourne were clamouring for more services than could be provided by public companies and thus in 1842, the municipality of Melbourne was incorporated. By approximately the 1850's municipal councils had been established in all the States' major cities. 2.3 The 1850's saw the growth of inland towns servicing a large rural sector and the consequential development of comprehensive municipal systems. In the colonies of Victoria, Western Australia and South Australia these systems were generally permissive. As responsible government was not established in Victoria until 1856, South Australia until 1857 and Western Australia until 1890, it is clear that the extension of a Local Government system and establishment of local government bodies did not await the advent of responsible government, and proceeded largely independent of the political developments at the colonial level. 2.4 Van Dieman's Land, New South Wales and Queensland achieved comprehensive permission municipal systems after the establishment of responsible government. Van Dieman's Land achieved an extensive comprehensive permissive local government system by the implementation of the Rural Municipalities Act of 1858. The voluntary system of incorporation in New South Wales and Queensland resulted in very few municipal incorporations. It appears that services to a community in an unincorporated area were provided by self-help groups, government special purpose boards, and advisory non-statutory road trusts and committees. Thus, in these communities, local Parliamentarians were heavily relied upon to organize the funding of services and facilities. This system was not entirely satisfactory and by the 1870's there were moves for the creation of comprehensive mandatory municipal systems. 2.5 Mandatory systems had been imposed by legislation in all States by the early 1900's. In the States of Victoria, Western Australia and South Australia the transition from a permissive to a mandatory system was of less significance than in the other three States, as systems of Local Government had already been well-established (with the exception of more arid and sparsely populated areas) in these States. 2.6 In the last 80 years Local Government systems have continued to develop and adapt to the needs of the communities within each State. The Sub-Committee notes that there are differences in the municipal systems of each State and that differences are also apparent between municipal bodies within each State. The Sub-Committee considers that these differences are indicative of the adaptability and flexibility of Local Government throughout Australia today. 2.7 In 1945, at the Local Government Summer Schools the problems facing local government at that time were examined, and the Sub-Committee notes with considerable interest the fact that at one of these Summer Schools, Professor F. A. Bland advocated two alternative suggestions for a Local Government Charter. (See The Shire and Municipal Record, 1945 at p. 246). This Charter is now of historical interest only, having been drafted in a different time and to solve different problems. However the Sub-Committee considers that, as a general principle, the recognition of Local Government as a full partner with State and Federal Governments in the work of public administration was of importance from as long ago as 1945, when consideration was being given to formal recognition of Local Government. Senator CRICHTON-BROWNE —That history clearly demonstrates that local government in Australia has, of course, responded to the needs and requirements of individual communities in individual geographical areas within the various States. In the case of Western Australia, the first proposals for local government were made when the colonial powers introduced legislation in 1838 for the purpose of setting up town trusts as a result of calls by the locals to have some influence, some say and some power over local roads. This is why they were originally called road boards in Western Australia. I do not know what they were called on the eastern seaboard. I think it was in either 1842 or 1848 that the colony of Victoria was next to set up a local government system. Local government evolved in a very successful and logical way, as one can imagine, as a result of its relationship with State governments. I again quote what Standing Committee A said about the evolutionary system: Traditionally, Local Government has provided limited community services. Today, the services of Local Government to its community are many and varied, with each local authority developing services according to the needs of its communities. This evolution in the services provided has often been initiated from within the community, and Local Government has proved itself to be adaptable by adjusting to these community needs and expectations. This has been subject of course, to the availability of finances. Furthermore, the State governments have often delegated functions and duties to Local Government. Local Government has generally co-operated with the State Government and is often the best system in which certain services can be established, maintained and developed. That is, of course, why it is called local government. Clearly this system of integration of local geographic concerns, when people had common interests and certain matters had common effects upon them, worked so well because it was so flexible and was able to develop and grow with the assistance of the various State governments. Its great virtue was the flexibility that was and is provided to local government by State governments. It just requires a sensitive and sensible State government to amend its legislation where necessary to accommodate the wishes and the aspirations of the local people to ensure that that sensitivity and flexibility is there. Once we enshrine in the Constitution the role of local government-in this case, of course, it is simply a statement of principle-that flexibility is lost. When that happens we develop a rigid system that cannot be changed or adapted; it is just there. The local groups lose their capacity to reflect their aspirations or have them reflected in legislation somewhere else. To place something of meaning in the Constitution in respect of local government is to destroy local government. It is called local government because it is government by the local people. Once the Government puts local government into the Constitution and the laws are made by a Parliament 3,000 miles away, we can hardly suggest that that government is sensitive to the needs of local people. We have before us a statement of principle. Anybody who has the slightest care for the Constitution, as Senator Tate has, never mind understanding, will know that the Australian Constitution was never intended to be, never was, is not and never will be a collection of statements of principle. Its provisions are all justiciable. Under those circumstances the statement of principle that the Government is seeking to put into the Constitution will also be justiciable and will be subject to the interpretation of the High Court. Given that the recognition of local government in this Bill is no more than a statement of principle, who can guess, as Senator Chaney asked earlier, what might be the interpretation, and how wide might be the interpretation, by the High Court? In these circumstances, as Senator Tate will no doubt agree and nod in consent, this statement of principle with respect to local government sits as a total oddity among all the other statements in the Constitution. It is the only statement of principle, yet it sits there, in stark neon, totally incongruous with the Constitution. Having said that, the words of this amendment, at least as one can read them, give no specific powers and no specific directions. For those who care for the Constitution, their inclusion just makes a mockery of the Constitution. It adds nothing to the Constitution. It simply undermines its intention. One asks oneself: Is there anything that this Labor Party will not corrupt? Is there anything that it will not seek to trample under foot? Is there anything that it will not seek to tear up? On this occasion it is simply seeking to prostitute the Constitution with a superficial appeal to the leaders of local government. Finally, in respect of the appropriateness of the recognition of local government in the Federal Constitution, I remind honourable senators of what the Law Council of Australia has to say. The committee of the Law Council which is examining this matter is not of the view that the Commonwealth Constitution should deal with the position of local government. It quite properly points out that the Commonwealth Constitution is concerned with the sharing of powers between the national Government and the State governments, the first tier and the second tier of government. That is the total and absolute purpose of the Constitution. It resulted from a coming together of the colonies of Australia to write down the powers which they were giving unto a Federal Parliament and those which they would retain for themselves. Now, in this odd and incongruous way, the Government wishes to insert this rather obscene and absurd passage which does nothing for the Constitution except to belittle it and which adds nothing to local government. Not to understand that is to be blissfully unaware of the very essence of the Constitution or to abuse the purposes for which it is intended. As the Law Council of Australia says, the basis of the Constitution is a compact between the various State governments which originally federated to form it. The Commonwealth cannot be overlooked. At the end of the day, if what is proposed to be put into the Constitution now is to have moment, if it is to mean anything, it will simply mean the subjugation of the States, the bypassing of the States, taking us back to the Whitlam era. He wanted to have regions of local government and the abolition of the States, as he said publicly, as this Prime Minister (Mr Hawke) has said, as Bill Hayden has said and as the former Leader of the Australian Democrats has said. As I remember, the abolition of the States is still in the Australian Democrats' platform. It advocates a direct relationship-fiscal and financial-legally binding, between the Commonwealth Government and local government. The Law Council is of the view that a declaration of principles relating to the regulation of local government authorities in Australia ought not to be included in the Federal Constitution. Senator SHEIL(Queensland)(8.25) —I have often thought that it is not who you are that matters or even what you say, but it is what you do that matters. When it comes to what this Federal Government has done to local government, I think local government should take heed of that. With the $20m cut from local government in the May economic statement, the $50m that has been taken from it for road funding, the 25 per cent reduction in petrol levy funds that were due to local government, amounting to some millions and millions of dollars, and about the same reduction in the personal income tax sharing will local government, one can see just how much respect this Federal Government has for local government in Australia. The fact that the Government is trying to dress up these referenda proposals with something that may appear attractive to local government-which feels, I suppose, like an unrequited lover in Australia because it is being so badly treated-just shows how gullible local government can be. I understand that the Local Government Association of Australia is mounting a considerable campaign-and raising an enormous amount of money to fight it-to support the doctor that made it sick. It is supporting this referendum proposal, which to my mind is a complete anachronism when it should actually be fighting this Federal Government. The proposal seeks to force two States, Queensland and Tasmania, to recognise local government in their Constitutions. I do not think the people of New South Wales, Victoria, South Australia and Western Australia want to be involved in forcing their will on the people of Queensland and Tasmania. That is a vital issue. It is up to Queenslanders and Tasmanians to decide whether they are happy with their system of local government. The proposal envisages the implementation of a system of local government in the States. The Government has not defined what it means by `local government'. It has not defined what it means by the `recognition' of local government, and it has not defined what it means by a `system' of local government. Undoubtedly, all of those three terms will have to be defined. Where will they be defined? That will be done in the High Court of Australia, because after the passage of this legislation, once it becomes law, undoubtedly the whole thing will have to be decided in a court of law. I have not got all that much confidence in the current High Court to come to a decision that I think would be in accord with the wishes of the people of Australia. Should this proposal become law, local government will be mentioned in the Constitution. By that very fact the Federal Government will have a responsibility for local government, and then it will want that responsibility defined. No-one should think that the Federal Government does not want control of local government. Of course it does, and it wants to gain control of it in exactly the same way as it is gaining control of the administration of Aboriginal lands; in other words, it wants to implement a whole system of regional developments with all the strings tied to Canberra and bypassing State and local government. The whole proposal is fraught with enormous dangers for local government. I just hope that it will see the light and reject the proposal wholeheartedly. Senator TATE(Tasmania-Minister for Justice)(8.29) —The proposal before the chamber is to give its concurrence to a Bill for an Act to alter the Constitution to recognise local government. I do not think it is true to say, with Senator Stone, that it is nothing that recognition is granted. I believe it is very important that our basic document, which constitutes and in a sense celebrates the fact that we are fortunate to live in a democracy where elected representatives make the laws which govern our lives, contain a recognition of that tier of government which provides for many of the services and many of the facilities which are closest to the people in their everyday lives and habitations. The fact that the Constitution was, as Senator Crichton-Browne quite correctly pointed out, conceived as a Federal compact does not, I think, mean that it can deal only with those matters of relationship between the Commonwealth, in the sense of the national parliament and government, and the States, which were the former colonies. In view of the fact that this document deals with our basic structure as a democracy, it is quite consistent that it should deal with local government. Indeed, the measure provides for the recognition of local government in a way which, quite deliberately, does not set out to fetter State parliaments in their provision for the system of local government that might be appropriate to their State. It simply looks to the provision of a system of local government, with local government bodies elected in accordance with the laws of the State and empowered to administer and to make by-laws for their respective areas in accordance with the laws of the State. It was never our intention to fetter unduly the State parliaments in providing for that system of elected local government, but it should be a system of local government, of elected bodies. It is true that amalgamation, reorganisation and dismissal will continue to be provided for under State law. Obviously, at the end of the day it will be required that a system of bodies elected in accordance with the laws of a State should continue. I believe that that can be achieved and ought to be seen as a considerable advance in the constitutional arrangements of Australia. I think local government throughout Australia sees this recognition as important. I believe that its expectations were not so advanced or high-whatever the phrase might be-that it finds our proposal absolutely dashes its hopes. Indeed, I believe that it fulfils many of its hopes and expectations over many decades and ought to be supported. Senator WALTERS(Tasmania)(8.32) —The Minister has not answered any of the questions that were put to him. I now give him the opportunity to do so. Senator TATE(Tasmania-Minister for Justice)(8.32) —Many honourable senators have spoken. I regret to say that many made second reading-type comments and went on excursions into history and so on. What was asked for was an exposition of whether recognising local government in the Constitution in the way that is proposed in any way undermined the power of a State parliament or government to provide for the dismissal, for example, of a local authority that was acting in a corrupt or untoward way. Senator Burns —What about State governments? Senator TATE —We have said that the provision does not prevent the amalgamation or dismissal of particular local government bodies. That is the understanding that is set out in the second reading speech and the explanatory memorandum. Senator CHANEY(Western Australia-Leader of the Opposition)(8.34) —I have spoken only once at the committee stage of this debate. When I opened the committee's consideration of the Bill, I raised what appeared to be discrepancies in the interpretation of the clause in the explanatory notes and asked the Minister to address those matters. Quite frankly, I expect some response from him before we conclude our consideration of the Bill. If he does not intend to give us a response, I would appreciate knowing why. My questions raised the issues that we have raised generally on the referendums; namely, that we think there is an element of dishonesty in all of them. With respect to the first two, in common with the respected commentators that I have already quoted, we think that the questions being posed do not properly describe the changes to the Constitution which are being sought. With respect to this referendum on local government, I raised a series of legitimate queries about what the Government believes the change means and on what it bases that belief. It seems to me that there is a strong element of Alice in Wonderland in the explanatory memorandum-the words mean what the Government wants them to mean. Senator Crichton-Browne —They get curiouser and curiouser. Senator CHANEY —Yes. Certainly, they do not appear to me to mean what the explanatory memorandum states. I also asked the Minister what I thought was a fairly civil and reasonable question which was also raised in the debate-although I was not present, I heard the broadcast of the proceedings-by my colleague Senator Alston. He raised the status of the explanatory memorandum and the second reading speech with respect to interpretation. Whilst the Minister is tired, so are we, and we are likely to be much more tired if we do not get some reasonable response to these questions. I assume that his assistants have been making a note of the matters that have been raised. I would have thought that by now they would have given him some comment on them. I would like to know whether the Minister intends to respond. Senator TATE(Tasmania-Minister for Justice)(8.36) —In relation to the Acts Interpretation Act, it is my understanding that the Act clearly provides that the extrinsic aids, as we call them-the explanatory memorandum, the second reading speech, and so on-can be used in relation to the High Court's interpretation of an Act of this Parliament. In so far as we are in the process of passing an Act of this Parliament, the extrinsic aids mentioned can be used by the High Court in coming to its understanding of the provision which eventually finds its way into the Constitution if it is agreed to by the people at a referendum. What we are dealing with is an Act of the Parliament. That is what we are in the process of passing. Section 15ab of the Acts Interpretation Act refers to an Act of the Parliament, so that is what we are dealing with in relation to that matter. Senator CHANEY(Western Australia-Leader of the Opposition)(8.37) —That answers the narrow point, although I am not sure that somebody in the High Court or somewhere else will not say that that is wrong because he will not be looking at an Act, but at an amendment to the Constitution. I would not have thought that, if the Minister was arguing a case based on this section, if it was inserted in the Constitution, he would produce this Bill or this proposed Act. However, I do not think I can advance that matter at this stage. The Minister has given me what he believes to be the correct position. I raised other matters relating to the assertions in paragraphs 3 and 4 of the explanatory memorandum. I do not want to take up another quarter of an hour of the Committee's time to go over the ground. I questioned how the Minister was able to ascertain, from the words used in the actual amendment, that the section does not preclude a State from providing for amalgamation and does not preclude laws providing for dismissal. I accept all of that. It seems on the face of it that the words mean that the State law can say anything that it damn well likes. Paragraph 3 then states: . . . subject to a new local government body being elected within a reasonable period. On what basis does the Minister say that that has to be read into section 119a when paragraph 4 of the explanatory memorandum states: Section 119a is not intended to oblige a State to establish local government bodies throughout the whole of the State. I assume that that would mean that the local government area could be abolished and there would simply be no local government in the area. I think the paragraphs are inconsistent. Senator TATE(Tasmania-Minister for Justice)(8.39) —Paragraph 4 of the explanatory memorandum recognises that there may be circumstances in which a State parliament provided, in relation to a particular area, that there should be no elected local government body. That is not seen to be inconsistent, nevertheless, with having a system of elected local government in the State. In the terms of section 119a it is not required that the system of local government cover every square inch of the State. In relation to a particular local area it could well be that local government is not provided for in the sense of a situation where bodies elected to administer and make by-laws for that area are provided for. In the system provided for elected local government there are quite properly provisions for dismissal. If there is no replacement by an elected body within a period which allows for the corruption or the problem to be adequately dealt with by an administrator or by some other means, there would not be a system of elected local government bodies operating in the State: the displacement of the elected body would become a sort of permanent feature. Senator CHANEY(Western Australia-Leader of the Opposition)(8.41) —It seems to me that the Minister for Justice (Senator Tate) has simply repeated what is in the explanatory memorandum as a matter of his belief that the words in section 119a could be made to mean that. If we accept the Minister's word, it follows for example that, if, as governments have found it necessary to do in the States of New South Wales and Victoria, they dismiss the local authority for the capital city and appoint an administrator-something which has actually happened and is not some vague possibility-the Minister is suggesting that the words `require within some reasonable time', which do not appear in the section but presumably he expects that to be read into it by judicial interpretation, will mean that within some reasonable time there should be an election for a fresh elective body. On the other hand, I assume from that that if the State government looked at the situation and said, `We are sick of these chaps. They do not do it properly. We will not have any local government in the capital city. We will abolish local government in the capital city. We will continue to have local government on the north shore, and out in the eastern and western suburbs but we will remove it from the city itself', and in Melbourne the Government said the same thing, on the basis of the Minister's explanation that would be perfectly legitimate. So, the Constitution-- Senator Tate —Yes, Mr Chairman. Senator CHANEY —I thank the Minister for intervening and confirming that. It just points out that if the Minister is right-quite frankly I find the interpretation one which I cannot necessarily spell out of the words which are being put into the Constitution-the lovely assumption on the part of local government people, including those here this week, that they have some protection is absolute rubbish. The Minister has just confessed to us that whilst one cannot-according to him-under this constitutional provision appoint an administrator for an indefinite term, one can turn around and abolish the local government authority entirely and put in some other form of State administration that one might call State administration. It demonstrates that this is pretty much a sham. I do not want the Minister to think that I am being inconsistent in my criticisms. For the purpose of those comments I am simply adopting totally what he has now regurgitated in slightly different words from the explanatory memorandum. I simply say to him that if that is what it means it is absurd. It is an attempt to hoodwink 700 or 800 people. I bet Mr Hawke, when he addressed the meeting, did not say to the people, `You can be protected against this position unless they just abolish your local authority'. In any event, it seems to me that the Minister has not in any way attempted to relate his interpretation to what these words actually say. It seems to me that what these words actually say is no more than that we have to have some sort of system of local government with some bodies elected in accordance with the laws of the State. I think that places virtually no limitations on them. I have serious doubts about the point in the explanatory memorandum. I want to put this on the record in case the Minister is right in his other view that the High Court has to take notice of it. I want the High Court to know that, as far as this member of parliament is concerned, those words do not necessarily require that in the circumstances of the appointment of an administrator a new local government body should be elected within a reasonable period. It seems to me that the system of local government in a State might well consist in part of a system of elected local government bodies with other parts of the State having either no local government at all or some system of State appointed administration which might have to operate under some slightly different name. It seems an absolutely confused position. Senator DURACK(Western Australia)(8.46) —The Minister for Justice does not seem very anxious to reply to the very trenchant points that have been made by my colleague Senator Chaney. Perhaps he will get around to doing so later in this debate after he has cogitated on the matter. However, while he is doing so perhaps he could also cogitate on one or two other matters. There is an assumption in the explanatory memorandum, to which Senator Chaney has referred, that if a local government council has been dismissed that would require, after a reasonable time, a means of reappointing that council. The Minister has now conceded that he can get around that by abolishing the whole local government authority which is a very odd result. It adds one oddity to another. Let us assume that some right is created-and God knows how one could assume from this extraordinary collocation of words that there is a right. I would like the Minister to tell us very simply how a council, ex-council, a group of people or whoever-maybe there is a problem of standing as well-could enforce that right. Let us assume that we can get over those problems, and that we can get a declaration from the High Court of Australia about what happened in a particular State-most likely it would be New South Wales because of the proclivity of Labor governments in that State to sack democratically elected councils; Labor governments in New South Wales have a much worse record of sacking Labor councils-- Senator Bishop —A thing of the past. Senator DURACK —As Senator Bishop says, that will not happen with the change of government there. Let us assume that a council is sacked, that it is not reinstated and that the local authority continues in existence. I am just taking the Minister's assumptions because he has already said that he can get around it by abolishing local authorities. His explanatory memorandum says that we do not have to have local authorities in every part of a State. The Minister is being logical in that respect, strange as the result may be. How does a group of people in the area of a former local authority, or whoever or whatever, enforce the right? Can we get a mandatory injunction from the High Court to force a State parliament to change the laws of the State? Let us ponder that for a moment. A State parliament has full powers to legislate with respect to local government. Nothing in this constitutional amendment changes that. In fact, it enforces that. So the only way in which a local authority could be reinstated would be as a result of a change of State laws or State administration. Can the High Court direct a State parliament or a State government to change the laws? Let us assume that it does say, `You have to change the laws to conform with whatever this constitutional guarantee is'. Can the High Court then say in detail how those laws have to be changed? I am not sure whether the Minister has had experience in settling injunctions by courts. How does a court, even the High Court, word an injunction to a State authority in these matters? How is it done? When the State clearly is given wide discretion to determine the nature of the laws dealing with local government how does the High Court select its orders? That is what we come down to. Let us ponder the case of the High Court settling an order against a State which, in some extraordinary way, has been identified as breaching this constitutional guarantee. How does the High Court settle an order against a State government or State parliament? The order against a State government may be more easily determined, but how is an order against a State parliament determined? If it can be determined, how is that consistent with the recent High Court decision about the Queensland electricity commissioners, which has very clearly laid down limits on the powers of the High Court or the Federal Parliament in relation to laws directed specifically at a State government? It seems to me that there are insuperable legal problems involved in what the Minister and his colleagues are saying can be done. Even if they can overcome that and can frame orders to be made by the High Court against a State government, how are those orders enforced? What if a State parliament says, `To hell with the order of the High Court. We are not going to carry out the orders that we have been given to set up some local authority or reinstate some council'? That is what we are talking about-reinstating some council. What if the State government says, `To hell with it; we are not going to take notice of it', and the State parliament says, `We support that and we will not change our laws in any shape or form.'? How does the Commonwealth Government then enforce that order? What is the sanction? There is a very old authority in the common law of contract about specific performance of contracts of personal service. It was decided at common law that that was just not possible. It has been a basic principle of the law of specific performance that we cannot get specific performance of those laws in our court system. It seems to me that the Government is trying to say that in the area of government somehow or other the High Court can force State parliaments to carry out a law. Is the Government going to say that the High Court is going to write the law for the State? That is an extraordinary proposition. I suspect that the Government does not really intend to enforce this at all. This is an exercise in absolute eyewash and window-dressing and the Government knows it. It is just pulling the wool over the eyes of a lot of unsuspecting innocent people in local government who do not know it. Senator TATE(Tasmania-Minister for Justice)(8.56) —In relation to the question of how this matter might get before the High Court of Australia, no doubt a litigant would seek a declaration from the High Court that the action of the State government was incompatible, inconsistent or did not conform with section 119a. Senator Bishop —What standing has he got? Senator TATE —As to standing, I would have thought that any person who had been entitled to vote in the local government area concerned would have a standing before the High Court in relation to this matter. But as far as the question of a remedy is concerned, as I say, the litigant would seek a declaration from the High Court. A declaration from the High Court carries with it a status which, up till now, has been recognised by State governments in a way which leads to their acting in accordance with the declaration. That is the situation which one would hope would prevail, otherwise one obviously has a situation of complete anarchy. The fact is that State governments are often confronted with High Court decisions which are not satisfactory to them; nevertheless, they act in accordance with the declaration of the Court. Senator CRICHTON-BROWNE(Western Australia)(9.02) —The Minister might wish to reflect upon the views of the Law Council of Australia. The declaration is not a law and the principles set out in the declaration have not been subject to any legislative process. The declaration ought not to be given the imprimatur of being associated with any body of legislation. There is no precedent in Australian law or government practice for a declaration to be given any formal authority and such a document would appear to have no more force than a manifesto or a political platform. The truth of the matter seems to be-as best I am able to understand it and as Senator Durack has stated-that this Bill is nothing more than tokenism. Although the High Court of Australia might, in some obscure way, place its own inevitable and perhaps unpredictable-given the recent section 92 decision-interpretation on the phrases which are being offered up, in real terms the words seem to represent absolutely nothing. They offer no promise against wrongful dismissal, no promise against forced amalgamations, and no promise against the abolition of local government in parts of the State. It seems to me that this Government is seeking in a cynical way to exploit sentiment amongst local government leaders, pretending to be offering to them something which is illusory. The Government is crudely and boldly pretending to be offering them recognition as if it means something; of course at the end of the day it means absolutely nothing. Whilst, given the explanatory memorandum, the leaders of local government may in the short term be hoodwinked into believing that there is something of substance in this Bill, my guess is that at the end of the day-to use Senator Tate's expression-they will realise that it is a cynical bit of tokenism and that they will wake up to that which is understood by the ratepayers now. There is nothing to be gained by having local government in the Constitution, but absolutely everything to be gained by having local government as a creature of State legislation and in a State Constitution. As I said earlier, it gives local government the flexibility and the capacity to interact and to respond to local demands and local wants. What I suspect from my reading and from travelling around Western Australia is that what the local government people want is not constitutional recognition but funds enough to allow them to provide adequate but modest resources for their ratepayers. Let us reflect for a moment on their present position. Owing to the new funding arrangements for local government commencing in 1988-89, where assistance is tied to percentage changes in respect of general purpose payments to the States, funding for local government will decrease by 2.9 per cent in real terms. Local roads assistance has been reduced and in fact suffered a real decline of 13.2 per cent between 1983-84 and 1986-87. Of course, not surprisingly, there has been a dramatic fall in the total level of Commonwealth road funding from 1983-84 to 1988-89-the black period of this Government. The level of Commonwealth Government funding has declined by 29.4 per cent. This includes a 7.8 per cent real decrease, as announced by the Treasurer (Mr Keating) in the May economic statement. This decline in road funding has occurred notwithstanding the fact that by June 1988 the Commonwealth Government will have taken an additional $426.6m as a result of its 1983-84 decision to index the 2c per litre levy under the Australian bicentennial road development program set up under the Fraser Government for the purpose of allocating all those funds for roads. Of course, local government has suffered a massive loss of Commonwealth funding as a result of the decision by the Hawke Government to terminate the community employment program. For example, in 1984-85 funding under this program was worth $168m; in 1985-86 it was worth $75m; and in 1986-87 the Government allocated $100m to meet all remaining commitments under the program. Of course, these funding measures have made an absolute mockery of the Government's so-called continuing commitment to strengthening local government's place in the Australian system of government. This is reflected in the levels of total Commonwealth funding for local government. After a real increase of 2.9 per cent in 1984-85, total Commonwealth assistance to local government declined by 1.5 per cent in real terms in 1985-86 and by 7.3 per cent in 1986-87. While the figures for 1987-88 are not yet available, one can reasonably assume that the decline will be of a similar magnitude. In my judgment this is a reflection of the real care and concern of this Government for local government. This Government will not satisfy the needs of local government, the wants of local government ratepayers, those people who live in local government areas or those people who are subject to local government provisions by token representation or token recognition in the Constitution. The Government will satisfy them by providing adequate and equitable funding. This Government has not done that. I can imagine only that this Government, in its typically cynical way, has chosen to proffer this constitutional amendment as something of a sweetener, something of a sugar-coated pill, to ensure as best it is able that question No. 1 gets through, to ensure that the powers of the Senate are gutted, and that we have elections whenever the Prime Minister (Mr Hawke) wants them, whenever it is expedient for him and his political party to take the people to the polls again. I do not believe this Government ever intended, at least with this wording, to give any proper recognition to local government in any real way. I have no doubt that if this Government could have its way it would go back to its original 1978 constitutional proposals in which it proposed that there be direct funding. That proposal was rejected not just by the Australian people; most of all the charge was led by local government. I suspect the result will be exactly the same for this proposal. Senator BURNS(Queensland)(9.06) —There has been a lot said by the Opposition in this debate, much of it directed towards the suitability of the current Constitution to last over time. If one looks at section 68 of the Constitution one sees very clearly how wrong that view is. It says that the command in chief of the naval and military forces of the Commonwealth is vested in the hands of the Governor-General as the Queen's representative. There is no mention of an air force. I just want to make the point that the Constitution is dated. Senator Boswell made the point-- Senator Crichton-Browne —That is a constitutional amendment you ought to be putting up. Senator BURNS —Somebody had better bring this booklet up to date. The Opposition has talked about tokenism. If it is tokenism I do not know why it is putting such effort into seeing that it does not take place. Senator Boswell, a learned gentleman in this place, made some points about local government being gullible. Another honourable senator talked about it being innocent and unsuspecting. If that is not paternalism I have never heard it, particularly in the situation where local government over a period of time has asked for these changes in the Constitution. I read the speech made in the House of Representatives recently by a friend of mine, Tom Uren, in which he made that point. He encouraged people in local government to go out and battle for those things they had asked for over a long period. They support their own recognition in the Constitution, and so if the Ron Boswells and the Crichton-Brownes of this world want to say that local government is innocent, naive, unsuspecting and gullible, let them be recognised for the frauds they are. Ron Boswell also said, and of course he has a brilliant legal mind-- Senator Boswell —Madam Chair, I rise on a point of order. I ask to be recognised as a senator of the Commonwealth of this nation. I am a duly elected member of parliament and a senator from Queensland. Senator Bjelke-Petersen —A very excellent one, too. Senator Boswell —I thank Senator Bjelke- Petersen. I ask that the honourable senator recognise my full title. The TEMPORARY CHAIRMAN(Senator Giles) —Senator Boswell, I doubt whether any disrespect was intended but I will make the point to Senator Burns that perhaps he might extend the niceties of this chamber to all honourable senators. Senator BURNS —I feel suitably chastised. Never again will I refer to Senator Boswell as Mr Boswell, but it is a bit difficult to be friendly with someone who wants to be known as Senator all the time. He said he had no confidence in the High Court. The High Court has been given responsibilities since Federation-- Senator Boswell —I did not say that. Senator BURNS —Yes, it is in the Hansard. Senator Parer —You cannot read. Senator BURNS —I heard it on the radio as well. What is being argued here by the Opposition-- Senator Boswell —I raise a point of order, Madam Temporary Chairman. I do not recollect saying that I had no confidence in the High Court. I ask you to call on the honourable senator to withdraw that statement. The TEMPORARY CHAIRMAN —I do not believe that there is any point of order. Senator Chaney —Madam Chair, I think that the Standing Orders protect the High Court. If they protect the High Court, it would be disorderly of Senator Boswell to say that of it. I think that if Senator Boswell denies that he said it, that was really an accusation of unparliamentary language. I think that that matter could be reconsidered. The TEMPORARY CHAIRMAN —I think it was a point of misrepresentation rather than any disrespect for the High Court. The debate is getting a little lively. That general comment might be taken as some advice as to how it might proceed. Senator BURNS —I am quite happy to withdraw that remark, but I rely on the Hansard record. Senator Tate —There are three more speakers on the other side. Senator BURNS —I understand that the Minister had his go. I want to make it clear that I have confidence in the High Court to interpret the Constitution. Senator Durack made the point that it would be difficult for the Court to make certain decisions when there were disputes between local and State governments. I suggest that it had no problem in 1949 when the Labor Government decided to nationalise the banks. It made a decision and it was accepted. Why do not those on the other side of the chamber who are opposed to the interests of local government just get up and say it? Why do they not just say `We believe that local government should be the creature of State governments and should have no recognition', and leave it at that? Senator WALTERS(Tasmania)(9.12) —The title of this Bill is incorrect. It is `An Act to alter the Constitution to recognise local government'. Indeed, it does not do that. It deals with a system of local government. The Minister would know that, while the Constitutional Commission, in the summary of its first report, put forward a recommendation that local government should be recognised, the Government deliberately changed the wording and proposed that not local government but a system of local government should be recognised. I ask the Minister whether he can tell me why the Government has changed that wording and what the definition of a local government system would be if the Government desired to define it. Senator TATE(Tasmania-Minister for Justice)(9.13) —It is very hard to give a definition of a system of local government that is not merely repetitious of that description. Obviously, it means an organised system-I cannot think of another word for `system'-which provides for many local government organisations of the character described; namely, bodies elected in accordance with the laws of a State. In other words, it covers a number of such bodies throughout the State. They obviously require a certain degree of organisation, and that is what a system is. It is a very simple word. Senator WALTERS(Tasmania)(9.14) —Would such a system include regional groups, regional councils? Would it include Aboriginal councils, so long as they were elected according to the State law? I have no idea what it would cover. The mind boggles as to what a system of local government would include. I ask the Minister to give this side of the chamber some indication of the breadth of the Government's thinking. It must have had some reason for changing the wording of the Constitutional Commission's recommendation, from simply `local Government' to `a system of local government'. It is for that reason I ask the Minister whether he could give us some indication of the bodies that would cover. Senator TATE(Tasmania-Minister for Justice)(9.15) —I have already indicated that the Government did not wish to create a situation where State parliaments and governments were fettered in their ability to deal with a particular local government body that was perhaps guilty of corrupt practices and ought to be dismissed. Therefore rather than make a constitutional provision that provided for the establishment and continuance of a local government body, we talk about the continuance of a system of local government to allow within that organised structure of local government authorities throughout a State, in the particular jurisdiction of a State parliament, for an individual local government body to be dismissed for the sorts of reasons with which we are familiar. Senator Walters —What about the two I suggested? Would they come under that? Senator TATE —I do not know the situation in Queensland. Senator Boswell would probably be more familiar with it. I understand there are some Aboriginal communities which are in fact vested with local government powers of making by-laws and administering their areas, and of course they are elected local government bodies. Senator Boswell —That is right; they are elected every three years to local government. Senator TATE —That is right. It is one of the strong points in Queensland that in fact these Aboriginal communities have local government powers in their particular areas. Senator Walters —What about the regional government bodies? Would they also come under the Government's system of local government as the Minister sees it? Senator TATE —In so far as a regional body is given powers to make by-laws and to administer the area of the region, then it is a local government body of that kind, and it has to be elected under this particular provision. Senator WALTERS(Tasmania)(9.17) —The Minister said tonight that the Government had departed from the recommendation of the Constitutional Commission because it wants to make the proposal much broader than covering just ordinary local government bodies as we know them today. It would indeed cover regional groups and all the sorts of groups that the Minister indicated tonight. He also indicated that if a city council such as the inner city council in Sydney were dismissed it could be abolished under the legislation. The explanatory memorandum states: A state would be free to determine that, having regard to the nature of a particular region and other relevant circumstances, it would not be appropriate for the region to be administered by a local government body. The Minister has told us tonight that so long as the State has some sort of local government system somewhere in the State that is all right. It does not need to have local government bodies as we know them today, even the main cities. They can be abolished if because of the special nature of a particular region or any other relevant circumstance the Government wishes to abolish them. This is a complete sham. This is what I explained to the Tasmanian Local Government Association last week in Tasmania. Frankly, Mr Peter Kyle, the President of the Australian Local Government Association and a Western Australian visiting Tasmania for its annual conference, did not believe what I was saying. Fortunately, I can now send him a copy of Hansard to prove that I was correct and that indeed that is just what the Government intends. I am sorry that the Australian local government conference in Canberra today has not had the truth of the matter put to it. It has just had an emotive speech by the Prime Minister (Mr Hawke). Those attending are unaware of the truth of the matter, but I can assure the Minister that they will not stay unaware for long. Senator TEAGUE(South Australia)(9.20) —I do not envy Senator Tate, who is in the chamber, and I do not envy his advisers sitting with him, because clearly the Government has not thought this Bill through and has not put itself in a position in which it can answer questions at the committee stage of the debate. This afternoon and this evening a wide range of questions were put by Opposition senators about a Bill that contains only 14 lines-it is as brief a Bill as I have ever seen since I have been a member of this chamber-yet the Minister was unable to give clear and concise answers. Senator Walters has just demonstrated that point. Senator Chaney spoke first in this committee debate and in his 15-minute speech he put a range of questions about references in the second reading speech and in the explanatory memorandum that is associated with the 14 lines of this Bill-questions such as what a reasonable time means and whether certain forms of local government may exist under the rubric system of local government. I can only conclude that the Government has made a political decision to make an emotive noise to those involved in local government and to put forward to them the title of the Bill-`An Act to alter the Constitution to recognise local government'-as if it were some boon to local government in Australia. It is nothing of the sort. It is completely without substance. It gives no practical benefit, nor can argue that it would have given any practical benefit to local government in any part of Australia in the last 88 years. I have heard, with good foundation, the words `sham', `fraud' and `smokescreen' used in respect of this Bill. The word `smokescreen' is appropriate. The Government's agenda, which is a political agenda, is to try to do all that it can, even by a biased description of the titles of the referendum Bills, to get up question No. 1-the proposal which would take away the powers of the Senate. In order to maximise a chance to get up the question that matters to this Government-question No. 1-a Bill such as this is introduced: a 14-line Bill which relates to local government, which provides an emotional fog, a smokescreen, and which is meant to get some responsive cord in local government representatives around Australia. That is what it is about. It is entirely about politics. No-one has been able to maintain, in any of the speeches at the second reading stage or in any of the contributions in the committee stage of the Bill, that this Bill amounts to anything of substance. The words that have been used again and again are `tokenism', `sham', `fraud' and `smokescreen'. Yet local government is still being told by this Government that the measure has been put forward in response to its requests. I can only say that the way in which the committee stage of the Bill has been conducted in the chamber, with the lack of clear and concise answers, even any answers at all, to many of the matters that have been raised shows that there is no well-thought-out position. The advisers are silent, the Minister is silent and we are left with the smokescreen of this political agenda put forward by the Labor Government. It is deplorable that there has been such a fruitless response from the Minister in the chamber. The Minister who was present for all of this debate, Senator Tate, has left the chamber while I have been speaking. In his place is another Minister, Senator Robert Ray, who has not heard the questions, who has not heard the matters that are being sought by the Committee. How can we expect there to be any substance in the replies that he may put to us now? The whole of this debate reinforces the fact that the third referendum proposal is on the political agenda of this Government as a smokescreen to try to induce the public to a warm feeling that would lead them-if they are deluded-to support the first question, concerning the terms of the House of Representatives and the Senate. I can only say that it is not good enough. I have not previously experienced such a lack of responsiveness and clear answers in the committee stage of a Bill. Senator TAMBLING(Northern Territory)(9.27) —I direct a couple of very specific questions to the Minister. A few moments ago, in answer to a question from Senator Walters, the Minister for Justice, Senator Tate, implied that this Bill would apply to new arrangements being proposed for Aboriginal and Torres Strait Islanders. I got the very clear impression that this Bill would have effect with regard to any new proposals for local government. Given that this Bill, according to its title, is a Bill for an Act to alter the Constitution to recognise local government, one would have thought that it would have had universal application throughout Australia. Why are there now two categories of citizens in Australia-those in the States and those in the Northern Territory? This proposed Act is not expressed to operate in respect of the Northern Territory. I think that is a very serious omission because, in effect, it means that there are Australian citizens who will not be covered by this local government proposal. It further reinforces the demonstration of how hollow the proposals are. There is no reference whatsoever in the explanatory memorandum or in the Bill to its application in the Northern Territory. Given the confusion that has arisen with regard to the proposed new regional councils for Aboriginal communities, I find that to be a very serious omission and one to which I would like a very serious answer. Senator TATE(Tasmania-Minister for Justice)(9.28) —There is some confusion on Senator Tambling's part. I did not say that the proposals to do with Aboriginal self-determination and self-management under the proposed new commission for Aboriginal and Torres Strait Islanders would fall within this constitutional provision. I was referring, for example, to the situation that Senator Boswell outlined in Queensland, where certain Aboriginal communities are given local government powers in relation to their own area under an Act of the State Parliament. They hold elections every three years, they make by-laws and administer those areas. I was speaking only about those Aboriginal communities. In relation to the Territories-not only the Northern Territory; there is the Australian Capital Territory, Christmas Island and Norfolk Island-the Constitutional Commission took the view that the constitutional development of the Territories is at a different stage from that which has been the case in the States. In particular, it mentioned the sparsely populated areas in the Northern Territory. It was more to do with the fact that the Territories are at different stages of constitutional development and the provision that it suggested should be made in relation to the local governments in the States should not be required in the Territories of the Commonwealth. Senator TAMBLING(Northern Territory)(9.30) —I am somewhat alarmed that the Minister has in effect conceded that there are to be two classes of Australians: what is to apply to the States will not apply to the Territories. The Minister took the liberty of quoting from the Constitutional Commission in that respect. But I would also ask him: Would he acknowledge that the distribution of powers advisory committee to the Constitutional Commission advised against recognising local government in the Commonwealth Constitution? It stated that it would be undesirable to entrench another level of government which would be in competition with the States. Senator TATE(Tasmania-Minister for Justice)(9.31) —I cannot recall the titles of all the Constitutional Commission committees. I seem to recall that one advised against recognition and one advised for recognition of local government. That does not really matter; the important point is that the Commission came to its decision. The Commission took the view that to impose this constitutional obligation on Territories at their various stages of development was not appropriate, as it was in the case of the States. Senator ARCHER(Tasmania)(9.32) —Can the Minister tell me under which part of section 51 (v) of the Constitution, Powers of the Parliament, we are able to make this offer to local government for recognition? As I understand it, that is the list of the functions of the Federal Parliament. I do not see a heading there that readily seems to equate with this section. Senator TATE(Tasmania-Minister for Justice)(9.32) —That is because we are not looking at the present powers of the Parliament as set out in the Constitution; we are looking to make a new section within the Constitution by way of referendum. For that one looks to section 128. Senator Archer —Does the offer of this sort of thing not rest with the States rather than with the Commonwealth to make? Senator TATE —It is really not for the Commonwealth or the States to make an offer-if that is the terminology to be used. This matter will be determined by the people of Australia voting in a referendum. They will make a determination as to whether they consider that local government ought to be recognised in the way that is outlined. Bill agreed to. Bill reported without amendment; report adopted. Ordered that the third reading of the Bill be an Order of the Day for a later hour of the day. Senator TAMBLING(Northern Territory) —by leave-I give notice that, on the next day of sitting, I shall move- (1) That a select committee, to be known as the Select Committee on the Administration of Aboriginal Affairs, be established to examine and report upon the Government's proposals for the reorganisation and administration of Aboriginal affairs by the formation of an Aboriginal and Torres Strait Islanders Commission including: (a) the terms of those proposals and the clauses of any legislation proposed for the establishment of ATSIC; (b) the effectiveness of the process of consultation undertaken by the Government with respect to the ATSIC proposal; (c) the proposal of the Aboriginal Development Commission for `an alternative strategy of Aboriginal self-management'; (d) the Government's treatment of the Aboriginal Development Commission and the Commissioners, including the dismissal of 8 of the Commissioners. (2) That the Committee report to the Senate within six months of the publication of legislation or draft legislation to establish ATSIC. (3) That the Committee consist of six Senators, as follows: (a) three to be nominated by the Leader of the Government in the Senate, (b) two to be nominated by the Leader of the Opposition in the Senate, (c) one to be nominated by the Leader of the Australian Democrats. (4) That the Committee proceed to the despatch of business notwithstanding that all members have not been duly nominated and appointed and notwithstanding any vacancy. (5) That the Chairman of the Committee be appointed by and from the members of the Committee. (6) That the Chairman of the Committee may, from time to time, appoint another member of the Committee to be the Deputy-Chairman of the Committee, and that the member so appointed act as Chairman of the Committee at any time when there is no Chairman or the Chairman is not present at a meeting of the Committee. (7) That, in the event of an equality of voting, the Chairman, or the Deputy-Chairman when acting as Chairman, have a casting vote. (8) That the quorum of the Committee be three members. (9) That the Committee and any sub-committee have power to send for and examine persons, papers and records, to move from place to place, to sit in public or in private, notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives, and have leave to report from time to time its proceedings and the evidence taken and such interim recommendations it may deem fit. (10) That the Committee have power to appoint sub-committees consisting of three or more of its members, and to refer to any such sub-committee any of the matters which the Committee is empowered to consider, and that the quorum of a sub-committee be a majority of the Senators appointed to the sub-committee. (11) That the Committee be provided with all necessary staff, facilities and resources and be empowered to appoint persons with specialist knowledge for the purposes of the Committee with the approval of the President. (12) That the Committee be empowered to print from day to day such papers and evidence as may be ordered by it, and a daily Hansard be published of such proceedings as take place in public. (13) That, if the Senate be not sitting when the Committee has completed its report, the Committee may provide the report to the President, or, if the President is unable to act, to the Deputy President, and, in that event: (a) the report shall be deemed to have been presented to the Senate, (b) the publication of the report is authorised by this Resolution, (c) the President or the Deputy President, as the case may be, may give directions for the printing and circulation of the report, and (d) the President or the Deputy President, as the case may be, shall lay the report upon the Table at the next sitting of the Senate. (14) That the foregoing provisions of this Resolution, so far as they are inconsistent with the Standing Orders, Have effect notwithstanding anything contained in the Standing Orders. Debate resumed from 19 May, on motion by Senator Tate: That the Bill be now read a second time. Question put. The Senate divided. (The President-Senator the Hon. Kerry Sibraa) Ayes . . . . . . . . . . . 35 Noes . . . . . . . . . . . 33 —— Majority . . . . . . . . . 2 —— Aulich, T. G. Giles, P. J.Beahan, M. E. Haines, J.Black, J. R. Jenkins, J. A.Bolkus, N. McKiernan, J. P.Burns, B. R. McMullan, R. F.Button, J. N. Macklin, M. J.Childs, B. K. Maguire, G. R. (Teller)Coates, J. Morris, J. J.Collins, R. L. Ray, RobertColston, M. A. Reynolds, M.Cook, P. F. S. Richardson, G. F.Cooney, B. C. Sanders, N. K.Coulter, J. R. Schacht, C. C.Crowley, R. A. Sibraa, K. W.Devereux, J. R. Tate, M. C.Devlin, A. R. Walsh, P. A.Foreman, D. J. Zakharov, A. O.Gietzelt, A. T. Alston, R. K. R. MacGibbon, D. J.Archer, B. R. Messner, A. J.Baume, Michael Newman, J. M.Bishop, B. K. Panizza, J. H.Bjelke-Petersen, F. I. Parer, W. R.Boswell, R. L. D. Patterson, K. C L.Calvert, P. H. Puplick, C. J. G.Chaney, F. M. Reid, M. E.Chapman, H. G. P. Sheil, G.Crichton-Browne, N. A. Short, J. R.Durack, P. D. Stone, J. O.Hamer, D. J. Tambling, G. E. J. (Teller)Harradine, B. Teague, B. C.Hill, R. M. Vanstone, A. E.Knowles, S. C. Walters, M. S.Lewis, A. W. R. Watson, J. O. W.McGauran, J. J. Evans, Gareth Brownhill, D. G. C.Jones, G. N. Baume, Peter Question so resolved in the affirmative. Bill read a second time. The CHAIRMAN —Is it the wish of the Committee that the Bill be taken as a whole? Senator CHANEY(Western Australia-Leader of the Opposition) —Mr Chairman, when one looks at this Bill it is quite clear that there are three quite separate propositions. Whilst one might take propositions 1 and 2 together, the reality is that there will be people wishing to address the matters of trial by jury, the acquisition of property and the establishment of religion. We would have a much more orderly debate if we dealt with those propositions seriatim. I therefore suggest that we take the Bill clause by clause because, otherwise, we will have a chaotic debate. The CHAIRMAN —There being an objection to the Bill being taken as a whole, it will be dealt with clause by clause. Clause 1 (Short title). Senator HARRADINE(Tasmania)(9.43) —I want to raise a question with the Minister for Justice (Senator Tate) about why such disparate questions are being put in the one referendum proposal. I think that clause 1 is the appropriate clause under which to ask this question. Perhaps if I am out of order the Chairman will tell me so-but I do not know of any other clause under which I can raise this question. There are three quite separate and distinct questions. One relates to trial by jury; one relates to the so-called extension of freedom of religion-and we have dealt with that question here before-and the other relates to property. Will the Minister give an explanation to the Committee as to why the Government chose to include these quite disparate matters in the one referendum proposal? That is a simple question. What is the answer? Senator TATE(Tasmania-Minister for Justice)(9.45) —These particular proposals have been linked together because their aim is to extend the provisions already existing in the Constitution in relation to trial by jury, freedom of religion and fair terms for persons whose property is acquired by a government. But at the moment, as is well known, these provisions relate only to the Commonwealth and its desire to extend already existing principles in this area to the States. Senator HARRADINE(Tasmania)(9.45) —Am I to understand that when the Minister says that he is extending these provisions he means extending them to the States, whatever the matter is. For example, if an elector were to consider that the property question should be extended to the States-according to Senator Tate it should be extended to the States-why could the elector not then vote for that and vote against the other two? In this particular instance the Minister is not giving the electors a true freedom of choice. He is saying to the elector, `If you agree with one and you want to vote for that one, you have got to cop the other two as well'. That is what he is saying to the elector. Would the Government be prepared, in the interests of giving electors a true and free choice as to how they vote in these referenda, to split these questions into three parts? Senator TATE(Tasmania-Minister for Justice)(9.47) —The Government is putting this question as one in relation to the extension of these particular rights already provided for against the Commonwealth in the Constitution. The decision has been taken to pose the question in that single form. Senator BISHOP(New South Wales)(9.47) —I think it is important as we start to debate this Bill and its various clauses that we understand very firmly the point that Senator Harradine has made; that is, that the whole set of propositions must stand or fall together. There is no way one can say, `I like this one and reject that one'. That is a decision the Government has made and it must stand by that. It has to be judged by it. I think that as we go forward to discuss the items separately all of us must understand that the whole package either stands or falls together. Senator CRICHTON-BROWNE(Western Australia)(9.48) —What is the connection between just compensation and a claim for freedom of religion? What is the connection other than the convenience of putting the three together and seeking to confuse people to try to get a yes vote? I ask the Minister in all sincerity: What is the connection between the two in terms of the question asked in each case? Senator TATE(Tasmania-Minister for Justice)(9.48) —The connection lies in the fact that the three matters provided for in this referendum are already provided for in the Constitution in relation to the Commonwealth. What is being sought is a simple extension of those three matters to apply against the States. Senator HARRADINE(Tasmania)(9.49) —I refer honourable senators to section 115 of the Constitution and to the answer just given by Senator Tate. Senator Tate said that the reason the Government had put all these disparate questions as one question was that they each extended the application of a provision in the Commonwealth Constitution to the States. Honourable senators, please correct me if I am wrong, but that is as I understood the answer given by Senator Tate. I ask Senator Tate: Where do we find the provisions in the Constitution relating to access to property under State law? Senator TATE(Tasmania-Minister for Justice)(9.51) —I do not quite understand the question. What is provided for under section 51 (xxxi) of the Constitution at the moment is: The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws. Therefore, there is already a provision dealing with the acquisition of property on just terms in respect of the Commonwealth Parliament. What I am saying is that this referendum proposal extends that into the arena of the States. Senator HARRADINE(Tasmania)(9.52) —I am rather confused. Is the reason that the Government is putting these three questions as one question that it is extending to the States a provision in the Constitution which now relates only to the Commonwealth? If that is the reason, it is a very shoddy reason indeed. It is an excuse for doing something which will deny to the electors of Australia a true freedom of choice. It is quite likely that there are some people who may say, `Yes, I can understand this issue about property'. However, the extension of the freedom of religion proposal could lead down the track to the erection of an impenetrable wall between the body politic and those persons who choose to adhere to a particular religion and, in fact, if the Murphy judgment were to be followed, would deny education justice to people who send their kids to poor parochial schools. This would not be giving a true freedom of choice to the elector. What the Government is doing is dumping disparate questions into one and then saying to the electors, `Cop one or cop none'. I will forget all about the other questions, but what is to prevent the Government now deciding to put these disparate matters into three separate questions? Senator TATE(Tasmania-Minister for Justice)(9.53) —The government is putting these questions in the form that I have indicated not in reliance on but following the Bill proposed by the Constitutional Commission, which also put these matters together for the very reason I indicated, and believes that this particular mode of putting the questions should be continued; and it will not be dividing them into further questions. Senator HARRADINE(Tasmania)(9.54) —The point is quite obvious to everybody. I have my papers here and I will check in a moment whether the Constitutional Commission was suggesting that these matters were of a kind. I am not sure whether the Government is following this matter on that basis, but it certainly did not follow the Constitutional Commission's recommendations in respect of local government. Senator Short —Or question No. 1. Senator HARRADINE —Or question No. 1. Senator HILL(South Australia)(9.55) —I want to give the Minister for Justice the chance to correct something he just said to the Committee and which I am sure, on reflection, he will realise is wrong; that is, the reasons these three provisions would be put in as one is that the provisions are in the Constitution presently and are simply to be extended to cover the States also. That is blatantly incorrect. It is clear that the Constitution does touch upon the subject matters of trial by jury, acquisition of property and freedom of religion. However if we look simply at the first of them, trial by jury, we will find that the provision we are to vote upon tonight is an entirely different provision from that currently in the Constitution. It is not just a matter of extending it to apply to the States. It changes the arbitrary test that is currently in the Constitution, that is, that a trial should be by jury if it is on indictment, to another arbitrary test, that is, that a trial should be by jury if the defendant is liable to imprisonment for more than two years. So I am sure that upon reflection the Minister will agree that it is an entirely different provision from that which is currently in the Constitution. Therefore the reason that he just gave to the Committee for grouping the three together is incorrect and it raises new issues that have to be debated tonight; new issues that will mean if the proposal is passed the constitutional provision for trial by jury will have a new basis entirely. Therefore one is forced to ask the Minister, if he now agrees that this is in fact a new provision based on a new test why does the Government not allow it to be put to the people as a single issue in order that they might resolve it? Senator TATE(Tasmania-Minister for Justice)(9.57) —It is true to say that in relation to trial by jury the provision presently in the Constitution and which was intended by the framers of the Constitution to provide an adequate trial by jury safeguard for those who were facing a serious charge which might lead to the deprivation of their freedom or even of their life, I suppose, in those days, is being strengthened by overcoming what has turned out to be a very easily surmounted provision that required that trial by jury be provided where the trial was on indictment. Of course, the simple fact was that if one did not provide for a trial by indictment, no trial by jury was required. So it is true that it is being modified in that respect and strengthened in order to accord quite clearly with the intention of the framers of the Constitution that persons have the benefit of trial by jury in those more serious cases. But I do not see that that modification and strengthening of that provision necessarily is at odds with the general claim I was making that trial by jury, freedom of religion and acquisition of property on just terms are provided for in the Constitution as against the Commonwealth, and it is seen as desirable to extend all of those matters and rights to be enjoyed by Australians as against State parliaments also. I can only repeat that the questions, to be put as one, take account of that common link which I still see in relation to the extension of matters which have already been thought to be important by the framers of the Constitution when they established the Commonwealth. Senator CRICHTON-BROWNE(Western Australia)(9.59) —I am tempted to be curious and ask why the Government insists on putting these three questions together, particularly if it is serious about getting a Yes result. It leads me back to the proposition I proffered from the outset; that is, the object of these questions is to get a Yes answer to the first question, which is the one that is important. The local government is unimportant to the Commonwealth. Senator Stone —It is important in order to destroy the Senate. Senator CRICHTON-BROWNE —That is right. The first question will, of course, destroy the Senate. It will give this avaricious Prime Minister (Mr Hawke) a capacity to indulge himself in an election whenever he has a whim or a wish, whenever it is politically expedient or whenever he finds himself running into unpopularity, and, at the end of the day, it will gut the Senate. The question in respect of local government, as we know, comes to nought. As to this question-this point has already been put-the question of alleged freedom of religion, as suggested by Senator Harradine, is perhaps something upon which those who have a strong view will focus. I would have thought, if the Government was serious about its section 51 (xxxi) proposition, if it was serious about its section 80 proposition, it would have put those questions separately. Those who feel strongly about the section 116 proposition will, presumably, vote down the other two. The Government must know that. Inept and incompetent as it might be, it can count. It will know that those people who feel strongly about section 116 will vote against the section 80 proposition and the section 51 (xxxi) proposition. If the Government is serious about getting those questions through with a Yes vote, why does it not separate them? More importantly-this brings me back to what I have put to Senator Tate previously-governments have a responsibility in respect of constitutional amendments to offer the public an opportunity to have a free and full understanding of the questions being put to them. We have found that that is not true in respect of the first question; that it is totally untrue in respect of the fair elections questions; and that it is totally untrue in respect of the local government question. Now we find in this case that three questions are to be put together, to deny people at least an equal chance of beginning to make a judgment as to how they feel about the matters. They are compelled, if they feel intensely about one question, to vote against the other two. The voters of Australia are being denied an opportunity to reflect individually on each question. I ask the Minister: Why does he persist with denying the people an opportunity to have separate and sober reflection upon each question covered? So far, as I have understood his answer-I ask him to forgive me if I have misunderstood him-he has said that it is because in some vague way he is including the States and in some cases the Territories in the question. I can think of no issues more distinct and separate than questions of fair compensation, of trial by jury, and of alleged freedom of religion. They are totally different and disparate questions. It seems to me that Senator Tate is playing Russian roulette in asking the Australian community to determine those questions collectively when they might have strong views, in different directions, on more than one. I just ask Senator Tate: At the end of the day, what is to be the solution to the dilemma of those in the community who may, for whatever reason, feel intensely against his amendment to section 116 but feel equally intensively in support, for instance, of the amendment to section 8, the trial by jury question? What are those people to do? What is he offering as a solution to those people who have a strong feeling in favour of a Yes vote in the one case and a strong feeling in favour of a No vote in another? Both views might be based on the premise of morality. They might be matters that they feel touch upon them and their rights within this community. What should they do in making their determination? Do they have to make a judgment on balance as to which is most important, which is the most intrinsic right to them? Are they being asked to deny and sacrifice a view about one in order to achieve a result in another? I ask Senator Tate why the Government is not prepared to split these questions in a very simple way. Senator BISHOP(New South Wales)(10.05) —I think on this first section it is important to make another point pertaining to why these questions are put together. At a later time when we come to debate specifically the amendments to section 116 I will be able to speak at some length. I think this question has been phrased, and these three issues put together, for the simple reason that the Government believes it will slip through the amendment to section 116 with the issues of trial by jury and fair and just compensation. The real intent of this question is to get rid of State aid to private schools, religious based schools. When we start to examine the proposal and look at the authorities in an analytical and specific way, we will find that is the real intent. Just as the question that is to be posed to the electorate is couched in spurious terms, the so-called extending of freedoms, the true purpose will be seen when we start to debate the specific sections. Senator TAMBLING(Northern Territory)(10.06) —I share the concern of a number of my colleagues about lumping together three very disparate issues in this referendum question. It is rather like the pub conversation where one is not supposed to link politics, religion and sex. We are certainly getting a combination of all three in this area-trial by jury, the religious argument and, of course, the sexy one, which is the acquisition of property. In the second reading debate the other day I dealt with the very serious issues raised by the Northern Territory Government as a body politic about how the proposal would affect it. I draw the Minister's attention in particular to that part of the explanatory memorandum relating to clause 3, acquisition of property. The explanatory memorandum states: This clause inserts new sections 115a and 115b into the Constitution. The purpose of proposed new section 115a and 115b is to extend the obligation to provide just terms to acquisitions of property under State law, to acquisitions under laws made by the Parliament of the Commonwealth under section 122 and to acquisitions under Territory laws. It should be noted, however, that the proposed section 115b does not require the provision of just terms where the property to be acquired is the property of a Territory as a body politic (contrast the reference to a `State' in s. 51 (xxxi) . . . I have a couple of serious questions in that regard. The first relates to the past practice of the Commonwealth in the Northern Territory, where it has compulsorily acquired property vested in the Northern Territory. I should like the Minister to address seriously those questions which I raised quite properly the other day in the second reading debate. I should also like Senator Jenkins to take particular note of the implications of this for the Australian Capital Territory (ACT). The Government has quite publicly announced that it is proceeding down the line of self-government for the ACT. In effect this would create a body politic in the Australian Capital Territory. What would be the application of this particular clause to the acquisition of land in the ACT? Does it mean that we will see similar acquisitions, where the Commonwealth can pass legislation, as it has done in respect of various Aboriginal land and parklands in the Northern Territory. Would this clause give the Commonwealth the power in the ACT to get involved in a set of different and disparate land acquisition rules? Again there would be two types of citizens in Australia, those in the ACT and the Northern Territory, and those in the States. Senator ALSTON(Victoria)(10.10) —I invite the Minister to address two questions. Can he give any previous examples of disparate referendum questions being combined in the one question, and can he indicate where it is that the Constitutional Commission recommended specifically that the three questions be rolled into one? Senator TATE(Tasmania-Minister for Justice)(10.10) —I do not know of any previous example that I can give to the chamber at the moment, but in relation to the second part of the question, at page 805 of the second volume of the first report of the Constitutional Commission dated April 1988, in Bill No. 12, there is provision-in fact, it deals with more than these three matters-for a Bill for an Act to alter the Constitution so as to extend the guarantee of the right to trial by jury, freedom of religion, the right to fair compensation for acquisition of property and freedom from discrimination on the grounds of residence in a State. That was the basis of my previous reply. Senator TAMBLING(Northern Territory)(10.11) —I do not believe that the Minister has addressed any of the fundamental questions that I raised. Senator TATE(Tasmania-Minister for Justice)(10.11) —Mr Temporary Chairman, as I indicated to you, without actually taking a point of order, I thought that the questions on that matter were not relevant to the clause before us, but were relevant to the discussion of acquisition of property on just terms. I thought that it was more relevant to answer in that context. The TEMPORARY CHAIRMAN(Senator Teague) —The question before the Committee is that clause 1 be agreed to. The debate on the subsequent clauses-clauses 2, 3 and 4-will provide an opportunity for more particular matters to be raised. Senator CRICHTON-BROWNE(Western Australia)(10.12) —There is little point in my pursuing this matter if the Minister intends to sit there in abject silence, but I invite him to answer at least the last question I put to him. What does one do if one feels intensely for a Yes vote for the amendment to section 116 but intensely about a No vote in respect of either section 80 or section 51 (xxxi.)? Senator TATE(Tasmania-Minister for Justice)(10.13) —I do not know that I can solve that problem for every person confronted with the question that will be posed. I imagine that, as the honourable senators says, it would be a question of the intensity with which a particular matter was held as warranting support or rejection. Some sort of balance would have to be made in that context. I do not pretend that that exercise would be an easy one, but that is the way it would have to be undertaken. Senator CRICHTON-BROWNE(Western Australia)(10.13) —What the Minister is saying is that, at the end of the day, one may have to sacrifice reasonable compensation for one's religious beliefs. Fair and equitable compensation may be denied because- Senator Alston —It depends who comes first, God or mammon. Senator CRICHTON-BROWNE —For the purpose of this exercise, I seek to put God leaps and bounds ahead. If one feels intensely in support of the Government's alleged proposition for freedom of religion and has a sensible and logical approach to what the Government has put as fair compensation, one has to subjugate the normal desire to stand by one's belief in one's religion. Also, if one were to believe, theoretically, in the question put, one would be denying oneself absolute certainty of trial by jury in a State because of one's belief in one's religion. Senator TAMBLING(Northern Territory)(10.14) —One of the things that I find very confusing with this aspect is that no-one from the Australian Democrats has spoken. If one considers the serious way in which the Democrats nearly always put the priority of personal freedoms and individual expressions, one would have thought that they would have had a very serious view on this potpourri of proposals that has been presented. The Democrats, by their silence, have acquiesced. I wonder where they stand in regard to the consideration of this matter. Clause agreed to. Clause 2. Senator HILL(South Australia)(10.15) —Clause 2 deals with trial by jury. I foreshadowed my concern during the consideration of clause 1. It seems to me that one arbitrary test that currently exists in the Constitution is simply being replaced by another arbitrary test. I am not sure that the new arbitrary test will strengthen the provision in the way that the Minister for Justice (Senator Tate) claimed. I remind you, Mr Temporary Chairman, that the existing provision in the Constitution, section 80, provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. Therefore, the test is whether the provision in the enacting criminal law provides for a trial on indictment. We all know that what follows logically is that if the trial is to be prosecuted summarily the security provided in the Constitution is avoided. Many cases have come to that conclusion. Therefore, as I indicated, the security provided by section 80 can be fairly easily avoided. What is the alternative that this Government is putting to the Committee tonight? It is putting a new provision, the first part of which reads as follows: 80.(1) the trial of a person for an offence, where the accused is liable to imprisonment for more than two years . . . shall be by jury . . . A number of exceptions are listed. Basically, what is being substituted is the arbitrary test of whether the accused is liable to imprisonment for more than two years, as I said, for the currently existing arbitrary test of whether the trial is to be on indictment. Why should a penalty provision of a period exceeding two years in prison be the sacred cow in this instance? One is no doubt aware of many offences that exist under both Commonwealth law and State law which any reasonable person would regard as serious. I have thumbed through a few of the key Commonwealth statutes and can remind the Committee of offences that carry a maximum penalty of one year's imprisonment which I would regard as serious and which, in my view, warrant trial by jury. For example, under the Commonwealth Crimes Act, section 30 deals with the offence of seizing goods in Commonwealth custody. Preventing witnesses from attending court, which I would have thought would be regarded by any reasonable person as highly serious is covered by section 40. Possessing or selling tokens resembling coins, defacing coins-one can go on. Under the Bankruptcy Act, section 263 deals with the offences of concealment of property or failure to disclose property, each of which, I would have thought, was tantamount to fraud. They are offences for which there is a maximum penalty of one year. So they would not draw the safeguard that the Minister claims is being given by this new provision in the Constitution. One can look at other existing Commonwealth Acts. I will mention only a couple. Under the Referendum (Constitution Alteration) Act the offence of bribery carries a maximum penalty of one year. Surely, Mr Temporary Chairman, if you were accused of that offence you would want 12 fellow citizens to judge whether you were guilty of the facts that would amount to that offence, rather than relying upon one judicial officer. That is the safeguard that we look to in a trial by jury. Section 49 deals with undue influence, which carries a maximum penalty of one year; yet the safeguard of trial by jury is not guaranteed by the provision that this Government now wishes to insert in the Constitution. One moves to the Royal Commission Act, where the maximum penalty for injury to a witness is one year. That would not draw this safeguard. Section 52 refers to dismissal by employers of witnesses. Again there is a maximum penalty of one year. That would not incur the safeguard. So why adopt this period of two years? There are many provisions currently existing in both State and Federal law that should in certain circumstances entitle a defendant to a trial by jury, yet he will not have that security by means of this constitutional change. I again ask the question: Why a period of two years? The argument is reinforced when one looks at the opinions of the advisory committees to the Constitutional Commission. One finds that two advisory committees gave conflicting advice. The Advisory Committee to the Constitutional Commission on Individual and Democratic Rights under the Constitution disagreed with the Advisory Committee on the Australian Judicial System. The former proposed that an accused person be entitled to a jury as of right in the case of all offences which are punishable by a term of imprisonment of 12 months or more. Why was that advice disregarded by the Government? Why did it not err on the side of caution? I would have thought that that would have been wise in this instance, particularly if the Minister is going to stand here and claim that this provision gives extra security. Certainly if one looks to the second reading speech of the Minister to try to find an answer to that question one will not find an answer. I want to know from the Minister why this Government chose the period of two years rather than 12 months as was recommended to it by the Advisory Committee to the Constitutional Commission on Individual and Democratic Rights. I take the argument one step further and reflect briefly upon the position in the United States. As I understand it, a provision such as we are debating tonight does not exist in the United States. In the event of a penalty being a prescribed period of imprisonment, in the United States trial by jury is ensured. It is interesting to note that in the statutory provisions throughout the United States it has generally been accepted that in any case where a person is liable to imprisonment for a term of six months that person should be entitled to the protection of trial by jury. Why should we in this country be looking to a safeguard so much less than that which is applied in practice in the United States? In those circumstances, how can the Minister therefore stand up and ensure us that the provision that he wishes to insert in the Constitution in lieu of the one that currently exists will offer greater security? Is it not a fact that what is happening is that one arbitrary test is simply being replaced by another arbitrary test? The one the Government is seeking to insert in the Constitution by virtue of this debate will be just as easily avoided by simply providing in the statute that the penalty shall be for a period of imprisonment of two years or a period slightly less than two years. These are serious questions. They have not been answered by the Government. I believe they call for an answer tonight. Senator TATE(Tasmania-Minister for Justice)(10.24) —The test for the operation of the guarantee of jury trial is not arbitrary in the same way as the present test to do with trial by jury on indictment is. What we have is a decision by the Government to guarantee trial by jury throughout Australia to any person, except in certain mentioned cases, who is facing a very severe penalty of imprisonment for more than two years or any form of corporal punishment. Two years was taken not in ignorance of the decision by the Advisory Committee to the Constitutional Commission on the Australian Judicial System, which suggested that 12 months might be an adequate trigger mechanism. Honourable senators will recall that the Judicial Committee of the Constitutional Commission spoke in terms of a maximum of two years imprisonment or more, with the exceptions we have taken up. It was in relation to the report by the Judicial Committee that the Constitutional Commission itself thought that, whilst it was not an easy decision to make, given the fact that two years imprisonment appears to be, as it says, the general limit of magistrates' jurisdiction in Australia with very few exceptions, it seemed to be a reasonable line to draw in relation to the availability of this constitutional guarantee. It says: If a lesser period was selected, the number of jury trials would be enormous. I believe that it is the seriousness of the fate that might befall a person if convicted-being imprisoned for more than two years or suffering corporal punishment-that is the reason for selecting that particular trigger mechanism for the operation of the guarantee. Considering the operation of the magistrates courts and the general range of penalties that they are entitled to impose, that would, in a guaranteed form, continue the general range, level and availability of jury trials that we have now. Senator ALSTON(Victoria)(10.27) —I was interested to hear the Minister for Justice (Senator Tate) refer to what the Advisory Committee to the Constitutional Commission on the Australian Judicial System said in supporting the argument for two years. The Minister said that it preferred that approach on the basis that, if a lesser period were selected, the number of jury trials would be enormous. Does the Minister regard that as a statement of principle which determines the cut-off points? Senator Tate —No. Senator ALSTON —He does not? That seems to be its best argument, so I would be grateful for any other arguments that would suggest the appropriateness of two years. I draw the Minister's attention to section 42 of the Acts Interpretation Act, which provides: Offences against any Act which are punishable by imprisonment, for a period exceeding 6 months shall, unless the contrary intention appears, be indictable offences. Does the Minister suggest that that provision should now be repealed? If not, what is to be the effect of it? Does the Minister regard a Constitution as a document which is intended to enshrine a system of fundamental principles according to which a nation or society is to be governed? If that is so, how does he reconcile the subsections of the proposed new section 80 which go into quite some detail about not only matters of venue but also size and composition of juries, waiver, and several other matters which would seem in themselves to be matters of detail best dealt with by an Act of parliament rather than in a Constitution? Does the Minister agree that the freezing of two years is an arbitrary proposal which, if considered a mere decade ago, would have been at odds with various State crimes Acts around the nation? If so, how does he explain the Government's choice of two years as the convenient dividing line at this time? Can the Minister give any indication of whether it is suggested by the Government that the notion of trial by jury is under attack in Australia at all? Does the Minister agree that any changes to the Federal Constitution ought to be aimed at formulating a broad protective guarantee which reserves to the High Court the right to police the meaning and operation of that provision and that what this proposed new section does is to spell out detail which, by its nature, could well be the subject of different approaches by different State governments? The TEMPORARY CHAIRMAN(Senator Teague) —Order! It being 10.30 p.m., pursuant to sessional order, I put the question: That the Temporary Chairman do now leave the chair and report to the Senate. Senator Harradine —I wish to speak to the motion. The TEMPORARY CHAIRMAN —Under the sessional order, the question is put without debate. Question resolved in the negative. Senator HARRADINE(Tasmania)(10.31) —At this late hour of the night, we are addressing matters of very great importance. It was only in the last quarter of an hour, I believe, that honourable senators realised that we are going to be taken into about an hour of extra time this evening, from now until 11.30 p.m., to attempt to finalise this Bill. I can guarantee that it will never-- Senator Chaney —Nobody is suggesting we will finalise it. Senator Puplick —That is not correct. There is no guarantee of finishing this Bill tonight. Senator HARRADINE —I assure the Senate that that certainly will not happen, because these matters are vital. Senator Chaney —Let us get back to debating them. I think it is a good idea that we debate them. Senator HARRADINE —It is about time that people started consulting around this place instead of just getting into huddles and consulting themselves. It is all very well for a fix-up between the Government and the Opposition of an extension of time for an hour without consulting anybody else. I do not know whether the Australian Democrats were consulted-I certainly was not consulted until I was consulted by Senator Colston for the Government Whip. Senator Chaney —With respect, that is his job. Senator HARRADINE —That is right. But, with respect, when was this deal cooked up? It was cooked up about only 20 minutes ago. Senator Puplick —That is not correct. Senator HARRADINE —When was it cooked up? I know that some people on the honourable senator's back bench did not know about it. As far as I am concerned, it is not good enough to make such deals and expect other people to follow along with them. That is all I have to say. Senator TATE(Tasmania-Minister for Justice)(10.32) —Senator Alston raised several questions; I do not know whether I noted them all. He asked why we chose a period of two years. I thought I had replied to Senator Hill in relation to that. I believe I said at the time that it was the view of the Constitutional Commission that if a lesser period were selected, the number of jury trials would be enormous. But I do not see that as being a primary purpose for selecting two years. In fact, I think it would be rather a wrong purpose. What I wish to emphasise-and went on to emphasise-is that it is the simple case that one has to draw a line at a particular point. It seemed that to be faced with the period of deprivation of liberty for more than two years-or to suffer corporal punishment-meant that that was a rational time to choose, given the fact that, in general, it also seemed to coincide with the range of penalties available to magistrates courts. In other words, generally throughout Australia magistrates can impose a penalty of up to about two years. I know I am generalising. Senator Bishop —Generalising, yes. Senator TATE —I am generalising-but it provides a rational basis, I believe, for selecting more than two years, and that was the view of the Judicial Committee and the Constitutional Commission. Senator Alston raised a question concerning the Crimes Legislation Amendment Act-which is yet to be proclaimed. But the honourable senator will recall that that provides that all offences carrying a penalty of 12 months or more imprisonment are indictable. The honourable senator will recall the passage of that legislation. It has not yet been proclaimed. Senator Alston —Well, reconcile that with your current proposal. That says 12 months; you now say two years. Senator TATE —What we are saying is that, in relation to a provision applying Australia-wide, the setting of the line at more than two years imprisonment is a defensible and rational one. It is a fact that that has been provided for in the Crimes Legislation Amendment Act, but it does not, I think, require that we carry that particular trigger or criterion into the constitutional provision. Senator Alston asked whether trial by jury was under attack at all. I believe it was about a year and a half to two years ago. There were quite serious questions being raised about the jury trial system. I think it was only a bit of a flash in the pan. Senator Alston —By whom? Mick Miller? Senator TATE —Yes. I am not sure, but he may have been amongst those who were speaking at the time. I believe that it does not have to be under severe attack to be worth guaranteeing in these particular instances. In so far as it is an important part of our heritage that persons facing a severe penalty be entitled to have the facts determined by a jury of their peers, it ought to be included in our constitutional arrangements. Senator ALSTON(Victoria)(10.36) —I also asked whether the Minister agreed that a constitution is a document intended to enshrine a system of fundamental principles. If so, how does he reconcile the inclusion of items of detail that are contained in the subsections of proposed section 80, which I suggest would be more appropriately included in an Act of parliament which can therefore be amended to suit local State needs if necessary but are not appropriate in a document that is spelling out grand principles? Senator TATE(Tasmania-Minister for Justice)(10.37) —It is a longish section, but it makes clear, for example, that in relation to the waiver by the accused of trial by jury the State or Territory concerned can make a law regulating the size or composition of the jury or the provision for majority verdicts. It is simply put in to do the type of thing that Senator Alston is suggesting ought to be done-providing that those matters be dealt with under ordinary legislation. Senator ALSTON(Victoria)(10.38) —Proposed section 80 subsection (5) spells out a number of qualifications to the notion of trial by jury. On one view that could allow a jury of three persons to reach a majority decision after two hours deliberation. If one extended the hypothesis, it could allow for a very restricted form of jury to be chosen. All those things seem to be explicitly provided and allowed for. Does the Minister agree with a statement made by a spokesman for the Attorney-General (Mr Lionel Bowen) in response to criticisms of this very section by the New South Wales Council for Civil Liberties that that is not a matter for concern because the High Court of Australia would simply ensure that the notion of trial by jury was determined and would override any State anomalies? Senator TATE(Tasmania-Minister for Justice)(10.38) —I do agree with that. The fact is that a trial by jury has to remain a trial by jury. In the determination of the High Court I am sure that the concept which has been with us since Norman times of a jury of 12 persons to determine questions of fact will be the principal criterion it will use. Senator ALSTON(Victoria)(10.39) —But there are situations where, in a very long trial-take white collar crime-it can be highly desirable to empanel a jury of, say, 15 to allow for persons to be sick or unable to serve and, similarly, to take a verdict from a jury that might have been reduced to 10 as a result of sickness. Other arrangements can also be made for majority verdicts, as currently applies, I think, in at least three of the States. Is the Minister saying that any differences between the States would be encouraged by the Government to be overriden by the High Court? Senator TATE(Tasmania-Minister for Justice)(10.40) —I think that the position is really the contrary. States are to be left free to determine such matters as the size and the composition of juries and the provision for majority verdicts. However, no doubt there would come a point at which the High Court of Australia would say that the provision has departed so far from the concept of trial by jury that it no longer falls within that proper description. Senator Alston —Does the Minister agree that the proposed provision gives no guidance as to where the cut-off point should be? Senator TATE —There is no particular indication as to where that point would be. It would be necessary to rely on the history of trial by jury as we have known it for 900 years. Senator ALSTON(Victoria)(10.41) —I draw the Minister's attention to the Crimes Legislation Amendment Act to which he recently referred, which shifts the onus in relation to offences carrying penalties in excess of 12 months. In view of the proposal here that two years be the benchmark, would the Minister propose that the Crimes Legislation Amendment Act provision be repealed if the referendum question were carried? Senator TATE(Tasmania-Minister for Justice)(10.42) —It may be that the Commonwealth could make its own decision that whilst the guarantee provided for under the Constitution relates to offences which carry the possibility of imprisonment for more than two years or corporal punishment, nevertheless we could, as indeed could the States, provide for trial by jury in other situations, which had not reached that sort of guaranteed trigger. In other words, if it was desired to provide for trial by jury in a case which carried a lesser penalty, that would be quite within the province of the Commonwealth or a State. Senator ALSTON(Victoria)(10.42) —Precisely. Therefore, why is it such a fundamental principle that one should rule off the book at two years if the Minister can envisage situations in which a penalty of nearly 12 months might be sufficient to attract trial by jury? Does that not undermine the very notion of a principle? Is that not really saying that there may well be circumstances in which an offence attracting a 12-month penalty deserves trial by jury whereas there will be other situations in which only an offence carrying a penalty of two years will attract trial by jury. In other words, the principle is very flexible and, therefore, is not a principle at all. Senator TATE(Tasmania-Minister for Justice)(10.43) —We do say that there is reached a point at which the peril facing a particular person, if that person is convicted and sentenced to imprisonment, is of an order which really leads to the conclusion that the punishment is of a severe enough quality to require that the facts be determined by a jury. In this particular proposal we think that when a person is facing imprisonment for more than two years, that point has been reached. However, it does not prevent one from saying in relation to a lesser term of imprisonment that it may be desirable to provide for trial by jury. However, if one is trying to provide an absolute guarantee to Australians, a point has to be selected. A period of more than two years imprisonment is a reasonably chosen point. However, it should not preclude any particular parliament from deciding that, as I say, in a situation of lesser peril, if you like, nevertheless trial by jury might be provided. Senator ALSTON(Victoria)(10.44) —If one is talking about fundamental principles, less than 10 years ago we would have had almost all the States treating 12 months as the cut-off period. The Government has had one advisory committee saying to it that 12 months is an appropriate cut-off period. The Government has the Acts Interpretation Act stating that six months is an appropriate cut-off period. The Government now has the Crimes Legislation Amendment Act stating that 12 months is the cut-off period. In other words, all of those other competing considerations are set against the recommendation of a committee which says two years. By allowing that crimes legislation provision to stay in force, the Government really is saying there could well be matters of principle that merit trial by jury where it attracts only a penalty of 12 months. I therefore ask, for consistency, why the Government should not simply retain that 12 months as its benchmark. I suggest the reason why the Government does not is the very reason that the Judicial Committee gave, that is, that the Government would inflate the number of trials that currently would attract trial by jury. That might not be a revenue neutral proposition that appeals. Nonetheless I suggest that if the Government is interested in principles and not simply in keeping down the cost of trials it would look at the weight of the evidence, which is very much in favour of 12 months rather than two years. Senator TATE(Tasmania-Minister for Justice)(10.46) —It is only a matter of repeating my answer. The question of the burden that might be imposed on the court system if we went down to 12 months is something which did provide some of the reasoning for the Australian Constitutional Commission. It is not for me, and I do not believe for the Government, a primary consideration at all. It is the extent of the imprisonment which a person may be faced with. More than two years seems to be such a peril which should attract this particular guarantee. Senator CRICHTON-BROWNE(Western Australia)(10.47) —Let me continue with the proposition put by Senator Alston. In Western Australia, if my memory serves me correctly, the criminal code provides that all offences which attract imprisonment of six months are indictable offences and require trial by jury. Is it not a reasonable argument that we should pick up the minimum for each State and incorporate that as the benchmark, rather than go for the maximum of two years-- Senator Alston —It is cheaper. Senator CRICHTON-BROWNE —It is cheaper inasmuch as the Government is purporting to offer safeguards and security, but it is diminishing them rather than starting at the base point to ensure that the present position is incorporated in the Government's constitutional amendment. Senator TATE(Tasmania-Minister for Justice)(10.48) —Nothing in this provision will prevent the State of Western Australia from deciding to do that, as it has now, as a matter of response no doubt to its own concern for its citizens and as a consequence of whatever political pressures it might feel require it to make such a decision. It can do so under this referendum proposal. All we are saying is that when the point is reached when the Western Australian Parliament provides for an offence to be punishable by a term of imprisonment of more than two years then the guarantee comes into effect. There is no incompatibility between the two situations. It is obviously not the proposal that the Constitution should impose on the Western Australian Government, an obligation to do what it now does as a result of its own decision. Senator CRICHTON-BROWNE(Western Australia)(10.49) —It is an absolute impertinence for the Commonwealth to assume that it has some divine right to impose its arbitrary figure in the Constitution where already without exception there is proper accommodation in the States. What is it that has led now to this proposal, when trial by jury is guaranteed to the extent that it is legislated for in each State? (Quorum formed) In Western Australia, in general the maximum term of imprisonment which a magistrate may impose is six months. Speaking generally-there may be specific statutes which modify this-in New South Wales, for example, magistrates can impose up to three years imprisonment; in Queensland, two years; South Australia, two years; Tasmania, three years; the Australian Capital Territory, two years; and the Northern Territory, six months. According to the note in front of me, the period in Victoria is not specified. So there are variations amongst the States and two years, as I have said, seems to be a period of sufficient severity to attract a guarantee. Senator ALSTON(Victoria)(10.51) —I break new ground. I refer to the waiver of trial by jury. Proposed new section 80 (5) states: Nothing in subsection (1) prevents the making, or affects the operation, of a law to the extent that the law: (a) permits waiver by the accused of trial by jury . . . At first sight that would seem to be a desirable principle, but it does not specify the conditions under which trial by jury may be waived. The Minister in his second reading speech said: It is not, however, contemplated that waiver of the right to trial by jury would apply in the case of the most serious offences, such as murder or major drug offences. In view of the fact that murder is usually a State offence, how does the Minister suggest that this constitutional provision would operate to preclude a State government from allowing waiver of trial by jury for capital offences? Senator TATE(Tasmania-Minister for Justice)(10.52) —I do not think the second reading speech indicated that there would be some constitutional impediment of the sort spoken about. We are just saying that as a matter of practice and anticipation, in the case of a very serious trial such as for murder or for a very serious drug offence, one would not expect to have waiver of trial by jury by the accused. I think that is perfectly understandable. Senator ALSTON(Victoria)(10.53) —I wish to deal with the provision relating to members of the defence forces. Section 80 (1) makes exceptions for trial for contempt of court or the trial of a member of a Defence Force of the Commonwealth before a court-martial on disciplinary offences. Does the Minister agree that that applies only to serving members of the forces; in other words, that serving members would not be entitled to trial by jury, no matter how serious the offence, whereas former members of the defence forces and even prisoners of war would, as a result, be entitled to trial by jury? Senator TATE(Tasmania-Minister for Justice)(10.54) —The trial of members of the Defence Force before a court-martial under a law relating to the discipline of the Defence Force of the Commonwealth is exempt, so obviously that provision relates to members of the defence forces. Section 61 of the Defence Force Discipline Act 1982 provides that a member of the Defence Force is guilty of an offence if he does any act or omission which, if done in the Australian Capital Territory, would be an offence against the law of the Commonwealth in the Australian Capital Territory or the Crimes Act in its application to the Australian Capital Territory. Under the current law, non-defence related offences committed by defence personnel may be tried before defence tribunals or civil or criminal courts. The Director of Public Prosecutions has put out guidelines relating to the prosecution of Defence Force personnel in relation to non-defence related offences, and those prosecutions will be required to comply with proposed section 80. Senator ALSTON(Victoria)(10.55) —Does the Minister assert that it applies only to serving members and that, therefore, former members, defence civilians or prisoners of war would have an entitlement to trial by jury that would not be one to which serving members would be eligible? Senator TATE(Tasmania-Minister for Justice)(10.55) —As proposed new section 80 (1) says, the exception relates to the `trial of a member of the Defence Force of the Commonwealth before a court-martial'. Obviously the other essentials to which Senator Alston referred-a former member, a defence civilian or a prisoner of war-are not included in that particular exception. The exception relates only to a member. Senator HILL(South Australia)(10.56) —Now that we have learnt that the Government is determined to offer to prisoners a security less than it is the practice of the Supreme Court of the United States of America to offer, I wonder whether the matter might be approached in another way. When we look at the Government's proposed section 80 we find it offers the security of trial by jury to an accused liable to imprisonment for more than two years or to any form of corporal punishment. In other words, it looks also to the quality of the offence in that limited way. I wonder whether the Government might be prepared to consider extending that provision even further and including also the right to trial by jury in any offence that involves an element of dishonesty. It seems to me that there are offences which are going to incur a potential penalty of less than two years imprisonment and for which the defendant should be entitled to the judgment by a jury rather than by a judge or magistrate. Particularly, as I indicate, I have in mind offences of dishonesty, where an assessment must be made of the state of mind of the person, offences that are going to impose upon a convicted person, a person found guilty, a penalty far beyond that which is imposed in terms of imprisonment or a fine: a mark that will stand with that person for the rest of his or her life. Surely in these circumstances, where, as I said, the assessment must be made of the state of mind, the defendant should be entitled to judgment by his fellows. Therefore, does the Government have any objection to amending this provision, as we know the Government is prepared to amend another of its Bills, to add the words `or involving a determination of the element of dishonesty' after the words `corporal punishment'? If it is not prepared to do so, why not? Senator TATE(Tasmania-Minister for Justice)(10.58) —Because we are not picking and choosing between offences or categories or types of offences. We are making a line in accordance with the penalty that might be imposed by the court. I see no real reason to think that a person is going to carry a greater burden through life because he formed a dishonest intent to deal wrongly with somebody else's property than if he formed an intent to abuse some girl by way of indecent assault. Once we start looking to specific intents or some sort of mental state in the accused person which is an essential element of the offence, I think we will find that the particular category suggested by Senator Hill will not necessarily be the only one where a person might carry a terrible burden through life if he formed that particular intent. Senator Hill —You might be able to improve it for me, then. Senator TATE —Not tonight, Senator. Senator HILL(South Australia)(10.59) —There is one other subject raised by Senator Alston that I want to explore a bit further because I think the Government's intention in relation to this provision is important; that is, the provision that nothing in subsection (1) prevents the making or affects the operation of a law to the extent that the law regulates the composition of the jury. It seems to me that there are varying practices in relation to the composition of juries. There is a trend, particularly with fraud cases, to move towards juries of specialists. I am interested to know whether that is what the Government intends to cover by inserting these provisions-to allow the States to provide for juries of specialists. Where will the limitation then lie? For example, in the Government's opinion, would it allow a State to provide for a prerequisite of, say, tertiary qualifications in accounting or law in the composition of its specialist jury of, say, three in a serious fraud case? Senator TATE(Tasmania-Minister for Justice)(11.01) —I was going to agree up to the end. Obviously, composition is an important matter which could well be approached in the way outlined by Senator Hill, by ensuring that a particular jury had the competence to deal with a particularly complex fraud or tax case. I believe that that sort of composition would be available to a State parliament, or indeed the Commonwealth Parliament, in relation to a jury trial. When the honourable senator mentioned a panel of three he was, in my view, getting too far away from the core notion of trial by jury, which, since Norman times, has been a body of 12 persons. I do not think that a panel of three would qualify as a jury. Senator HILL(South Australia)(11.02) —If one believes that the whole notion of a jury is contrary to the idea of specialists determining guilt, does one take it that no security is provided by this constitutional amendment to a person charged with an offence when that person would prefer to be tried by a jury comprising a mixture of skills and experiences rather than particular specialist qualifications? Senator TATE(Tasmania-Minister for Justice)(11.02) —I believe that a State parliament, or indeed this Commonwealth Parliament, will have to make a judgment on that matter and live with the political consequences, if you like. A State parliament, for example, is very consciously being given an ability to determine the composition of a jury. No doubt the State parliament would work it out bearing in mind the possible expectations of an accused, such as Senator Hill has in mind, but also the public interest of ensuring that a competent body of persons determines very complex questions of fact. We are leaving it to the parliament concerned to make that judgment on balance. Senator HILL(South Australia)(11.03) —I ask the Minister to confirm whether, if a person were charged with and convicted of three separate offences, each incurring a maximum penalty of two years imprisonment, that person may well find that, as the court does not have to provide for concurrent sentences, he comes out of the trial with a six-year term of imprisonment, but yet he does not have the security that is provided with a trial by jury. Senator TATE(Tasmania-Minister for Justice)(11.04) —The provision relates to the trial of a person for an offence, so each offence would be taken separately. The report of the Advisory Committee to the Constitutional Commission on the Australian Judicial System says that liability to cumulative sentences-I think that Senator Hill said `concurrent'-for separate offences should not attract a guarantee, although a charge attracting a statutory maximum of more than two years because of prior convictions would fall within the proposed test. We are not looking at the cumulative impact. In terms of Senator Hill's example, we are looking at each offence separately. Senator HILL(South Australia)(11.05) —It does not give security, therefore, but it still leaves the question as to why it should not attract that guarantee. That question seems to have been left open by the Advisory Committee. Perhaps the Minister will let us know the Government's reason why the security is not to be given in those circumstances. Senator TATE(Tasmania-Minister for Justice)(11.05) —It is true that the question of cumulative sentences is not dealt with in the proposal by way of providing a guarantee to the accused. The provision looks to the trial of a person for a particular and single offence. The possibility of an accumulated sentence for a series of convictions is not dealt with by way of a guarantee. (Quorum formed) Question put: That the clause be agreed to. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 34 Noes . . . . . . . . . . . 32 —— Majority . . . . . . . . . 2 —— Aulich, T. G. Gietzelt, A. T.Beahan, M. E. Giles, P. J.Black, J. R. Haines, J.Bolkus, N. Jenkins, J. A.Burns, B. R. McMullan, R. F.Childs, B. K. Macklin, M. J.Coates, J. Maguire, G. R.Collins, R. L. Morris, J. J.Colston, M. A. (Teller) Ray, RobertCook, P. F. S. Reynolds, M.Cooney, B. C. Richardson, G. F.Coulter, J. R. Sanders, N. K.Crowley, R. A. Schacht, C. C.Devereux, J. R. Sibraa, K. W.Devlin, A. R. Tate, M. C.Evans, Gareth Walsh, P. A.Foreman, D. J. Zakharov, A. O. Alston, R. K. R. McGauran, J. J.Archer, B. R. MacGibbon, D. J.Baume, Michael Messner, A. J.Bishop, B. K. Newman, J. M.Bjelke-Petersen, F. I. Panizza, J. H.Boswell, R. L. D. Parer, W. R.Calvert, P. H. Patterson, K. C. L.Chaney, F. M. Puplick, C. J. G.Chapman, H. G. P. Reid, M. E. (Teller)Crichton-Browne, N. A. Sheil, G.Durack, P. D. Short, J. R.Hamer, D. J. Tambling, G. E. J.Harradine, B. Teague, B. C.Hill, R. M. Vanstone, A. E.Knowles, S. C. Walters, M. S.Lewis, A. W. R. Watson, J. O. W. Jones, G. N. Brownhill, D. G. C.Button, J. N. Baume, P. E.McKiernan, J. P. Stone, J. O. Question so resolved in the affirmative. Clause 3. Senator TAMBLING(Northern Territory)(11.14) —I have previously, in both the second reading stage and in the committee stage, addressed many questions to the Minister for Justice (Senator Tate) with regard to the implications of the acquisition of property on just terms. I am particularly concerned that the notes in the explanatory memorandum do not give any answers to those very issues that were raised by the Chief Minister of the Northern Territory, Mr Hatton, in his telex to the Prime Minister (Mr Hawke). That telex was incorporated in Hansard during the second reading debate. Of course, it was quite lengthy. It raised many issues that need to be addressed and properly answered by the Minister. This evening I have also raised the question of how the Australian Capital Territory (ACT) will be treated with regard to the future acquisition of property on just terms. With the proposals to take self-government many steps further, it is very important that the 300,000 people who live in Canberra can rely on this Government to understand fully and to know that the body politic for self-government in the ACT is not, in fact, going to be discriminated against. I look to the Minister for his answers. Senator TATE(Tasmania-Minister for Justice)(11.15) —In relation to the Territories, if either the Commonwealth or a Territory legislature makes provision for the acquisition of property from a person in a Territory-for example, one of the 300,000 residents in the Australian Capital Territory (ACT) of whom Senator Tambling spoke-that acquisition has to be on just terms. The same relates to a body corporate. In relation to an acquisition from the body politic-that is, the Northern Territory Government, or the ACT government if that comes to pass-the question of acquisition of property from that particular entity will be governed by other relationships determined at less than a constitutional guaranteed level between the Commonwealth and that particular Territory entity. That will be determined, as it is at the moment, by way of ordinary legislation which, in the case of the Northern Territory Government, provides for acquisition on just terms. So it will be done by way of legislation to give flexibility in relation to the various stages and types of Territories which are involved in the Australian political system. Senator TAMBLING(Northern Territory)(11.17) —I ask the Minister for Justice (Senator Tate) to consider further the implications of this proposal with particular regard to the Australian Capital Territory (ACT). I am certainly aware that the Commonwealth has on several occasions in recent years legislated to avoid the payment of compensation on specific Territory acquisitions, for example, Aboriginal land granted out of Territory land, the Kakadu National Park, the ban on mining operations in Kakadu and the Petermann land boundaries. I find that the concepts that the Minister is advancing, that the Commonwealth can, if it chooses, acquire from a body politic other than on just terms is, in fact, very discriminatory against average Australian citizens. I fear for the people of the ACT if a similar implication can arise. I would think that the situation is very similar to those issues that were canvassed and raised very properly in this place and in Canberra by Senator Vanstone with regard to other weaknesses and flaws that were ascertained with regard to these constitutional referendum Bills as they related to the ACT. Here again we see a very different set of principles and concepts being developed for the Northern Territory which is clearly on a path towards statehood. I do not believe that the contents of the explanatory memorandum will be fairly reflected in the referendum that will be put to all the people of Australia. The long title of the Bill states: An act to alter the Constitution to extend the right to trial by jury, to extend freedom of religion, and to ensure fair terms for persons whose property is acquired by any Government. The Minister can hang his hat if he likes on the word `person' which appears in that particular title, but any person who is a citizen of a Territory, and therefore is a member of that body politic, is being discriminated against very deliberately and constitutionally by this Government. As they move towards self-government the people of Canberra need to be very fearful of the land acquisition powers that will now be vested in the Commonwealth under these provisions. I would like the Minister to state clearly whether it is the Government's intention to exclude particularly the Canberra self-governing body, its body politic, and to put the citizens of Canberra at a severe disadvantage, just as the citizens of the Northern Territory are, apropos any citizen of any State? Senator TATE(Tasmania-Minister for Justice)(11.20) —I want to make it absolutely clear that the citizens of the Northern Territory or of the Australian Capital Territory (ACT), should it be the case that their property is sought to be acquired by the Commonwealth, fall within the constitutional guarantees and will be provided with fair compensation in relation to the acquisition of that property. It is in relation to the governments of the Territories that the constitutional guarantee does not apply. The governments of those Territories-and an example is the ACT should any arrangement be made to allow for self-government to be established-should be aware that the constitutional guarantee would not extend to dealings between the Commonwealth and those bodies in relation to the acquisition of their properties by the Commonwealth. Senator TAMBLING(Northern Territory)(11.21) —We are seeing a typical example of the Commonwealth imposing severe restrictions on the power of the States and Territories while, at the same time, providing nice exceptions for the Commonwealth because it feels it has some fathering role with regard to the Territories. I would like to draw a further matter to the Minister's attention. If the Commonwealth or the High Court of Australia recognises the Aboriginal antecedent titles over property, the Territories, the States and the Commonwealth will be locked into, on any view, what must be regarded as massive compensation by the very issues now being raised in this legislation. I would like the Minister to state what precedents the Government believes will flow from this legislation, particularly with regard to the compensation and Aboriginal antecedent title. Senator TATE(Tasmania-Minister for Justice)(11.23) —The High Court has established certain principles in relation to the definition of property. If some form of title comes within the scope of the term property as defined by the High Court, of course the Commonwealth will have to provide compensation in accordance with the just terms provision. That is all that can be said. Senator TAMBLING(Northern Territory)(11.23) —I am amazed at the admission by the Minister that it is obviously the Government's intention to go down the path of providing massive compensation in the instances of the creation of Aboriginal antecedent titles. I also ask the Minister: In what way do the proposals that have been suggested by the Minister for Aboriginal Affairs, Mr Hand, in the preamble proposed to the legislation to create the new Aboriginal and Torres Strait Islander Commission confirm the intent of the Government to ensure that the provisions put forward in that preamble will create an opportunity for both compensation and Aboriginal antecedent title? Senator TATE(Tasmania-Minister for Justice)(11.24) —I think we are straying a long way from the Bill to alter the Constitution in relation to the acquisition of property. I have already said-and it is all I am prepared to say-that should the High Court decide that any particular relationship of a person to a piece of land can be said to be a property relationship, the acquisition of that property will carry with it the requirement that just terms be provided by way of compensation to the person whose property has been acquired. I am not going to comment on any particular instance where that may prove to be the case. Question put: That the clause be agreed to. The Committee divided: (The Chairman-Senator D. J. Hamer) Ayes ... 34 Noes ... 31 Majority ... 3 AYES Aulich, T. G. Giles, P. J. Beahan, M. E. Haines, J. Black, J. R. Jenkins, J. A. Bolkus, N. McKiernan, J. P. (Teller) Burns, B. R. McMullan, R. F. Childs, B. K. Macklin, M. J. Coates, J. Maguire, G. R. Collins, R. L. Morris, J. J. Colston, M. A. Ray, Robert Cook, P. F. S. Reynolds, M. Cooney, B. C. Richardson, G. F. Coulter, J. R. Sanders, N. K. Crowley, R. A. Schacht, C. C. Devereux, J. R. Sibraa, K. W. Devlin, A. R. Tate, M. C. Foreman, D. J. Walsh, P. A. Gietzelt, A. T. Zakharov, A. O. NOES Alston, R. K. R. MacGibbon, D. J. Archer, B. R. Messner, A. J. Baume, Michael Newman, J. M. Bishop, B. K. Panizza, J. H. Bjelke-Petersen, F. I. Parer, W. R. Boswell, R. L. D. Patterson, K. C. L. Calvert, P. H. Puplick, C. J. G. Chaney, F. M. Reid, M. E. (Teller) Crichton-Browne, N. A. Sheil, G. Durack, P. D. Short, J. R. Hamer, D. J. Tambling, G. E. J. Harradine, B. Teague, B. C. Hill, R. M. Vanstone, A. E. Knowles, S. C. Walters, M. S. Lewis, A. W. R. Watson, J. O. W. McGauran, J. J. PAIRS Jones, G. N. Brownhill, D. G. C. Button, J. N. Baume, Peter Evans, Gareth Stone, J. O. Question so resolved in the affirmative. Clause 4. Senator CHANEY(Western Australia-Leader of the Opposition) —I move: That the Committee report progress and seek leave to sit again. I seek leave to speak to that motion. Leave granted. Senator CHANEY —The Government approached us earlier today about negativing the adjournment and there was a series of discussions about it. In the course of those discussions I made it clear that we would be prepared to have some limited extension of the adjournment, bearing in mind that we are sitting four days in a row. As the Australian Democrats have just pointed out to me, we negatived the adjournment effectively on Thursday by extending the sittings last week, again on Monday and again today. I made clear to the Deputy Whip that the basis on which we were prepared to negative the adjournment was that it would be for about an hour. When the question of finishing a Bill was raised I also made it clear that that was not a matter that could be guaranteed; one might hope that it would happen, but it could not be guaranteed. I think that it was some hour and a half before 10.30 p.m. that that discussion took place. I had no further communication from the Government Deputy Whip, or indeed anyone from the Government, but we negatived the adjournment at 10.30 on that basis. That is why I have now moved that the Committee report progress. Senator McKIERNAN(Western Australia) —by leave-Part of what Senator Chaney has related to the Senate is factual. There was an approach by him to the Deputy Whip, Senator Maguire. That approach was relayed to me in my capacity as Acting Whip. I checked with Senator Chaney that the offer had been made. That will clarify the statement that there was further contact with the Government on the matter. I clarified with Senator Chaney what the offer was. I then took that back to my Leader in this chamber, Senator Evans. Unfortunately, Senator Evans was not present in the chamber or in the House and I was unable to make contact with him prior to 10.30 when the adjournment was to be negated. Shortly before 10.30 I approached Senator Chaney and told him that I was not in a position either to accept or to reject the offer that the Opposition parties had made to us in terms of the negativing of the adjournment. I also relayed that message to the Opposition Whip and, in turn, to the Australian Democrats Whip, because, as every honourable senator in the chamber would know, I hold this position in an acting position. I do not believe that in that acting capacity, in the heat of the present strenuous debate in this chamber, which has been going on for the past three weeks, I should seek to exercise an authority without at least seeking to check with the Manager of Government Business (Senator Gareth Evans)-which I was waiting to do. We have played the game fair all the way down the track on this thing. We have played it right even down the track. There has been no misrepresentation from this side of the chamber on this matter whatsoever. We have played it fair. We will continue to play it fair, irrespective of the length of time that the debates go on. We have got some integrity on this side of the chamber. We will maintain that integrity right to the end of these sittings. Question put. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 32 Noes . . . . . . . . . . . 34 —— Majority . . . . . . . . . 2 —— Alston, R. K. R. McGauran, J. J.Archer, B. R. MacGibbon, D. J.Baume, Michael Messner, A. J.Bishop, B. K. Newman, J. M.Bjelke-Petersen, F. I. Panizza, J. H.Boswell, R. L. D. Parer, W. R.Calvert, P. H. Patterson, K. C. L.Chaney, F. M. Puplick, C. J. G.Chapman, H. G. P. Reid, M. E. (Teller)Crichton-Browne, N. A. Sheil, G.Durack, P. D. Short, J. R.Hamer, D. J. Tambling, G. E. J.Harradine, B. Teague, B. C.Hill, R. M. Vanstone, A. E.Knowles, S. C. Walters, M. S.Lewis, A. W. R. Watson, J. O. W. Aulich, T. G. Giles, P. J.Beahan, M. E. Haines, J.Black, J. R. Jenkins, J. A.Bolkus, N. McKiernan, J. P. (Teller)Burns, B. R. McMullan, R. F.Childs, B. K. Macklin, M. J.Coates, J. Maguire, G. R.Collins, R. L. Morris, J. J.Colston, M. A. Ray, RobertCook, P. F. S. Reynolds, M.Cooney, B. C. Richardson, G. F.Coulter, J. R. Sanders, N. K.Crowley, R. A. Schacht, C. C.Devereux, J. R. Sibraa, K. W.Devlin, A. R. Tate, M. C.Foreman, D. J. Walsh, P. A.Gietzelt, A. T. Zakharov. A. O. Brownhill, D. G. C. Jones, G. N.Baume, Peter Button, J. N.Stone, J. O. Evans, Gareth Question so resolved in the negative. Senator BISHOP(New South Wales)(11.42) —When we began the debate on clause 1 of this Bill I indicated that I was of the opinion that the mixture of propositions that had been put together in question 4 and dealt with in this Bill had been put together deliberately in an attempt to camouflage the real aim of the question, which is to attack state aid for private schools, for religion based non-government schools. I pointed out, as did Senator Harradine, that the question must stand or fall as one, that it is not open to anyone to say that he or she is in favour of the trial by jury proposition or the acquisition of property proposition and against the religion proposition. Because of the linking of these issues, it is not possible to separate out a single question. Therefore, as I said earlier, the questions stand or fall together. A person who disagrees with any of the three propositions must vote no to question 4. As this is the committee stage and we are looking at the technical aspects of the Bill, I want to ask three questions. The first concerns what the Bill attempts to do, and I will look at what the explanatory memorandum has to say on that point. Secondly, I want to deal with why the Bill falls short of what it sets out to do and then, thirdly, to examine the consequences of that falling short. I direct the Committee's attention to the following statement in the explanatory memorandum: There is, however, no change-in the wording of section 116-that would render the decision of the High Court in Attorney-General (Victoria) (at the relation of Black) v. Commonwealth (1981) 146 CLR 559 inapplicable to the new section. That is a very accurate statement, but what clever wording! It says that the case will not be inapplicable. It most certainly will not be inapplicable. It will be most applicable, but the effect of that will be to reverse the situation that we got to when Black's case was deliberated upon and a majority decision of the judges, the exception being Mr Justice Murphy, found for the defendants and found that state aid to private schools did not breach the Constitution. A close scrutiny of the judgments in that case bear out what I have said. I would particularly like to deal with the judgments of the then Chief Justice, Sir Garfield Barwick, Mr Justice Stephen and Mr Justice Mason, the current Chief Justice. All three of those judgments deal with the words `make any laws for'. Sir Garfield Barwick at page 583 of his judgment said: A law which in operation may indirectly enable a church to further the practice of religion is a long way away from a law to establish religion as that language properly understood would require it to be if the law were to be in breach of S. 116. He said further: The law must be a law for it, i.e. intended and designed to set up the religion as an institution of the Commonwealth. Mr Justice Stephen said in the judgment at page 606 in relation to the said section: the conjunction of `establishing' with `law' with `religion' gives it a particular meaning . . . to speak of a religion being established by the laws of a country may well be to include much more than the act of according material recognition and status to a set of beliefs, a system of moral philosophy or particular doctrines of faith; it would certainly include the recognition of a particular religion or sect, with its priestly hierarchy and tenets, as that of the nation. Mr Justice Mason really made the bottom line statement when he said at page 617: . . . as I have already indicated, the principal obstacle to an acceptance of the plaintiffs' argument lies in the words `any law for establishing any religion'. He went on to say: the form of religious inequality which has been forbidden by s. 116 is that form of religious inequality which is expressed by the critical words `any law for establishing any religion'. The important point is that the proposed amendment to the existing section 116 deletes the words `make any laws for' and makes a corresponding grammatical alteration to the operative words `establishing, imposing and prohibiting'. The explanatory memorandum contends that the new wording simply extends the prohibition contained in section 116 to Executive action. In the judgments that I have already mentioned, at page 580 the Chief Justice dealt with the question of subsidiary legislation, when he said: The prohibition will include such subsidiary legislation which is within the authority of an Act of the Parliament but which in itself offends the terms of the section. Thus the Government must be contemplating actions other than delegated legislation, whether or not it is brought into being by executive action. On the matter of administrative function, the Chief Justice said at pages 580 to 581: The next observation I wish to make as to s. 116 is that it is directed to the making of law. It is not dealing with the administration of a law but, if that administration is within the ambit of the authority conferred by the statute, and does amount to the establishment of a religion, the statute which supports it will most probably be a statute for establishing a religion and therefore void as offending as against s. 116. Thus the concern for Executive action breaching the prohibition is not sustained. I was interested to hear earlier tonight, in answer to questions, Senator Tate say that he was of the opinion that under the Acts Interpretation Act the explanatory memorandum, as it would accompany an Act, as he described it, would be pertinent to a subsequent interpretation of the Constitution. That is not necessarily a proposition with which I would agree, but it is one that he put forward. Thus I think that it is particularly important to challenge, firstly, the statement in the explanatory memorandum that it is merely meant to extend the prohibition in existing section 116 to Executive action. That is not sustained. Secondly, Black's case, which is the definitive authority in this area, would remain applicable or, in the terms of the memorandum, would not be inapplicable to new section 116. Before I go back to the implications of Black's case for the new wording of the section, I would like to say that an overriding concern comes through on the proposed alterations, and that is the concept of extending religious freedom and the necessary fetters which must apply to all freedoms within a democratic society. The overriding concern with the concept of extending religious freedom is the legitimate desire of a society to have religious practices not offending against established interests and freedoms. That was acknowledged by the Constitutional Commission when it said, at page 624 of volume II of its report: Like all freedoms, however, freedom of religion cannot be absolute. It must be qualified at times by other social interests and freedoms. The present provision is satisfactory. The proposed alterations render the law uncertain. Two examples of unacceptable religious practices spring to mind. I have already mentioned one in my speech at the second reading stage. I brought to light the practice of a particular Muslim sect of female circumcision designed to desensitise young girls. The second is a more recent case which came to light in a report in the Age newspaper of 18 May dealing with a case that took place in Melbourne on 27 March 1987 when a man chained his wife to a bedstead and abused and used her in a sexual way as were his rights, he pleaded, under the Koran by way of atonement for his wife's so-called infidelity. He was found guilty of the offence of assault. When the jury had rendered its verdict, the judge said: And, in so far as the cultures and religious beliefs of members of the community permit serious offences against the law, then the rule of law must take precedence and further efforts must be made to achieve a valid integration. He was found guilty of assaulting and unlawfully and injuriously imprisoning the woman and detaining her against her will. The offence occurred between 28 and 30 March 1987 and the jury rendered a guilty verdict. That sort of behaviour is unacceptable in the Australian community. Yet, by the so-called extended freedoms, it is conceivable that that sort of so-called freedom of practise of religion could be protected in the guise of a guaranteed freedom. The Constitutional Commission's report contains those concerns expressed by the Advisory Committee when it stated in volume II that the Advisory Committee recognised the possible implications that such an extension of religious freedom could have on other legitimate State activities, particularly in the field of State education; for example, where a State education Act requires the registration of schools. However, the Advisory Committee was confident that the courts would resolve any problems that might arise. To again render such a fundamental question of state aid uncertain, as the report admits it would do, and hope that it will work out all right is a risk that this nation cannot afford to run. The point is that the state aid issue raged in this country, as did the question of sectarianism generally, for over a decade. There are those in the Australian Labor Party who are as committed as ever to getting rid of state aid to private schools, to religious based schools. Indeed, Mr Halfpenny and Mr Hartley were both original plaintiffs in Black's case. Already there has been an increase in the number of children attending independent, religious based schools. It is projected that, by 1990, 29 per cent of school age children in primary and secondary education will be in private independent schools. So there are plenty of reasons to fire up the anti-state aiders. I think it is well to remember an article in the National Times. That was written in 1979 by one Robert Milliken. The article reads: Having failed by political pressure to destroy government financial support for Church Schools, the opponents of state aid have launched a final make-or-break challenge in the High Court. If they succeed in ending state aid then the system of Church Schools in Australia, as we know it, will disappear. If they fail, then the battle . . . may be finally put to rest. They did fail, but some people never give up. This proposed amendment could mean that we would again see all the bitterness rage. As long as section 116 remains unchanged, state aid to non-government church-based schools is protected. Should the fourth question be passed and the section be changed, we will render uncertain the future of state aid for schools in this country. The law as it is now is certain. The change that this Government intends to bring in renders it uncertain. (Quorum formed) Senator TATE(Tasmania-Minister for Justice)(11.59) —It might be useful, given the length of Senator Bishop's contribution, to try to deal with some of the points before they completely fade from memory. We ought to put things in perspective. The fact is that the provision of section 116 of the Constitution has only applied obviously to restrict the Commonwealth making laws in ways which are prohibited by that section. Only a few years ago, in mid-1984, the South Australian Supreme Court case entitled Grace Bible Church Inc. v. Reedman was well publicised. It came as a surprise to many people. It was only then that the general Australian populace became aware, as did many religious leaders that I know, that the common law did not provide sufficient protection against a State parliament which wished to infringe on the religious freedom of the State's residents. Senator Walters —Which State has done anything like that? Senator TATE —The Grace Bible Church was claiming that it was done in this instance by the South Australian Government in the guise of the educational authority which had the task of licensing non-government schools. Senator Harradine —What was the decision? Senator TATE —The decision was that the common law has never contained a fundamental guarantee of the inalienable right of religious freedom of expression, nor has such a right ever been created in South Australia. Even if it had, such a right could have been invaded by Act of Parliament of the State. That led to the dismissal of the appeal by the Grace Bible Church against its conviction for contravening section 72f of the Education Act in the Adelaide magistrates court. Senator Crichton-Browne —Millhouse said in his judgment, `Thankfully, ours is still a democratic country and its supremacy accordingly may be often curbed politically'. In other words, the constraints of the democratic society-- The CHAIRMAN —Order! Senator TATE —I do recall Mr Justice Zelling, who was the first judge to deliver a judgment in the case, making a point. Unfortunately, I have not marked any quotes by Mr Justice Zelling but Mr Justice White said: The common law has always recognized the supremacy of parliaments . . . I think that point needs to be emphasised. He went on to say: There are no fetters upon the power to make laws affecting religious freedom. This is a point that comes through the judgments. Mr Justice White put it well on page 582 of Australian Law Reports. He stated: As I said, the common law has never contained a fundamental guarantee of the inalienable right of religious freedom and expression. Rather, the common law has supported the supremacy of the Parliament. I think it was in view of that decision in particular that persons were led to consider that the sort of protection of the dignity of the individual which is provided for under section 116 in relation to laws made by the Commonwealth ought to be extended in a way which gives protection against the use of the lawmaking power by a State parliament or indeed its executive power. The need to give to our Australian people, wherever they may be and under whichever jurisdiction they happen to find themselves-whether it be Commonwealth or State-that sort of protection we think is important. Obviously the framers of the Constitution thought that it was so important that it was placed in section 116 of the Constitution. Senator Walters —They are different words, aren't they? Senator TATE —The change of language is meant to extend the freedom by not confining the protection offered by the section to occasions when the freedoms are infringed by a law passed by a parliament. We say that there could be executive action and we are just, out of an abundance of caution, covering the situation. There could be executive action which infringed on those freedoms or attempted to establish a religion. In that situation we say that also ought to be prohibited and rendered unconstitutional. The change of language is designed to embrace a much wider range of possible government activity than would be the case if one spoke about only the making of laws, which is simply the legislative arm of government. Senator Bishop is quite correct in saying that the Defence of Government Schools (DOGS) case was an absolute landmark case. Senator Bishop will be aware that the decision which permitted the funding of independent schools was made in the face of the claim that to do so was, on the part of the Commonwealth, to make a law for establishing any religion. The High Court of Australia rejected that particular argument. The explanatory memorandum states: There is, however, no change that would render the decision of the High Court in Attorney-General (Victoria) (at the relation of Black) v. Commonwealth (1981) 146 CLR 559 inapplicable to the new section. It is believed that the crucial decision in the DOGS case was that the section in relation to prohibition-shall not make any law for prohibiting the establishment of any religion-has, as its core, the notion of setting up an official religion or church, or giving a particular denomination some particular status within the society. That was important because one was dealing with a law of the Commonwealth. We are simply saying that by deleting those words and extending the scope of the protection to embrace Executive action also of a kind that might not be embraced by the words `shall not make and law for' does not do away with the essence of the decision in the DOGS case, which was to do with the interpretation of establishing any religion along the lines, as I said, of setting up an official religion or giving a particular religion or denomination some specific status within society. (Quorum formed) The Constitutional Commission, in its first report dated 19 April 1988, says in relation to the sort of clause that we are now discussing: We do not intend the proposed alteration to section 116 to affect the legitimate legislative capacity of the States and Territories. Section 116 would prevent- as the amendment has been proposed- a State or Territory from passing a law to establish an official Church or to impose a religious test as a qualification for any public office. On the other hand, it would not affect the provision of State or Territory aid to independent schools, nor would it prevent a State or Territory from maintaining appropriate educational standards. So the Constitutional-- Senator Harradine —Go on. Senator TATE —It continues: Balanced against the individual's right to freedom of religion is the legitimate right of the State or Territory to maintain adequate standards of instruction. Where conflicts arise we believe that the courts will be able to differentiate between religious activities and those activities which properly become subject to regulation by educational authorities. Senator Harradine —You would leave it up to a bench of Murphys, would you? 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator TATE —No, but I believe that the decision in the DOGS case-where we have six of the seven judges putting down a decision which made it very clear that the funding of independent schools with a religious ethos was compatible with the prohibition on the Commonwealth's legislative power as contained in the present section 116-as mentioned in the explanatory memorandum, will help the judges, in any future decision in relation to the new section 116, to adopt a like interpretation. That is a reasonable expectation in relation to that matter. Female circumcision is an important matter. But it is clear, as the Jehovah's Witnesses case in the Second World War demonstrated, that there is a balancing in relation to any rights in our society and that the claim that one is acting at the behest of some religious principle or dictate is not sufficient to override society's ordinary interest in maintaining itself either against an external aggressor or as a society which is regulated by criminal law and criminal codes. I do not want to make any particular opinion or judgment in relation to female circumcision, but in so far as some ethnic communities in Australia are concerned I do not know whether they claim the Muslim religion as their reason for imposing this practice on young females or whether it is not rather something that derives from a certain cultural background. I have certainly understood from my reading that that is the case-- Senator Bishop —It is a Muslim sect. Senator TATE —Yes, I know, and people who practise this come from cultures which are Muslim. I believe the matter is more tribal, if I may put it that way, than religious. But that is beside the point. If the type of operation involved is a severe mutilation, then so far as that assault on the young woman is concerned I believe the court would have the scope to make a decision as to whether the interests of the community in the maintenance of its ordinary criminal laws overrode the claims about freedom of religion. Indeed, in relation to the situation of the woman being tied up and beaten-- Senator Bishop —Chained. Senator TATE —And for some long time-- Senator Bishop —Three days. Senator TATE —Yes, and beaten, then I do not believe that, on the sorts of principles-- Senator Bishop —What you believe is not terribly relevant. Senator TATE —I am saying that it is not unfounded because in the Jehovah's Witnesses case it was made clear by the High Court that there is a balance between the right of a person, in his own mind, to express his religious philosophy in activities without let or hindrance in order to satisfy his religious scruples, and the interests of society in maintaining its proper provision for the protection of persons against criminal activity such as the sort of wounding and battery and forced imprisonment that the honourable senator is describing. The CHAIRMAN —Order! The Minister's time has expired. Wednesday, 1 June 1988 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator BISHOP(New South Wales)(12.14 a.m.) —I would like to make three points that arise from what the Minister has had to say. Firstly, he talked about what the future may hold for us in terms of what courts may decide in the future. Instead of relying on the settled law as it is now established under the present section of the Constitution, he speculated upon what the changed circumstances may be and was full of conjecture and beliefs and hopes that he may be right in his opinion. The second matter is Black's case, the DOGS case. Each of the decisions of the justices that I mentioned earlier-that is, Barwick, Mason and Stephen-rested upon the fact that section 116 provides for the making of laws for a particular purpose. In each of their decisions they used those words and said that their decision was hinged on those particular words being in the section. The third point relates to the American experience. Black's case held that the American experience, as it has been interpreted over the decades, is not relevant to the interpretation of section 116 as it presently stands. Indeed, Mr Justice Mason stated: What is important for our purposes is that the interpretation of the clause in the First Amendment- that is of the United States Constitution- which was accepted at the end of the nineteenth century was that expressed by Cooley and Storey. Cooley, in his Principles for Constitutional Law, third edition, at page 224, wrote: By establishment of religion is meant the setting up of or recognition of a state church, or at least the conferring upon one church of special favours and advantages which are denied to others. Storey wrote in Commentaries on the Constitution of the United States, fifth edition, in 1891: The real object of the amendment was . . . to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give up to a hierarchy the exclusive patronage of the national government. Mr Justice Mason said about that: It is that interpretation- that is, the interpretation of Cooley and Storey- which the framers of our Constitution would have had in mind when they framed S.116 and this, no doubt, was one reason why Quick and Garran (Annotated Constitution of the Australian Commonwealth) adopted it as an acceptable construction of the first prohibition contained in the section. The important thing is that once we change the section that prohibition against recent interpretations of the American experience is negated. Consequently, in the context of the prohibition against the establishment of religion we could see the situation where the American experience indeed becomes our experience. As I said right at the beginning, my belief is that the real reason for this particular question being inserted with two other questions is to try to camouflage the real intent of the government which is to attack State aid for non-government schools. The affect of removing those words and removing the protection that the law has given to State aid for private schools will be, in effect, to get rid of that aid and to negate the choice in education that we presently have. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator TATE(Tasmania-Minister for Justice)(12.18 a.m.) —I just wish to refute that last statement of some secret or supposed reason for the inclusion of this particular provision in the proposed referendum. Indeed, that does not sit very easily with the explicit indication to the High Court of Australia as an extrinsic aid of the belief of the Government in the explanatory memorandum that no change would render the decision of the High Court in the Council for the Defence of Government Schools (DOGS) case inapplicable to the new section. We believe that the decision is applicable to the new section. The decision is that the American line of interpretation is not the line which is taken up by the words of our constitutional provision but rather, as Senator Bishop indicated from Quick and Garran, that from the earliest days it has been understood that the words carry the meaning which the honourable senator has also quoted from various judgments in the DOGS case. That is the strong belief of the Government in relation to the interpretation of this clause. I reject it utterly. It is so incompatible with everything that has been achieved politically in Australia since Mr Kim Beazley, Snr, brought about the funding on a great scale of independent schools by the Commonwealth Government, which was then a Whitlam Government. It is so incompatible with everything that this particular Party and Government have done in relation to that funding that I believe the honourable senator's charge does not have any substance whatsoever. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator BJELKE-PETERSEN(Queensland)(12.20 a.m.) —The Committee is now considering the third aspect of the Constitution Alteration (Rights and Freedoms) Bill 1988. I believe that the question covering this aspect, along with the other two aspects of this Bill, has been cleverly worded. I believe also that the long titles of the other Constitution Bills too have been worded in a way that will deceive the Australian electors. At this time of night perhaps I will not go over all those. When we look at the question attaching to the Constitution Bill we are presently discussing, we might ask: Who could possibly be against voting for the right of freedom of religion, or, indeed, the right to trial by jury or the right to fair compensation for property acquired by the Government? However, those rights already exist within the Constitution. I believe that once one starts to write down the rights and spell them out it limits them. They become open to misinterpretation, if not now at least some time in the future. Of course, that is my concern. I believe that my concern will be shared by the vast majority of people in Australia. Senator Burns —By whom? Senator BJELKE-PETERSEN —It would not be shared by Senator Burns. I am certainly not aware of any unrest in the community resulting from religious persecution or people's right of religious determination. I ask the Minister why the people of Australia should be asked whether they want the right of freedom to religion when under common law they already have it. That is something I would like to know. What new freedom will we have that we do not already enjoy now? Those are some of the questions I would like the Minister to answer for me, if he could do so. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator TATE(Tasmania-Minister for Justice)(12.22 a.m.) —I believe that most honourable senators would believe that the rights relating to religious beliefs are rights which inhere in us as individuals and are not, as rights, bestowed on us by governments. Whether governments bestow them or not, we would still have the right to form a belief as to the adherence we ought to give or not to give to some supreme principal or deity or whatever. They are rights that inhere in us as individual human beings and are part of our dignity as human beings. However, given the temptation which governments sometimes fall to, it is important occasionally to note down those inherent rights so that they can be properly recognised and, by being written down and entrenched in a fundamental document such as the Constitution, act as a brake and as an impediment or fetter on governments which would interfere with that right. Senator Bjelke-Petersen quite correctly pointed out that that is the case in relation to the Commonwealth, in so far as the Parliament makes laws. That has been provided for in section 116 of the Constitution. Senator Bjelke-Petersen may not have been here when I mentioned the Grace Bible Church case in South Australia. The South Australian Supreme Court made it clear, as indeed it is the case, that the common law does not itself have the capacity to recognise and protect that right against a State parliament or government which wishes to infringe on it. It is because of that weakness of the common law, which may come out of its English history, where, of course, there was an established religion over many centuries but where, as the honourable senator would know, it took Acts of Parliament to extend religious freedom to Catholics and dissenters-it took the Parliament to do that; it was not a common law right that could be asserted-that it is not as strong as perhaps the honourable senators and I would wish in that regard. Therefore, it is thought to be appropriate to provide for the State parliaments and governments to be bound in the same way as is the Commonwealth. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator BJELKE-PETERSEN(Queensland)(12.25 a.m.) —I thank the Minister for his answer. I just wonder whether it is not the case that the States ought to be able to do it themselves rather than having the Commonwealth Government do it for them. I believe the proposal we are dealing with now could mean that a Bill of Rights will be brought in in an underhanded way, through the Constitution. This is something we have to look at, particularly in view of the fact that some years ago so many people told us in no uncertain terms that they did not want a bar of a Bill of Rights. As I have said, this evening we all have to think about human rights. I turn to the part of the Bill relating to religion. We have to realise that the Bill provides: The Commonwealth, a State or a Territory shall not establish any religion, impose any religious observance or prohibit the free exercise of any religion . . . That means that state schools could be prohibited from providing religious studies or observance. Perhaps the Minister could tell us whether that would be the case. Does it mean that religious administrators would be prevented from ministering to the sick in government-run hospitals, and does it mean that the Australian Broadcasting Corporation would no longer be able to broadcast or televise religious services? These are the sorts of problems that we know have arisen in the United States. This is why I have cause for concern and why I believe a lot of the church people throughout Australia would have cause for concern about this proposal. If this referendum proposal becomes law, the day could come when the Bill of Rights section of the Constitution would require clarification or interpretation. They are some of the reasons I have asked these questions and I would be pleased if the Minister could give me an answer. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator BOSWELL(Queensland)(12.27 a.m.) —I support my colleague Senator Bjelke-Petersen, who expressed concern on behalf of church people. I want to draw the Minister's attention to the First Amendment of the American Constitution, which is also the beginning of America's Bill of Rights. It states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; I want to compare that amendment with the clause that tonight the Government is trying to impose on the people of Australia, which states: The Commonwealth, a State or a Territory shall not establish any religion, impose any religious observance or prohibit the free exchange of any religion . . . I draw the Minister's attention to the similarity between the American First Amendment and the proposal now before us. I also point out that that American amendment has been interpreted by the courts to mean that there shall be no religious education or observance in schools. I think it would be very easy for the High Court of Australia to give the same interpretation of this proposed new section 116 that the Government wants to place in the Constitution by way of this amendment. Many people are starting to express concerns, though I must say that I have never had any calls saying that religion has been denied in Australia; I have never had any church people say they have had the right to worship taken from them. I believe that section 116 of the Constitution has served this country well and has given freedom of religion to any people who genuinely want to worship, whether they are Christians, Muslims, Buddhists or the members of any other religion. They have been able to do so under section 116. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator Burns —What does that say? Senator BOSWELL —If Senator Burns wants me to read it out, I will do so. We have plenty of time tonight. No-one is in much of a hurry. It reads: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. That section has guaranteed Australia freedom of religion since 1901. The Minister referred to some obscure case that I have never heard of, but it was obviously factual. I want to pick up the point that Senator Bishop made. What are we going to have with this unlimited freedom of religion? Will we have satanic worship? Is that our right under freedom of religion? Are we to have the circumcision of young girls, as Senator Bishop asked? Are sects to be set up as religious organisations, primarily to make money or to fleece the public but under the guise of religion, like the Church of Scientology? (Quorum formed) I was saying that we are leaving ourselves wide open, under the Government's proposed new amendment, to the establishment of any religious sect, which will be free to operate under the amended Constitution. I have already mentioned some churches that I do not believe qualify as religious organisations. I referred recently to the Courier-Mail, which reported that some 18- or 19-year-old girls and boys were accosted on the streets of Brisbane and asked to take some type of personality test. They were then escorted upstairs to a room at the Church of Scientology and given jobs at $9 or $12 a week. That has happened in Brisbane; it probably happens in every other State too. This is being done under the guise of religion. If this legislation goes through, I think we will see many more strange sects and money making organisations starting up under the guise of religion. A similar amendment has been interpreted by the high courts of the United States of America. I suggest that this could easily have the same interpretation-that freedom of religion is offensive to anyone who does not subscribe to or support a particular religion. So if a Christian prays to a Christian god it is offensive to a Muslim, or a Muslim may offend a Christian, or a Christian may offend an atheist or an agnostic. That is where the Government is taking Australia, by changing this Constitution that has served this nation so well. I do not believe we have had any other problems, except for that obscure case the Minister referred to. I am beginning to support Senator Bishop, who says that this could be an undercover way of not funding or getting out of funding church schools. I will have much pleasure, when the Parliament rises, in going out and trying to persuade the churches to vote no, because what is intended to be freedom of religion will, I believe, have an absolutely adverse effect and that will be to contain religion-- Senator Chaney —Freedom from religion. Senator BOSWELL —Yes, it will be freedom from religion. Religious education and prayers in schools could become a thing of the past. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator SHEIL(Queensland)(12.36 a.m.) —There was a guy called Napoleon Bonaparte who once said that a constitution should be short and obscure. One can very well understand why a dictator such as him would want that kind of unfettered freedom to operate. His delusions of grandeur took him from being a grand military tactician and commander to engineering virtually the destruction of his country. The Government should realise that our Constitution is not one that gives the Government power; it is a Constitution that limits the Government's power, and it was designed particularly to do that. It states that the Government shall pass no laws that would shackle religion. We know the law and we understand it very well, and we have High Court decisions on this that fit very well with the country. To say that the common law is insufficient guarantee is belittling the common law. We are a common law country. Our experience coupled with that of Britain means that we have something like 1,500 years of law that has been built up by precedent. The law is all around us and it is up to us to expose it. That is the strength of the common law. We establish precedents, and we press on from there. But by changing this clause in the Constitution in the way the Government intends to with this referendum proposal, we would be jumping into uncharted seas. When we think of the bunch of agnostics and atheists that are now running this country, the cheery little socialist crowd that they are-- Senator Sanders —BHP and CRA. Senator SHEIL —That is right. The Government has a fascist corporate state going. I can very well see that this is a move to take action with regard to religion that the country would not stand for, and one which, of course, concerns the funding of religious schools. I do not want to go into that whole debate, as I mentioned it at the second reading stage of this Bill. I rose simply to support the position that was put tonight by Senator Bishop and Senator Bjelke-Petersen. I can assure the Government that I am going to go out and campaign very heavily for a No vote on this proposal. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator CRICHTON-BROWNE(Western Australia)(12.39 a.m.) —Section 116 of the Constitution presently states: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. The changes are to make the section read, `shall not establish any religion', and to add `a State or Territory' to the end of the clause. The Government's intention is to widen the powers of the provision and to include a State or Territory. We should understand the history of section 116 because then we will know that from the outset it was a limitation; it did not confer a new right on Christians. The great irony is that other than the last phrase of the section, which says that no religious test shall be required as a qualification for any office or public trust under the Commonwealth, the section is meaningless except in terms of the restrictions or inhibitions it places on people. The powers of the Federal Parliament rest upon and are drawn from the Constitution and are limited to what the Constitution provides. It seems to me that the Federal Parliament has no power to do anything except that which is granted to it expressly or implicitly as necessary. I read the 128 clauses of the Constitution as being clauses which set out the limitations of the Federal Parliament's jurisdiction. Of course, in certain cases it is restricted by the powers of the States. The Constitution is a document which tells us what the Parliament shall do; what it will do; what it can do. It is not a list of prohibitions. That is why this section is so incongruous by comparison with the rest of the sections. When section 116 was being debated, it was Barton who said in the 1898 debates: The real question that may arise under the Constitution is whether the Commonwealth can make a law establishing or prohibiting the free exercise of any religion. I take it that in the absence of a provision in the Constitution conferring that power upon the Commonwealth it will be impossible for the Commonwealth to do so. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Given that there was no provision conferring such a power, the clause saying that the Commonwealth is not to legislate in respect of religion seems to me to be somewhat pointless and irrelevant. The truth of the matter is that the Commonwealth, in the 128 sections, has no power to make any law for establishing a religion or for imposing any religious observance or for prohibiting the free exercise of any religion. Ironically, the founding fathers put that section in the Constitution because of the preamble in our Constitution stating that the people in the various States rely on the blessing of Almighty God. It was Henry Higgins who raised the American case in which it was ruled that the United States of America (USA) was a Christian country. In fact, he used the words `Christian country' in the debates. It was put that America was a religious country. That 1892 decision caused very real strife in New York. Some people went out with placards saying that religion should be imposed on the rest of the community. There were those in equal conflict who said that they should be protected from the outrages of those propositions as to what impositions should be cast upon people as a result of religion. As a consequence of the Supreme Court decision, a law was passed and carried into effect prohibiting the opening of the Chicago Exhibition on a Sunday. I think that that occurred in 1892. Higgins's argument was that because it had been found in a judgment that the USA was a religious country, a law which prohibited an exhibition being opened in Chicago on a Sunday could be upheld. That caused a great deal of pain for people such as Seventh Day Adventists, who believed that their day of rest was on Saturday. Their welfare and their businesses were affected by their not being able to open on a Sunday. So there was a very real conflict and, in the minds of many people, a threat as a result of that decision. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE The effect of that law was to impose a religious observance. It has been judged in Australia-so far, at least-that closing on Sundays does not constitute a religious observance, although we know that it was and, in the minds of most Christians, it is. It is now judged that it is a normal day of rest and an entitlement of hardworking Australian people, industrious as we are. We need one day a week for rest, recreation and, perhaps, resuscitation. Higgins's concern was that if a country such as the United States did not make reference in its constitutional preamble to the Almighty God what could be done with the laws of Australia where we call upon Almighty God for strength and for help. That is why he was particularly concerned to ensure that section 116 was included to compensate for the preamble which was already included. Of course, the preamble was not included by accident or because we were a Christian or religious country. It was a deliberate political decision because, of course, the same problems had arisen in the US. At the time of the Philadelphia Convention there was a long discussion, particularly by those people in Massachusetts, which had laws establishing a church. There was grave concern that the Puritans from Massachusetts and others would vote against the American Constitution because it did not include a reference to God. Higgins was concerned to get the numbers. He made a political decision to ensure that the reference to God was included in the preamble in order, if I might put it this way, to get the Christians on side. Having got the Christians on side by including that reference in the preamble, he had to get on side the Seventh Day Adventists and everybody else who felt threatened by its inclusion as a result of the US decision. That is why he included section 116. That is why we have section 116 today. Higgins made an interesting observation. He said: 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE At the time of the Massachusetts Convention there was a long discussion as to whether the Constitution should not be rejected, inasmuch as it did not contain any reference to the existence of God, Higgins went on to quote Professor Fiske, who had written: Next came the complaint that the Convention did not recognise the existence of God, and provided no religious tests for candidates for federal offices. But, strange to say this objection did not come from the clergy. This is a bit of trivia, but it is interesting. He continues: It was urged by some of the country members, but the ministers in the convention were nearly unanimous in opposing it. There had been a remarkable change of sentiment amongst the clergy of this state which had begun its existence as a theocracy, in which none but church members could vote or hold office. The seeds of modern liberalism had been implanted in their minds. When Amos Singletary of Sutton declared it to be scandalous- this is very interesting- that a Papist or an infidel could be as eligible to office as a Christian-a remark which naively assumed that Roman Catholics were not Christians-the Reverend Daniel Shute, of Hingham, replied that no conceivable advantage could result from a religious test. The Rev. Phillip Payson, of Chelsea, said that human tribunals for the consciousness of men are impious encroachments upon the prerogatives of God. A religious test as a qualification for office should have been a great blemish. `In reason and in the Holy Scripture', said the Rev. Isaac Backus of Middleborough, `religion is ever a matter between God and the individual; the imposing of religious tests hath been the greatest engine of tyranny in the world'. With this liberal stand firmly taken by the ministers, the religious objection was speedily overruled. That is exactly how we ended up with the position in which we now find ourselves. It was Higgins, of course, who had this great concern. Higgins was very pragmatic in his judgment. He stated: 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE I want to do what is at the worst harmless with a view to securing- he is talking about including section 116- a great number of votes in favour of the Constitution. I say that on the one hand there has been, rightly or wrongly, a strong pressure brought to bear throughout these colonies in favour of the insertion of some suitable words in the preamble. At the same time, I feel that if we put these words into the preamble without a safeguard in the Constitution itself we shall be very likely to alienate a large force against us. That is how the absurd section 116 came about. The Government is now trying to make a further mess of it and extend it so that it removes from the States rights concerning religion. As with the other provisions, we will be more and more restricted as a result of the amendments which Senator Tate is proposing. I think that was adequately demonstrated in the case in Adelaide Senator Tate referred to earlier. I ask Senator Tate to refresh my memory. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator Tate —The Grace Bible Church. Senator CRICHTON-BROWNE —Yes, that is right-the Grace Bible Church v. Reedman. Senator Gareth Evans —It made such an indelible impression on you. Senator CRICHTON-BROWNE —Senator Tate quoted that as his authority for saying that there is no intrinsic right in common law to freedom of religion. But for what it is worth, let me just remind honourable senators what Millhouse J. had to say. I think this is the point. He said: Thankfully, ours is still a democratic community and that supremacy accordingly may be and often is curbed politically. The bottom line of that-the part that Senator Tate left out-is that as long as we have a democratic political system of the type that we have there is no fear of tyranny. People do not fear the imposition of religion upon their daily lives; nor is there the likelihood of the rights of Christians being taken from them. But ever it is the truth that Bills of Rights and constitutions might set out at the beginning to tell people what they can do; invariably at the end of the day they tell people what they cannot do. Invariably they remove people's rights. As Senator Tate well knows, when the American Constitution was first written there was no Bill of Rights in it; I think it was only Jefferson badgering afterwards that caused the First Amendment to be put in. At the end of the day, as with this proposal, there are restrictions on people's rights. That is exactly what will happen in this case. It has happened in America in numerous cases. The interesting point about section 116 is that its words are almost absolutely plagiarised from the American Constitution. The American Constitution says that Congress shall make no law respecting an establishment of religion. That is the very modest variation, but the wording was taken straight out of the American system. Of course, the provision was put in the American Constitution because there had been persecution of those who were not of the Christian faith. They were denied a right to vote and in some cases a right to own property. In some cases, if they were not of the right faith they were required to pay extra taxes. It was in that environment that the American Constitution was written-quite a different environment from that which we had in Australia. What Senator Tate is seeking to do is to extend section 116 further to restrict people's rights. I do not need to state the obvious. While Murphy might have been the one dissenter in the DOGS case, it is worth reading what he had to say about the separation of church and state. We all know that judges, particularly in respect of moral and social issues, can be subjective: they do have the frailty of being subjective and of being human beings. Who knows at the end of the day what judgments we might find as a result of Murphy's first judgment and what will now happen in respect of the restrictions the Government is seeking to impose upon the States. (Quorum formed) 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator BURNS(Queensland)(12.56 a.m.) —I have heard much tonight about the pros and cons of the Constitution Alteration (Rights and Freedoms) Bill 1988, but when I look at the current constitutional provision in section 116 which Senator Boswell quoted I see that it states: The Commonwealth shall not make any law for the establishing of any religion . . . It does not say that States or Territories should not have that right either. As I understand the proposition, they will also be involved in that prohibition. That is fair and proper. All this rubbish I hear from the Opposition about the merits of the case, about religious freedom and about the rights of some people possibly being repressed is irrelevant. All we are seeking in this alteration is a change to force the States to observe the same prohibition about making laws for establishing religions as does the Commonwealth. That is all that is being asked. The Opposition can rabbit on for the next six hours but it will be rabbiting on about nothing. We want everyone in this nation to abide by the proposition that no governments-not just the Commonwealth Government but all governments-should make laws for establishing any religion. The rest of section 116 is not really interfered with by the Government's proposition. The latter part of section 116 states: . . . no religious test shall be required as a qualification for any office or public trust under the Commonwealth. At the time that was written it was correct because without it we would have had discrimination. I believe we had it anyhow. Because of the development of people's ability to protect their rights to have a job on merit, and not on the basis of what religion they belong to, we no longer need that protection. I have not heard anyone utter publicly any words that suggest that we now need that provision. The referendum proposition is that that be dispensed with. Those are the questions we must address. They are simple and direct. People who go away from that simple proposition, that direct proposition, are only trying to have themselves heard. What they are saying about what we intend in seeking these constitutional changes is irrelevant. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator TEAGUE(South Australia)(12.59 a.m.) —No-one has argued against section 116 as it exists in the Constitution, or that the proposed new section 116 deals with four separate concepts: the establishing of any religion, the imposing of religious observance, freely exercising any religion and requiring any religious tests. There is one thing in common in all of our debate and consideration of both the existing constitutional section and the proposed new section that this Bill would lead to following a referendum. No-one is arguing that there should not be freedom of religion in Australia, or that there should be imposed any religion or religious test, or that religion should not be freely exercised. These principles are held by all of us in this chamber. What is of concern is that there is a new form of words being proposed in the Bill before us that affects these matters in two ways. First, it applies a form of words to the States in a new way. Yet it is in the States that laws of State parliaments and decisions by Supreme Courts have determined a whole body of laws that have been the main guarantee of freedom for Australian citizens. The citadel that has safeguarded freedoms in this area-State law and the body of decisions in State courts-will by this new proposal be brought into a new jurisdiction. A new element is being introduced that we fear will have unintended consequences. It is in order to gain reassurances on these matters that there have been so many people, particularly Opposition members and Senator Harradine in his speech in the second reading debate, who have raised a very real concern about the new elements in this Bill. The second area where there is an extension of section 116 is in terms of executive action. The Minister has already said this evening-or I should say, it being past 1 o'clock, this morning-that the intention of the new section is to embrace a much wider range of executive activities. These are the two new elements before us: the application of these words to the States and their application to not only laws but matters wider than laws-executive actions. The consequences of these two new elements are of such concern as to lead me and my colleagues not to support this change to the Constitution. A mirror that is working in this form of words has its effect both with regard to establishment on the one hand and prohibition on the other hand. By extending an apparent freedom to religious activities so that they are not prohibited, even by the executive action of governments, we are, with like measure, extending a bar on the executive action of government to establish a religion. There is a mirror image in these matters. The Minister has said that in the Grace Bible Church case there was an activity of this church which had been prohibited by an action of the State of South Australia which, if this constitutional proposal had been in place, would not have been possible. Senator Tate —I am sorry, Senator, I did not say that. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator TEAGUE —I have misinterpreted the Minister's reference to the Grace Bible Church case of 1984 in my own State of South Australia. I only cite that case because it is the one that the Minister referred to. It appears that I have used an expression in relation to that case which was not in the mouth of the Minister. I am left in the dark now because I am not guided by the Minister as to how he would want to clarify his reference to that case. But whatever action this new section in the Constitution would have, to the extent that it relieves a prohibition it has a mirror effect on denying the establishment of a religion or anything that could be supposed to to be an establishment of a religion. That is what leads to the concern about not just the law of the Commonwealth but now, as is proposed, the law of a State or a Territory-and not just a law but an executive action not only of the Commonwealth but also of a State or Territory, that could be described as being some step towards the establishment of religion-by the new proposal, being prohibited. To the extent that we are, by these new words, extending a freedom, in the section itself there is a mirror effect and to a similar extent we are denying a government, both in the Commonwealth and the State, any action that would be seen to establish a religion. It cuts in these two different ways. On the one hand, certainly I am concerned if this new form of words that relates to executive actions would restrict religious observance and prayer in a government institution such as a school. Or take, for example, a recent Commonwealth law, a States grants schools Bill that prohibited capital moneys being used by a beneficiary-a school-for a building which could be used for religious observance. This was an express law of the Parliament. At the time, we objected to it. There was a similar clause in that same Bill-it was at the time when former Senator Ryan was Minister for Education in this chamber-which prohibited the use of capital grants to schools that would be for buildings that could not be used equally by male and female students. At the time, we said that this was possibly restricting the establishment of a building that could be used for domestic science teaching, which would in practice, given the enrolment pattern in these matters in Australian schools, be likely to be used mostly or only by girls, and similarly, some gymnasia that would be likely to be used only by boys. In that debate there was an express prohibition by a law passed by the Parliament. The Opposition's objection to that matter did not gain majority support in this chamber. The Minister is saying that this new constitutional provision would relate not only to a law such as that but also to an executive act that would have some effect upon the free exercise of a religion. My point is only that to the extent that the Minister is extending a new freedom in relation to executive actions of government, I say that he is also inhibiting religious activity or religious observance in any place or institution that is affected by a government's executive action. Let us consider the words themselves. Proposed new section 116 reads: The Commonwealth, a State or a Territory shall not establish any religion, impose any religious observance or prohibit the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth, a State or a Territory. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE The words `shall not establish' are followed by `shall not prohibit'. I ask the Minister: Does he not agree that there may well be unintended consequences that arise on the one hand to the extent that the Government is now asserting that there is an extension on the other hand? This could be related to a whole list of activities. On the one hand I have mentioned restrictions on religious observance or the grant of money to religious schools or to those parts of schools that may be used for religious observance and so on, or for functions that include a religious observance. On the other hand, to the same extent that prior prohibitions have been removed, there will be a new freedom to claim, under the guise of religion, that certain practices should not be inhibited. I will come back to this later in the debate on these clauses. It could well be argued that confinement or restraint by certain sects is a freedom that they wish to exercise in order to inculcate their religious views on their children or early disciples or people who claim to be converts. The Moonies have certainly done that. In so far as certain persons have committed themselves to a particular sect, such as the Moonies, those individuals have been restrained and kept within bounds and have not been able to escape. There have been notorious personal experiences related in our newspapers of such restraints and confinements. If someone were to say that this was a right of that sect and claim it as an aspect of their religion in order to achieve some noble end such as enlightenment or spiritual freedom or good values, will we not then see extreme acts of a religious group claiming to be unfettered as a result of this constitutional provision? And so I could go on. The TEMPORARY CHAIRMAN(Senator Giles) —Order! The honourable senator's time has expired. (Quorum formed) 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator HARRADINE(Tasmania)(1.15 a.m.) —I enter this debate for the first time since I spoke in the second reading debate. I listened carefully to Senator Tate's response to the second reading debate and not once did he advert to the problems raised in that debate concerning the so-called extension of the freedom of religion. That is very significant. I would like to ask Senator Tate now, directly, a few questions. He has indicated to us that the reason this particular measure is now before us is to be found in some obscure case in South Australia, the Grace Bible Church case, wherein it was stated by at least one of the judges that common law does not extend to the rights of persons to freedom of religion. But the Minister needs to respond to this question: Where is the evidence in any of the States which requires the extension of the provision of the Constitution if he suggests that the provision of the Constitution is there mainly for the purpose of establishing a right of the citizens of Australia to freedom of religion? We heard from Senator Crichton-Browne a long lecture, a very illuminating dissertation, on the basis for having section 116 in our Constitution. He covered the Higgins contribution to the Constitutional Conventions. Senator Tate indicates that we should have regard to what is contained in the explanatory memorandum. Yes, we did have regard to what was contained in the explanatory memorandum because of the well-founded fear of many of us that the extension of this section to bind the States will at some stage be used to prevent State government funding to parochial schools. Senator Tate says, `Let us have a look at what is contained in the explanatory memorandum; you should have no fear because of the statement made in it'. I quote from the explanatory memorandum: There is, however, no change that would render the decision of the High Court in Attorney-General (Vic) (at the relation of Black) v. Commonwealth (1981) 146 CLR 559 inapplicable to the new section. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE I believe that Senator Bronwyn Bishop dealt with that admirably, and Senator Tate has not responded adequately to her. I ask Senator Tate a very simple question: Why does he say that the courts, in particular the High Court of Australia, would have regard to the explanatory memorandum? I ask him why he says that, given the provisions of section 15AB of the Acts Interpretation Act, which says, under the heading `Use of extrinsic material in the interpretation of an Act': Subject to sub-section (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material . . . But that, I remind the Senate, is a provision in the Acts Interpretation Act which enables the High Court to have regard, inter alia, to the explanatory memorandum of an Act of parliament. But when these challenges come before the High Court they will not be based on an Act of parliament. They will be challenges based on a provision in the Constitution. I therefore ask: Would not the High Court in those circumstances have more regard to what was said at the constitutional conventions which drafted the constitutional provision than it would to an explanatory memorandum in 1988 which deals with a particular Bill? The question is simply this: Given the fact that this provision is being extended to the States in, for example, a case brought by some sectarian group to cut off State funds to parochial schools, would not the High Court be more likely to have regard to what was said in the constitutional conventions than to what was said in this explanatory memorandum? 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator TATE(Tasmania-Minister for Justice)(1.20 a.m.) —Senator-- Senator MacGibbon —How about a few answers at this time of night? Don't save them up any longer. Senator TATE —I have been told by Senator MacGibbon's leader to sit down and listen rather than to get up every time I am asked a question; so that is what I was doing. Senator Harradine said that the Government was trying to establish-mistakenly in his view-freedom of religion or something like that in the States. I have tried to explain to Senator Bjelke-Petersen that the aim is not to pretend that a government can confer this particular human right on people but to grant recognition to that right and to ensure that the recognition which the framers of the Constitution thought was important and was provided for in the Commonwealth law was also provided for in relation to State parliamentary and executive activity. That is the object of the exercise. The other point related to the Acts Interpretation Act. It states: Subject to sub-section (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting the ascertainment of the meaning of the provision, consideration may be given to that material- We believe that, following the alteration to the Constitution being initiated by the legislative action of this Parliament, the High Court will be able to have regard to that extrinsic aid in the way of the explanatory memorandum if it so decides. The fact that it says that it may give that consideration obviously gives it an entitlement to do so, and that is what is intended and no doubt what it would do if it wished to understand a meaning which was otherwise obscure to it. The honourable senator asked whether the meaning of section 116 would be more likely to be gained by a consideration of the debates and the history leading to the interpretation which was current at the time of the adoption of the Constitution, or whether one would be able to rely on the Defence of Government Schools case. In that case Chief Justice Barwick, as recorded in Commonwealth Law Reports at page 581, said: . . . whilst I have considered what was the current significance of `establishing any religion' in 1900, I am of opinion that there has been no real change in the significance of the words over the years which have intervened. I think that confirms what Senator Bishop indicated, that in fact the judges on the High Court were able to go back to Quick and Garran and to the other authorities which had, I suppose, first-hand knowledge of what was intended by the adoption of these particular clauses in section 116 of the Constitution-and found that that cultural and political milieu gave rise to an understanding of section 116 which was different from that which prevailed and still prevails in the USA. I believe in that sense that the DOGS case does provide us with a line of interpretation in relation to section 116 which, on Senator Harradine's analysis, we can have good confidence in because it actually coincides with and draws its strength from the understanding at the time of the adoption of the Constitution. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator CHANEY(Western Australia-Leader of the Opposition)(1.26 a.m.) —I am sorry to impede Senator Harradine, but it is now two hours since we sought to adjourn. As the debate is one which is obviously of considerable importance and also considerable complexity, I think to be debating this matter at half past one in the morning is not appropriate. Therefore I again move: That the Chairman of Committees report progress and ask leave to sit again. Question put. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 32 Noes . . . . . . . . . . . 34 —— Majority . . . . . . . . . 2 —— Alston, R. K. R. McGauran, J. J.Archer, B. R. MacGibbon, D. J.Baume, Michael Messner, A. J.Bishop, B. K. Newman, J. M.Bjelke-Petersen, F. I. Panizza, J. H.Boswell, R. L. D. Parer, W. R.Calvert, P. H. Patterson, K. C. L.Chaney, F. M. Puplick, C. J. G.Chapman, H. G. P. Reid, M. E.Crichton-Browne, N. A. Sheil, G.Durack, P. D. Short, J. R.Hamer, D. J. Tambling, G. E. J. (Teller)Harradine, B. Teague, B. C.Hill, R. M. Vanstone, A. E.Knowles, S. C. Walters, M. S.Lewis, A. W. R. Watson, J. O. W. Aulich, T. G. Giles, P. J.Beahan, M. E. Haines, J.Black, J. R. Jenkins, J. A.Bolkus, N. McKiernan, J. P.Burns, B. R. McMullan, R. F.Childs, B. K. Macklin, M. J.Coates, J. Maguire, G. R. (Teller)Collins, R. L. Morris, J. J.Colston, M. A. Ray, RobertCook, P. F. S. Reynolds, M.Cooney, B. C. Richardson, G. F.Coulter, J. R. Sanders, N. K.Crowley, R. A. Schacht, C. C.Devereux, J. R. Sibraa, K. W.Devlin, A. R. Tate, M. C.Evans, Gareth Walsh, P. A.Foreman, D. J. Zakharov, A. O. Brownhill, D. G. C. Button, J. N.Baume, Peter Gietzelt, A. T.Stone, J. O. Jones, G. N. Question so resolved in the negative. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator HARRADINE(Tasmania)(1.33 a.m.) —I wish to follow up an answer given by Senator Tate. Are we to understand that there is an underlying assumption in his statement that he is confident that the court would have regard to what is contained in the explanatory memorandum; that is to say, in any future challenge on a State basis to government funding of non-government schools, or parochial schools, the majority decision in Black v. the Commonwealth would be maintained? Is that the assumption we are to make? Senator TATE(Tasmania-Minister for Justice)(1.34 a.m.) —What I am saying is that the High Court, faced with a decision about government funding of independent church-based, religion-based schools, would be able, as indicated, to have regard to the explanatory memorandum, which points to the decision in the Defence of Government Schools case and indicates that the Government, in proposing this provision, does not regard it as in any way contradicting that decision. Obviously the reasonable expectation would be that the High Court would have regard to that aid to interpretation. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator HARRADINE(Tasmania)(1.35 a.m.) —What is the basis for that expectation? As an example, what if we had a Bench full of Murphys? What if, in 20 years time, Senator Gareth Evans is Attorney-General and in his period in office he has appointed clones of the late Lionel Murphy? Senator Crichton-Browne —There is nothing extraordinary or extreme about that proposition, either. Senator HARRADINE —No, it is quite possible. Under those circumstances, is the Minister giving us a guarantee that the High Court would not cut off aid to parochial schools? Senator TATE(Tasmania-Minister for Justice)(1.36 a.m.) —Having indicated that the DOGS decision was not based on some merely contemporary or trendy analysis, but was well based in the discussions which accompanied the formation of the Constitution in the latter part of the nineteenth century and its adoption 87 years ago, I believe that that sort of interpretation is a sound basis for the belief that it would survive the scrutiny of a later High Court. I cannot, nor can anyone, give any absolute, untempered guarantee about any decision. One must be reasonable. The High Court's interpretation of the precise matter which Senator Harradine is worried about is founded so well in the early history of the formation of the Constitution that the difference between the type of interpretation undertaken by our High Court and that undertaken by the United States Supreme Court is very fundamentally put and, I believe, would be sustained in years to come. Senator HARRADINE(Tasmania)(1.38 a.m.) —Senator Tate has referred again to what the framers of the Constitution had in mind. We have heard from Senator Crichton-Browne in his dissertation tonight what the mover of this provision had in mind. He had in mind the provisions of the United States Constitution concerning provisions which prevented the state from establishing a religion or religious observances. We do not have to go to an authority such as Senator Crichton-Browne for that. We need only go to the case which we are talking about-the DOGS case-in which Mr Justice Murphy, at page 621 of his judgment, said: Section 116 is very similar to, and obviously taken from, the provisions of the United States Constitution and the prohibition added against laws for imposing any religious observance. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE His Honour Mr Justice Murphy, on page 632 of Commonwealth Law Reports, went on to say in his judgment: The purpose of our establishment clause is the same as that in the United States Constitution. The late Mr Justice Murphy said that after having canvassed a number of United States cases which went to a number of things, including the matter that we are talking about. I think it would be useful if honourable senators were to get a copy of Commonwealth Law Reports No. 146 and go through what the late Mr Justice Murphy had to say. He went on to say: The United States decisions on the establishment clause should be followed. The arguments for departing from them, based on the trifles of difference in wording between the United States and the Australian establishment clauses-- Senator Crichton-Browne —Are hair splitting. Senator HARRADINE —Exactly; those are his words-are hair splitting and not consistent with the broad approach which should be taken to constitutional guarantees of freedom. Senator Crichton-Browne —He went on to say that the purpose of our establishment clause is the same as that of the United States Constitution. Senator HARRADINE —That is right. I again ask Senator Tate: Can the Government give us a guarantee that the extension to the States of section 116, with minor alterations to wording, will not create the potential for a sectarian-based attack at State level against the limited state funding of parochial schools? Can the Government give us a guarantee that that potential will not be there? Senator MacGibbon —Mr Chairman, I raise a point of order. Would you apply standing order 438 to Senator Aulich? He is indulging in disorderly conduct, being recumbent and asleep. Senator Aulich —Mr Chairman, I rise to speak to that point of order. I am intrigued at the presumption of Senator MacGibbon that someone is showing disdain to the chamber by reclining in a position-- The CHAIRMAN —Order! Senator Aulich, you must address your remarks to the point of order, not to the raising of the point of order. Senator Aulich —I am addressing my remarks to the point of order. I totally and unequivocally reject the viewpoint of Senator MacGibbon. He and others have brought this chamber into disrepute by the fact that at a quarter to two we are still in this chamber debating matters that are most important to this nation. The CHAIRMAN —Order! Senator Aulich, resume your seat. Those remarks are not relevant to the point of order. Senator Aulich —If I may continue to speak to the point of order, if I remain relevant-- The CHAIRMAN —Only if it is relevant to the point of order. I am ready to rule on the point of order. There is no point of order. Resume your seat. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator CHANEY(Western Australia-Leader of the Opposition)(1.44 a.m.) —I wish to speak briefly in support of the question which has been raised by Senator Harradine and to echo his request for an answer. The position is that the late Mr Justice Murphy put a meaning on section 116 which was quite contrary to the view of his brethren but which, if it became the majority view of the High Court of Australia, would of course have very significant implications for the schools which have been referred to by Senator Harradine. I must say that I strongly support his demand for an answer because in my view the Minister is unable to give the Committee any sort of assurance as to what will be the interpretation placed on this section by any future High Court. The simple reality is that the majorities have shifted, and most recently with respect to section 260 of the Income Tax Assessment Act clearly a point of view that was pursued during the 1970s and the early part of the 1980s has ceased to be the view of the Court, to the enormous inconvenience of a substantial number of people who are now being assessed going back many years. The idea that a judicial majority will always stay in one direction is clearly absurd on the record. I would have thought that the Minister could give us only one answer, and that is that he can give us no categorical assurance that what has in the past been the minority view of the interpretation of section 116 will not at some future time become the majority view. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE The very fact of that possibility, as far as I am concerned, is the death of this proposal. I have said frequently enough in public debate that the plurality of the present schools system is possible only because of the extensive assistance to non-government schools which has been provided now for many years but which was codified and regularised under the Fraser Government. This was sought to be upset by Minister Ryan, but honourable senators will recall that that was taken out of her hands and put in the hands of the rest of the Government, primarily for electoral reasons, I think, and the essential codification that had been achieved under Fraser was therefore maintained. That is a matter which continues to excite some passion. It continues to excite some attention and it continues to be an area where judicial challenge is possible. I have a very great personal interest in this. I declare an interest as a parent who in the past has used private schools-Catholic schools in particular-and who is committed to the maintenance of the principle of providing some assistance for parents who choose to educate their children outside the state system. I want a categorical assurance, and I put it to the Minister that that is a categorical assurance he cannot give us. Senator SHEIL(Queensland)(1.47 a.m.) —I have been trying for the last 20 minutes to say something on this point, but now I think it has all been said. I see that the apprehension of the Opposition is pretty well founded, particularly after the vacuous exposition the Minister for Justice (Senator Tate) gave on the state of the law and the church as it exists now, and the nebulous exposition about how it will exist should this clause be introduced. However, I will not go on with that matter. I wish to refer to another point the Minister made in answer to a question from Senator Bishop. He played down the effect on the obnoxious practices currently carried out by non-Christian religions should they be given unfettered freedom under the States in Australia. Senator Bishop referred to the practice of circumcision of women in some Muslim sects and the nymphoinfibulation of women that is carried out by some tribes in Africa. The Muslims cut off the head of the clitoris, which is a particularly miserable thing to do to women-as if they have not got enough troubles as it is. If the Minister does not think that the matter is serious, he should realise that with these people their religion is the same as their politics. As an example of that, an election was called in Pakistan yesterday by the President at the instigation of the mullahs because the Government was not implementing Islamic policy with sufficient alacrity. The threat is real; these people have the same religion as their politics. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator TATE(Tasmania-Minister for Justice)(1.49 a.m.) —It was never my intention to play down the gravity of those practices which are perpetrated on, in this particular case, young women in our society. I think what I said was that if the action amounted to an assault-I do not know the exact medical details-the principles that one can see expounded in the Jehovah's Witnesses case indicate that one cannot rely on the claim that one is engaging in activity and reliance on one's religious beliefs in a way which excludes the operation of the ordinary laws which exist for the protection and well-being of society, such as, in this case, the criminal laws which deal with such matters. That helps answer Senator Teague's question about false imprisonment and holding against their will persons who have been brainwashed by some religious sect. That is quite different from a person entering into a voluntary retreat for 20 days, a couple of months or whatever it might be, by way of formation in the religious principles of the sect or denomination they are interested in. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator Crichton-Browne —There was a case in Perth very recently in which a Muslim man was convicted for having chained his wife to the bed for a number of days and he was put on a bond because of his religious beliefs. Senator TATE —Yes, but what I am trying to say is that the High Court has indicated that the laws which are adopted by society to regulate relations between people, and which obviously exclude the forcible chaining of a person, and sexual and other abuse visited on that person, are of such a character that the claim that one is merely exercising a consequence of one's religious belief is not able to displace the operation of that criminal law. Senator Durack —What case are you relying on now? Senator TATE —I am saying that those principles were set out in the Jehovah's Witnesses case-- Senator Durack —That was in wartime. Senator TATE —Yes, but it is the same principle about the protection of society. In relation to the continuing strength, if that is the word, of the majority decision in the DOGS case-- Senator Walters —Can you guarantee that? Senator TATE —I have already answered that question, to the effect that it is impossible to say with any absolute certainty in advance how any court might interpret any provision of the Constitution, except to say that, where we have, as in this instance, a situation where the views of Mr Justice Murphy, even though they have been quoted at length, were rejected by six of his fellow judges in forthright terms and where those views of the six majority judges conformed to the sorts of principles which were set out by Senator Bishop in her speech as being the surrounding ethos at the time when the Constitution was adopted, and given the fact that the explanatory memorandum points to that decision as being the decision which should help the Court decide such a matter if it were concerned that it could not find in the words sufficient guidance, that leads to a very soundly based assumption that a High Court would adopt that decision as its guide in interpreting the present section of the Bill which we are putting to referendum. In any challenge that were to be mounted, that pointing to the DOGS decision by the explanatory memorandum would help ease the worries and misgivings which have been expressed in the chamber. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator BISHOP(New South Wales)(1.54 a.m.) —I would like to take up some of the remarks the Minister has just made, particularly with regard to the explanatory memorandum and his assertion that, once section 116 is altered, the law as interpreted by the Jehovah's Witnesses case would remain constant. He seems to ignore the fact that once section 116 is altered the case law will not have the same effect. The explanatory memorandum has two important statements which are relevant. Firstly, it says that it wishes to extend the prohibition in section 116 to Executive action. Although that sounds good, one problem with accepting that as a valid intent is very simply that if an Executive action or function has the effect of establishing a religion, the enabling legislation pursuant to which that Executive action is taken must also have the effect of establishing a religion and, therefore, both the enabling legislation and the Executive action are void. Barwick in Black's case, as I have called it, or the DOGS case, as the Government has called it-it being one and the same case-deals with the question of administrative and delegated legislation and clearly finds in that way. Similarly, Justices Barwick, Gibbs, Stephen, Mason, Aickin and Wilson held that a law which provides for financial aid to the educational activities of church schools is not a law for establishing a religion even though the operation of the law might indirectly assist the practice of religion. Basically that case said that one can have an incidental purpose which may go towards upholding a religion, but it does not infringe section 116 because the main purpose of the law is not to establish such a religion. Once one removes the words `make any laws for', as the Government proposes, one removes the basis upon which those conclusions were drawn. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE The problem then is that there is a so-called guarantee of religious freedom as well as an absolute prohibition against establishment which is unfettered by the words `any law for' and could be construed in terms of the case which the plaintiffs put in Black's case and which was accepted by Justice Murphy. That is why Senator Harradine went to such length to point out how Murphy accepted that argument. Once the wording of section 116 is changed, the argument is then reopened entirely. It is quite open to the arguments put forward in Black's case, which failed in that instance because Their Honours, in their wisdom, took the words that were in the section as the basis for their decision. Once those words are removed, the whole issue is opened to debated again. The Government is effectively taking the law which is now settled and certain, because it has been interpreted and state aid for religious based schools is held not to infringe the Constitution, and proposing to render it uncertain. When it says in the explanatory memorandum that Black's case will not be inapplicable, that is quite correct. It will be very applicable because it covers the question of the establishing of a religion. The difference is that once the Government reopens the question and changes the section, it does two things: firstly, it takes away the basis on which Their Honours found for the defendants in Black's case; and, secondly, the Government also removes the impediment of taking the United States precedents into consideration because it has changed the law as it was settled in 1900. We will then be able to look at the American experience. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE As I said earlier, the American experience could well become our experience. Very simply that means no state aid and no religious observances or prayers within schools. Indeed, it is not an extension of freedom which the memorandum purports to say the Government is attempting; in fact, it is a limitation of freedom of religion. The question I would ask the Minister is: When there is no evidence in Australia of a groundswell for guarantees of religious freedom to be included in our Constitution-and I might add that the Grace Bible Church case which has been used in debate here is irrelevant to the state aid question-why does the Government choose this moment to take what is a certain position with regard to state aid to private schools and render it uncertain? What is the point? Where is the benefit, unless it is to satisfy those within the Minister's own Party who want to see state aid for private schools phased out, indeed abolished, and the whole structure of the competing independent system of schools dismantled? If state aid goes out, so does the system of independent schools. As I said, I ask the Minister: Why at this particular moment in 1988 is the Government seeking to make uncertain the law which is presently certain? Why does the Government again wish to see the bitterness and the ravages of that debate surface again in this our bicentennial year? 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator TATE(Tasmania-Minister for Justice)(2.02 a.m.) —It is not my desire, nor is it the Government's intention, to try to create a situation in which there will be the possibility of the cutting off of funds to independent schools which are based on religious belief by reason of any constitutional prohibition or, indeed, for any other reason. We are committed to that particular funding and I believe that it creates a situation in which the rights of parents to decide on the venue of education and schooling for their children should be given some practical effect in reality. I can only repeat that this is not some clever attempt to create that political situation. It is certainly not in our political interests that such a situation should be created. It is not in our interests to exacerbate any political conflict in relation to that particular sectarian controversy. I believe that the Defence of Government Schools (DOGS) case made it clear that the establishing of religion in Australia has a different meaning from that which has been adopted by the United States Supreme Court. Senator Bishop —Because of the words `make laws for'. Senator TATE —No, not because of those words. Senator Bishop —Yes. Senator TATE —No, that phrase is concerned only with the legislative power of the Parliament. The fact is that the crux of the DOGS decision in this respect is that the establishing of any religion requires, in the court's view, the setting up of a national religion or giving special status or privileges or some sort of undue benefits to a particular denomination or religion. Senator Bishop —By a law designed for that purpose. Senator TATE —I do not think that is the crux of the situation. The crux of the situation is the type of establishment of religion which is outlined in those quotations. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator CRICHTON-BROWNE(Western Australia)(2.05 a.m.) —I want perhaps at some pain to point out that section 116 of the Constitution has been plagiarised from the American Constitution, and particularly in light of Murphy's judgment it is worth tripping through some American judgments, even at the risk of enraging those who would wish to go home, just to show the effects some of these judgments could have, the interpretation of the religious rights contained in the First Amendment and the arbitrary results that have been caused. Of course there have been many cases in the United States, as we have heard, while on the other hand our section 116 has been interpreted by the High Court of Australia on only a few occasions. It is a reasonable proposition to put that in as much as section 116 was taken from the United States Constitution similar arbitrary interpretations of provisions could apply. I refer to the United States Supreme Court's interpretation of the two limbs of the First Amendment. The first is that Congress shall not make laws respecting the establishment of a religion. To argue about the wording, as Justice Murphy said, is hair splitting. Our words, of course, are `for establishing a religion'. The other limb prohibits the free exercise of such religion. As I think has been mentioned today, the foundation stone for the United States Supreme Court interpretation of the First Amendment was laid in Everson v. the Board of Education in 1947, when New Jersey legislation authorised school districts to subsidise the transportation of students who attended church schools. Of course from this case came the following famous pronouncement by Justice Hugo L. Black, which has been referred to so often this evening, that the establishment clause means at least this: Neither a State nor the Federal Government can set up any church, neither can pass laws which aid one religion, aid all religions or prefer one religion over another. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach and practise religion . . . In the words of Jefferson, the clause against the establishment of religion by law was intended to erect `a wall of separation between church and State'. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE The next year, in 1948, the court had to decide on the so-called release time case, McCallum v. the Board of Education, in which religious instruction was provided to public schools. Notwithstanding that the instruction was undertaken by religious authorities and that the program was voluntary, the court found that it infringed the principles set down in the Everson case because the religious instruction took place in the class room. The court found that the program constituted beyond all question a utilisation of the tax supported public school system to aid religious groups to spread their faith. Just four years later, in 1952, in Zorach v. Clauson the court held a similar program valid when the only difference was that the religious instruction was conducted off the school property. Of course there are a number of cases related to books and other educational material and resources. Plenty of cases have dealt with establishment clause challenges to the participation of church schools in state funded education programs. The first case was the Board of Education v. Allen, in which a New York statute required local school boards to loan textbooks to students and not to public schools. It is important that these cases be read into the record so that we can understand that interpretations have been made and can understand where this proposal might lead us at the end of the day. The court affirmed the Everson pupil benefit theory-that is, of course, the general welfare and secular legislative purpose-stating that the purpose of the legislation was to expand educational opportunity by making textbooks available free of charge. Once the states tried to expand this assistance to non-public schools beyond textbooks, however, the court consistently held statutes to infringe the First Amendment. Once they have gone past the point of providing free textbooks they have infringed the First Amendment. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE A leading case was Lemon v Kurtzman in 1971 in which a Pennsylvania statute authorised a school to purchase secular educational services from non-public schools. In effect, this was a system of state subsidy whereby the state was to reimburse the schools for teachers' salaries, textbooks and instructional material. The court, in adopting a three point establishment clause test, found the statute invalid. The court held that the arrangements involved excessive entanglement between secular and sectarian activities and authorities. The three point test since adopted by the court for establishment clause challenges is as follows: the secular legislative purposes of the policy; the policy's purpose and primary effect must neither advance nor inhibit religion; and the policy must not result in an excessive entanglement with religion. Two years later the court held that a New York program providing for non-public school aid through maintenance and repair grants, tuition reimbursement and tax credits, and a Pennsylvania statute also authorising tuition reimbursements, infringed the First Amendment. In the former case the court held that, notwithstanding the high social importance of the state's purposes, it may not justify an eroding of the limitations of the establishment clause now firmly implanted. A further two years later, Pennsylvania again tried to provide aid additional to textbook loans in the form of a variety of auxiliary services that included counselling, testing, psychological services, speech and hearing therapy, and remedial services for the educationally disadvantaged. In that case, again, only the textbooks survived. In 1983 the court approved a Minnesota tax deduction program for tuition, textbooks and transportation costs as the measure made the relief available to parents of pupils attending both public and non-public schools. This was notwithstanding that the actual effect of the legislation was to benefit the children of non-public schools as the parents of public school children did not normally incur expenses covered by the deductions. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE We come to the bottom line of what I see, other than the overturning of the Defence of Government Schools case, as the very real, practical and tangible effects of this legislation. We turn to prayer and religious instruction. There have been a whole range of American cases. Cases have been dealt with on two basic topics: prayer and bible reading at the opening of the school day, and released time programs for religious instruction. The latter has been dealt with earlier in relation to the McCollum and Zorach cases, where it was held that no religious instruction could be given where state aid was provided. The issue of opening prayers was first before the Supreme Court in Engel v. Vitale in 1962. The question was whether a state composed prayer to be used on a purely voluntary basis in New York schools was constitutionally valid. The court declared that it infringed the establishment clause, although the judges stressed that it was not a prayer but an officially prescribed prayer that was being condemned. Senator Bolkus —You have proven you can read; what else have you done? Senator CRICHTON-BROWNE —We are one step ahead of the Minister. Despite this rider and the court's decision, just one year later in the dual cases of the School District of Abington Township v. Schempp, and Murray v. Curlett, the court held that public school opening exercises using the Lord's Prayer and Bible reading violated the establishment clause. I know that that would not offend Senator Bolkus. I know that he would not find that insulting. I know that he would not be terribly upset if his kids could not say their prayers in the morning. He would not find that offensive. But many Christian people in this community believe that that is their right. Adopting the test of purpose and primary effect, the court said that, if either was the advancement or inhibition of religion, the enactment exceeded the legislative power. It made that judgment on the advancement of religion, simply because these kids were saying prayers in the morning at the beginning of the school day. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE One other matter of concern in this area is the Reagan Administration's efforts in 1984 to move a constitutional amendment to allow individual or group prayers in schools. That was defeated on 20 March 1984. In June 1984, however, the Senate attached an equal access condition to an education appropriations measure which guarantees any student group wishing to discuss religious issues the use of school facilities on the same basis as any other student group-for example, for political discussions. However, that collapsed. That proposal was not successful as a step to restoring organised prayer in schools as a result of the decision in Bender v. Williamsport School District, which was on appeal. The court in that case held that, based on the three point establishment clause test enunciated in the Lemon v. Kurtzman case, the primary effect of allowing a non-denominational student initiated prayer club to meet during school appointed activity hours would be to endorse and encourage religion. It was in contravention of the establishment clause which in those circumstances prevailed over the student's right to free speech. This decision was consistent with a decision in Wallace v. Jaffree in 1985, in which Alabama's silent prayer law was found to have an intent to put voluntary prayer back into public schools in direct conflict with the Lemon three point test. It is very interesting. They were banned from private silent meditation in school. One interesting matter decided by the Supreme Court was the 1980 Kentucky case of Stone v. Graham in which the Court refused to allow public classrooms to put up copies of the Ten Commandments on the walls. It was held that the purpose was the advancement of religion. The students in that case overcame that problem by wearing the Ten Commandments on their T-shirts. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE The United States Supreme Court's interpretation of the free exercise guarantee has also led to some rather arbitrary and inconsistent decisions. The Court has looked to a test whereby laws would infringe the free exercise clause unless there was a compelling interest which the state may lawfully protect. In the 1961 Sunday closing law cases, Braunfeld v. Brown and Gallagher v. Crown Kosher Supermarket, for example, the Court rejected the claim of a number of Jewish businessmen that the law compelling them to close on Sundays disadvantaged them when they were also closed on Saturday to observe the Sabbath. The Court held: If the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden . . . That argument has already been put this evening by Senator Tate. Of course, this decision was later reversed. However, Justice Brennan on that occasion dissented. He then went on to enunciate the compelling state interest test, stating that regulations infringing on the free exercise clause could be constitutionally sustained only to prevent `grave and immediate danger to interests that the State may lawfully protect'. This test was adopted in the 1963 case of Sherbert v. Verner in which the court held that the South Carolina Unemployment Compensation Commission had acted unconstitutionally in holding that a Seventh Day Adventist was ineligible for benefits because of her unwillingness to work on Saturdays. Senator HARRADINE(Tasmania)(2.19 a.m.) —I have one very quick question of the Minister at the table, the Minister for Consumer Affairs (Senator Bolkus), which I am sure he will be able to answer. I refer to the judgment of His Honour Mr Justice Murphy in the Defence of Government Schools-DOGS-case in which he had this to say: Section 116 is very similar to, and obviously taken from, the provisions of the United States Constitution, and the prohibition added against laws `for imposing any religious observance'. He went on to say: The purpose of our establishment clause is the same as that in the United State's Constitution. I ask the Minister a simple question: Does he agree with that contention of the late Mr Justice Murphy? 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator BOLKUS(South Australia-Minister for Consumer Affairs)(2.20 a.m.) —The simple answer to Senator Harradine's question is no. All the United States cases that were cited by Senator Crichton-Browne, and that are now referred to by implication by Senator Harradine, are irrelevant because Justice Murphy was in a minority of one in the DOGS case. The decision rejected the US interpretation of the term `establishment of religion' and, as a consequence, based and defined the law-- Senator Walters —We have been through that. Senator BOLKUS —Senator Walters says that we have been through that. Now that Senator Harradine has come into the chamber, I am glad to be able to repeat it for his information. The High Court's decision was very explicit and clear in that it rejected all the US cases. It made it clear that the sort of fear which Senator Harradine has about the interpretation of the words `establishment of religion' is ill founded. Senator HARRADINE(Tasmania)(2.21 a.m.) —Is Senator Bolkus aware of the Murphy judgment in the section 260 taxation cases? Does he agree with the Murphy decision in respect of those cases? Would he agree with me that the Murphy reasoning in those cases has subsequently been adopted by the majority of the Court? Is it not conceivable that a future High Court could do the same in respect of the Murphy reasoning in the DOGS case? Senator BOLKUS(South Australia-Minister for Consumer Affairs)(2.22 a.m.) —The very specific answer in respect of the section 260 cases is that Justice Murphy was not on his own when he took the position about which Senator Harradine spoke. Senator Walters —What has that to do with it? Senator BOLKUS —Simmer down for a second, Senator. The answer to Senator Harradine's second question is no. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator HARRADINE(Tasmania)(2.22 a.m.) —Is the Minister saying that the High Court never changes its mind, that majorities in the High Court do not change? My question to the Minister was: Is it conceivable that a future High Court-I would like the Minister's advice on this-may construe section 116 and its extension to the States in the same way as section 116 was construed by Mr Justice Murphy in his decision in the High Court? Is that not a conceivable proposition? Senator BOLKUS(South Australia-Minister for Consumer Affairs)(2.23 a.m.) —The only thing that is certain about life is that night follows day and pigs cannot fly. However, in terms of Senator Harradine's specific question, the position is that the High Court has already decided very clearly and decisively on the interpretation of the words `establishment of religion'. I think that we should take that as a very clear definition of what those words mean. Senator HARRADINE(Tasmania)(2.24 a.m.) —I asked a specific question. Senator Bolkus —You got a specific answer. Senator HARRADINE —No. Is it conceivable that a future High Court could take an attitude and construe section 116 in the same way as Mr Justice Murphy construed it? If that is not conceivable, is that a very serious reflection on the sanity of that particular gentleman? 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator BOLKUS(South Australia-Minister for Consumer Affairs)(2.24 a.m.) —I think it is probably appropriate at this stage to mention-and I am sure that Senator Harradine understands this-that the High Court interprets law by following precedents. It follows what any first year law student is told is the golden thread of law. All I can say is that anything is conceivable, but when we already have a very clear and decisive definition from the High Court regarding the words that Senator Harradine is concerned about, I think that he should not be worried about them. Senator CHANEY(Western Australia-Leader of the Opposition)(2.25 a.m.) —I understand that the Minister for Consumer Affairs (Senator Bolkus) is a lawyer or has had legal training. In light of his response, does he disagree with the comments I made earlier that there has been a complete change in the attitude of the High Court to section 260 of the income tax legislation? Is he suggesting that there is some golden thread of consistency in the decisions of the Court over the last 10 years? If so, I would be very grateful for that assurance. Further, does he accept the fact that the recent decision of the High Court with respect to section 92 represents a very significant change of direction with respect to the traditional interpretation of that section? Does he deny that at least some legal academics, as well as some legal people who have some influence at this stage in the appointment of judges, have expressed considerable enthusiasm for the judicial reasoning of the late Mr Justice Murphy? Certainly there are publications which refer with very great approval to his reasoning. People in the legal profession would see his line of thought on section 116 of the Constitution and in other cases as the line of the future. I am interested in what the Minister has to say. Does he accept that the High Court has made quite radical changes in its decisions in key areas in the past? Does he accept that there is something of a following for the Murphy line-if I may call it that-on judicial interpretation and that there is no guarantee that that line will not be the stuff of legal education of the coming generation of lawyers and is likely to be a quite influential line of thought? 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator BOLKUS(South Australia-Minister for Consumer Affairs)(2.27 a.m.) —Senator Chaney asked three questions. The answer to the first one is no. The answer to the second is that it is very clear that the development of section 260 is dependent on the facts of individual cases. Thirdly, in respect of section 92, Senator Chaney would understand that for a long time there has never been any clear and satisfactory test of section 92. There has been a great deal of confusion. The point that I keep making is that there has been a very decisive definition of the words `establishing any religion'. Senator CHANEY(Western Australia-Leader of the Opposition)(2.28 a.m.) —I may have misheard the Minister. Is he denying the proposition that there has been a very significant change of direction by the High Court in respect of both section 260 and section 92? Senator BOLKUS(South Australia-Minister for Consumer Affairs)(2.28 a.m.) —What I did say in respect of section 260 was that I do not deny that. I do say that the development of the law in that area has been based on the situation and the cases involved and has been decided on the facts. In respect of section 92, I reiterate what I said earlier. For quite a long time there has been a great deal of confusion. There has been an evolving series of cases about section 92. This has been the first unanimous decision by the High Court in relation to section 92. I relate that to the definition of `establishing any religion' taken by the High Court, in which case Mr Justice Murphy was the only dissenter, the rest of the judges having been unanimous in their opinion. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator CHANEY(Western Australia-Leader of the Opposition)(2.29 a.m.) —I ask the Minister, who I understand has some interest in the approach to interpretation that was adopted by the late Mr Justice Murphy, whether he agrees that the United States Supreme Court has at times made quite radical changes to its interpretation of the statements of principle contained in the Bill of Rights. Does the Minister accept, for example, that Brown's case, the famous desegregation case, placed all prior interpretation of the relevant section of the Bill of Rights on its head, and that there was a quite dramatic change of direction in 1954-it may have been 1956, but I think it was 1954-when the United States Supreme Court considered that case? I ask him, on the basis of what he had to say about section 260 of the Income Tax Assessment Act and on the basis of his knowledge of the United States: How in the world can anybody give a guarantee that a totally different judicial interpretation will not be placed on section 116? The likelihood of a totally different interpretation is increased by the sorts of changes to the wording which have been made in the Government's amendment beyond those which relate to the extension of the section to the States, the sorts of changes which I think were admirably dealt with by Senator Bishop when she referred to the judgment of Mr Justice Mason. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator BOLKUS(South Australia-Minister for Consumer Affairs)(2.31 a.m.) —In terms of Senator Chaney's question about changes of direction in the United States Supreme Court, I think it is pretty well known by most lawyers and others that there have been changes of direction. But it is also understood, I think, by most lawyers that the changes of direction in the United States far exceed those that have been witnessed in the High Court of Australia. In terms of completeness of answering Senator Chaney's question and with specific reference to section 92, I refer Senator Chaney to the fact that the recent case on section 92 in fact brought the interpretation of section 92 back to the intention of the founding fathers. I think it is also very fair to say that-- Senator Crichton-Browne —When did that ever bother you? Senator BOLKUS —It seems to bother Senator Crichton-Browne. Senator Crichton-Browne —It doesn't bother you. Senator BOLKUS —Senator Crichton-Browne might have been around at the time; but, to complete the answer, the recent High Court case on section 92 brought it back to the intention of the founding fathers. It is also very appropriate to note that the majority-- Senator Walters —Oh, Nick, for heaven's sake, bring Tate back. Senator BOLKUS —I can do without the assistance of most people, Senator Walters. I make the point that the interpretation by the majority in the Defence of Government Schools case also was very much in conformity with the interpretation of the founding fathers. Motion (by Senator Chaney) put: That the Chairman of Committees report progress and ask leave to sit again. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 32 Noes . . . . . . . . . . . 33 —— Majority . . . . . . . . . 1 —— Alston, R. K. R. McGauran, J. J.Archer, B. R. MacGibbon, D. J.Baume, Michael Messner, A. J.Bishop, B. K. Newman, J. M.Bjelke-Petersen, F. I. Panizza, J. H.Boswell, R. L. D. Parer, W. R.Calvert, P. H. Patterson, K. C. L.Chaney, F. M. Puplick, C. J. G.Chapman, H. G. P. Reid, M. E.Crichton-Browne, N. A. Sheil, G.Durack, P. D. Short, J. R.Hamer, D. J. Tambling, G. E. J. (Teller)Harradine, B. Teague, B. C.Hill, R. M. Vanstone, A. E.Knowles, S. C. Walters, M. S.Lewis, A. W. R. Watson, J. O. W. Aulich, T. G. Giles, P. J.Beahan, M. E. Haines, J.Black, J. R. McKiernan, J. P.Bolkus, N. McMullan, R. F.Burns, B. R. Macklin, M. J.Childs, B. K. Maguire, G. R. (Teller)Coates, J. Morris, J. J.Collins, R. L. Ray, RobertColston, M. A. Reynolds, M.Cook, P. F. S. Richardson, G. F.Cooney, B. C. Sanders, N. K.Coulter, J. R. Schacht, C. C.Crowley, R. A. Sibraa, K. W.Devereux, J. R. Tate, M. C.Devlin, A. R. Walsh, P. A.Evans, Gareth Zakharov, A. O.Foreman, D. J. Brownhill, D. G. C. Jones, G. N.Stone, J. O. Gietzelt, A. T.Baume, Peter Button, J. N. Question so resolved in the negative. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator TEAGUE(South Australia)(2.40 a.m.) —The committee stage of this Bill has, in the light of questions put by myself, by my colleagues and by Senator Harradine, led to clear statements by Ministers of the Government that no absolute guarantee can be given as to the interpretation that might be given by the High Court of Australia in the future, whether in the short term, the middle term or the long term. Senator Harradine asked: Is it conceivable that a future High Court will construe section 116 as did Justice Murphy in the DOGS case. The answer was given by the Minister for Consumer Affairs, Senator Bolkus, who is now at the table-`Of course it is conceivable'. Senator Tate, at an earlier stage, said that he could not give any absolute guarantee as to the kind of interpretation. Along with these clear admissions by the Government that section 116 is very much a hostage to the composition of the High Court- Senator Bolkus —Madam Temporary Chairman, I raise a point of order. I would just like to make a correction here. I did not at any stage say that it is conceivable. I ask Senator Teague to note that in his contribution. Senator Harradine —On the point of order, Madam Temporary Chairman: We can see what the Minister said in Hansard tomorrow. The Minister said, `Anything is conceivable'. Those were his words. We will see that in the Hansard tomorrow. The TEMPORARY CHAIRMAN(Senator Giles) —Order! There is no point of order. Senator TEAGUE —Senator Bolkus is quibbling at a word. I happen to agree with Senator Harradine's recollection that the Minister said, `Anything is conceivable'. In fact, it is impossible to say with absolute certainty-this was a phrase used by Senator Tate earlier this morning-as to what the judgment of the High Court would be. Senator Bishop drew the Senate's attention to this matter in the question that she put summing up her latest speech on this Bill. She asked: Why take what is certain and render it uncertain by changing section 116? As I understand it, there was assent in the committee stage to that question. Nobody has denied that the case law that applied to section 116 as it now stands in the Constitution would, in the same manner, apply to section 116 with new words. As we know, the provisions for amendments to section 116 are in two broad categories: Firstly, to extend the provision of section 116 to States and Territories and, secondly, to extend it from the making of laws to executive and administrative actions. (Quorum formed) 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE The broad thrust of Senator Bishop's argument is that amending section 116 of the Constitution will make the case law that has developed on the existing words no longer applicable in the same way to the new words. No-one has denied that. In fact, the admission in this committee stage of the debate is that this is a grave matter and that it undermines the established understanding in Australia of what section 116 means. In addition to this grave uncertainty, I raise another broad argument that relates to religious freedom being a hostage to the High Court. The clear, express intent of the proposed amendment to section 116 is to extend its effect to the States and the Territories and to Executive and administrative decisions. Therefore, any defect that flows from the extent to which religious freedom, in the words in section 116, is a hostage to the High Court, is compounded by the extension. This is the main burden of my contention. This is all the more reinforced by the way in which there has been no assurance given in response to this assessment that Senator Harradine, Senator Bishop, Senator Crichton-Browne, some other senators and I, have put. I object to extending the terms of section 116 to the States and to Executive action, especially because the jeopardy that exists already with regard to section 116 will be so extended to the States and to Executive action. That is why we go on to instance areas of our particular concern, such as the freedom to have prayers in government schools or the very substantial matter that we so strongly support of the ability of governments to give direct financial assistance to religious schools. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE I note that section 116, both in its present wording and in the proposed amended wording, includes such words as `religion', `establish', `free', `exercise', `impose' and `observance'. Those six words are just some that are crucial to the meaning of the section. What we are in effect doing by extending the application of this section is extending the application of whatever meaning is put on these words by the High Court. To the extent that the High Court is to determine a practical definition of `religion', we are placing our concerns about religious freedom in the hands of the High Court's definition. Depending upon how the word `establish' is interpreted, as against `prohibit', we are placing a power in the High Court to make decisions that affect the exercising of religious freedom in Australia. I believe it is much safer for the States to have their freedoms guaranteed by supreme courts-indeed, by the body of existing statutory powers in the parliaments of the States-and, of course, by the accrued common law. Nobody has put forth the view that there is any jeopardy to religious freedom based upon the actions of the supreme courts in the States or based upon the powers of parliaments to enact laws to safeguard and guarantee our freedoms appropriately. The Bill before the chamber brings in an entirely new factor overriding the guarantors of our religious freedom-that is, the supreme courts, the State parliaments and the common law. It brings into effect a constitutional provision which-and I think I have made this point carefully-is a hostage to the High Court. The High Court is not an elected body, and the Ministers participating in this debate have clearly admitted that no absolute guarantee can be given as to what the High Court would decide in the future and that it is not inconceivable that the minority judgment of Mr Justice Murphy in the notorious Defence of Government Schools case might become a majority or unanimous decision. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE My concern is larger than that of Senator Bishop in terms of the amendment to the Constitution upsetting established case law and therefore making uncertain the foundations that we already feel secure about, given the way in which for 88 years these words in section 116 have had their effect in Australia. I object because of the extensions that may occur. We are placing more than just Commonwealth action and more than just Commonwealth enactment of law in the hands of the High Court in this matter of religious freedom and the prohibition of religious observance; we are placing the decisions and the laws of the States in its hands, and not just enactments but also Executive and administrative decisions. I have yet to hear even the smallest reassurance from Government senators. In this whole debate, right through to almost three o'clock in the morning, I have yet to hear any Government senator put forward any proposition to reassure the Committee. There have not been any speeches by members of the Government or of the Australian Democrats. They have not even tried to offer any reassurance to those of us who are expressing these concerns. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Motion (by Senator Reid) put: That the Chairman of Committees report progress and ask leave to sit again. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 32 Noes . . . . . . . . . . . 33 —— Majority . . . . . . . . . 1 —— Alston, R. K. R. McGauran, J. J.Archer, B. R. MacGibbon, D. J.Baume, Michael Messner, A. J.Bishop, B. K. Newman, J. M.Bjelke-Petersen, F. I. Panizza, J. H.Boswell, R. L. D. Parer, W. R.Calvert, P. H. Patterson, K. C. L.Chaney, F. M. Puplick, C. J. G.Chapman, H. G. P. Reid, M. E. (Teller)Crichton-Browne, N. A. Sheil, G.Durack, P. D. Short, J. R.Hamer, D. J. Tambling, G. E. J.Harradine, B. Teague, B. C.Hill, R. M. Vanstone, A. E.Knowles, S. C. Walters, M. S.Lewis, A. W. R. Watson, J. O. W. Aulich, T. G. Foreman, D. J.Beahan, M. E. Giles, P. J.Black, J. R. Haines, J.Bolkus, N. McKiernan, J. P.Burns, B. R. McMullan, R. F.Button, J. N. Macklin, M. J.Childs, B. K. Maguire, G. R.Coates, J. Morris, J. J.Collins, R. L. Ray, RobertColston, M. A. (Teller) Reynolds, M.Cook, P. F. S. Richardson, G. F.Cooney, B. C. Sanders, N. K.Coulter, J. R. Schacht, C. C.Crowley, R. A. Tate, M. C.Devereux, J. R. Walsh, P. A.Devlin, A. R. Zakharov, A. O.Evans, Gareth Brownhill, D. G. C. Jones, G. N.Stone, J. O. Gietzelt, A. T.Baume, Peter Sibraa, K. W. Question so resolved in the negative. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator CRICHTON-BROWNE(Western Australia)(3.02 a.m.) —If it is good enough for Senator Button to talk about non-existent Liberal drunks on the lawns of Parliament House, he ought to have some sober reflection upon the conduct of his own Ministers in this chamber during divisions. I would not mind so much if he slumbered in somebody else's seat and not mine. Honourable senators interjecting- Senator CRICHTON-BROWNE —Phenyl will not do the job. I understood Senator Bolkus to be referring to a clear definition of religion given in at least one case. Senator Bolkus —Mr Chairman, I raise a point of order. My clear definition was of the term `establishing any religion'. I ask-- The CHAIRMAN —Order! That is not a point of order. Senator CRICHTON-BROWNE —The truth of the matter is that the Hansard cannot be changed by Senator Bolkus. Senator Bolkus —Nor by you either, you cretin. Opposition senators-Withdraw. The CHAIRMAN —Order! Senator Bolkus —I withdraw. Senator CRICHTON-BROWNE —The Minister said there had been a clear definition of religion. I assume he was referring to the Church of the New Faith v. Commissioner of Pay-Roll Tax. It seems to me that one of the difficulties for the future of this proposed constitutional amendment is that there is no clear definition of religion. Notwithstanding the Minister's mistaken claim that there is, there are only two cases that I know of in which a definition has been attempted. The first was the Jehovah's Witness case, in which there was some very real difficulty in the court seeking to determine what the meaning of religion was. The second was the case of the Church of the New Faith v. Commissioner of Pay-Roll Tax. There were at least four different interpretations. Mason and Brennan had a definition between them and Wilson and Deane likewise, but both of those two groups had quite different definitions. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator Burns —What were they? Senator CRICHTON-BROWNE —What were they? Mason and Brennan thought that for legal purposes there were two criteria to religion. The first was a belief in the supernatural being, thing or principle; and the second was the acceptance of canons of conduct in order to give effect to that belief, although canons which offended against the ordinary law were not covered by the protection or immunity given to religion. On the other hand, Wilson and Deane considered that religion was more flexible. Their criteria included as an absolute, firstly, a belief in the supernatural; secondly, ideas relating to a man's nature and place in the universe and his relations to things supernatural; thirdly, the ideas are accepted by adherents so as to encourage observance of a code of conduct in practices having supernatural significance; fourthly, these adherents constitute an identifiable group; and fifthly, these adherents see this conduct and practice as constituting a religion. With that dichotomy in the High Court in determining the definition of religion, we find there is an ever growing number of exotic faiths, or what we might call unconventional or non-mainstream religions. The difficulty is that some of those religions are excessive in their conduct. Under the proposal provided in the Bill, the Commonwealth and the States shall not prohibit the free exercise of any religion. However, because of the poor definition of that provision, the States may find themselves considerably retarded and restricted. They will have no real capacity to put in place legislation to manage the conduct of some of the more exotic religions. Motion (by Senator Gareth Evans) put: That the question be now put. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 33 Noes . . . . . . . . . . . 32 —— Majority . . . . . . . . . 1 —— Aulich, T. G. Foreman, D. J.Beahan, M. E. Giles, P. J.Black, J. R. Haines, J.Bolkus, N. McKiernan, J. P.Burns, B. R. McMullan, R. F.Button, J. N. Macklin, M. J.Childs, B. K. Maguire, G. R. (Teller)Coates, J. Morris, J. J.Collins, R. L. Ray, RobertColston, M. A. Reynolds, M.Cook, P. F. S. Richardson, G. F.Cooney, B. C. Sanders, N. K.Coulter, J. R. Schacht, C. C.Crowley, R. A. Sibraa, K. W.Devereux, J. R. Tate, M. C.Devlin, A. R. Zakharov, A. O.Evans, Gareth Alston, R. K. R. McGauran, J. J.Archer, B. R. MacGibbon, D. J.Baume, Michael Messner, A. J.Bishop, B. K. Newman, J. M.Bjelke-Petersen, F. I. Panizza, J. H.Boswell, R. L. D. Parer, W. R.Calvert, P. H. Patterson, K. C. L.Chaney, F. M. Puplick, C. J. G.Chapman, H. G. P. Reid, M. E. (Teller)Crichton-Browne, N. A. Sheil, G.Durack, P. D. Short, J. R.Hamer, D. J. Tambling, G. E. J.Harradine, B. Teague, B. C.Hill, R. M. Vanstone, A. E.Knowles, S. C. Walters, M. S.Lewis, A. W. R. Watson, J. O. W. Jones, G. N. Brownhill, D. G. C.Gietzelt, A. T. Stone, J. O.Walsh, P. A. Baume, Peter Question so resolved in the affirmative. The CHAIRMAN —The question now is that clause 4 stand as printed. Senator Harradine —Mr Chairman, I raise a point of order in regard to the long title of this Bill. The CHAIRMAN —Order! The honourable senator will resume his seat. That is not the matter that is before the Chair. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Question put: That the clause be agreed to. The Committee divided. (The Chairman-Senator D. J. Hamer) Ayes . . . . . . . . . . . 33 Noes . . . . . . . . . . . 32 —— Majority . . . . . . . . . 1 —— Aulich, T. G. Foreman, D. J.Beahan, M. E. Giles, P. J.Black, J. R. Haines, J.Bolkus, N. McKiernan, J. P.Burns, B. R. McMullan, R. F.Button, J. N. Macklin, M. J.Childs, B. K. Maguire, G. R.Coates, J. Morris, J. J.Collins, R. L. Ray, RobertColston, M. A. (Teller) Reynolds, M.Cook, P. F. S. Richardson, G. F.Cooney, B. C. Sanders, N. K.Coulter, J. R. Schacht, C. C.Crowley, R. A. Sibraa, K. W.Devereux, J. R. Tate, M. C.Devlin, A. R. Zakharov, A. O.Evans, Gareth Alston, R. K. R. McGauran, J. J.Archer, B. R. MacGibbon, D. J.Baume, Michael Messner, A. J.Bishop, B. K. Newman, J. M.Bjelke-Petersen, F. I. Panizza, J. H.Boswell, R. L. D. Parer, W. R.Calvert, P. H. Patterson, K. C. L.Chaney, F. M. Puplick, C. J. G.Chapman, H. G. P. Reid, M. E. (Teller)Crichton-Browne, N. A. Sheil,G.Durack, P. D. Short, J. R.Hamer, D. J. Tambling, G. E. J.Harradine, B. Teague, B. C.Hill, R. M. Vanstone, A. E.Knowles, S. C. Walters, M. S.Lewis, A. W. R. Watson, J. O. W. Jones, G. N. Brownhill, D. G. C.Gietzelt, A. T. Stone, J. O.Walsh, P. A. Baume, Peter Question so resolved in the affirmative. Progress reported. Motion (by Senator Gareth Evans) proposed: That the Senate do now adjourn. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE Senator MacGIBBON(Queensland)(3.19 a.m.) —Because of the unparalleled mismanagement that the Government has subjected this chamber to I am forced to take the time on the adjournment at 3.20 in the morning to make some comment on the aviation policies of the Minister for Transport and Communications (Senator Gareth Evans). I have never seen a time in Australia's history when the management of the Australian airways system was in the state it is in today. Aviation is a specialised field. It is different from most other forms of activity. In this country and around the world we have a great store of knowledge about aviation that has been bought at a very high price. To use that knowledge requires a certain attitude of mind. I do not think we have it from the present Minister for Transport and Communications and we certainly do not have it from this Government. The administration of aviation in Australia in the past was very good-as good as in any other country in the world-but from the time of Donald Anderson onwards there has been a decline, and there has been quite a marked decline in the past few years. Part of that has come from the changing nature of the name of the Department. About 15 years ago it was the Department of Civil Aviation. In the Whitlam years it became the Department of Transport. It went back to the Department of Aviation under Fraser. In this Government it has been both the Department of Transport and the Department of Transport and Communications. Of the very good people who formed the Department of Civil Aviation a number are still there, but their morale has been destroyed by the lack of leadership from this Government, the changing title of the Department, and the lack of direction as to where it is going. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE I do not wish to take up too much time tonight, but there are three critical points I want to talk on very briefly. The first is the Federal Airports Corporation (FAC); the second is the lack of airways facilities, particularly the lack of radar facilities; and the third is the noise at Brisbane Airport. The Federal Airports Corporation, which was set up by this Government, is an undisguised failure. It enjoys the total opposition of the aviation industry. In its short history-it has been in existence only since 1 January this year-it has had a very complex life. The Government tried to get out of the costs of running the airways systems of Australia by setting up the FAC to look after the airports and the Civil Aviation Authority to look after the airways side of it. It created a board which put at least $1m onto the cost of administration of the airfields in this country. It paid the board members a salary, gave them perks and conditions. A number of the people on the board know nothing at all about the aviation industry. The Government told the Federal Airports Corporation that it was not going to fund it. It said, `You will apply the user pays doctrine and recover your costs from the aviation industry'. It was quite negligent of the fact that the aviation industry in Australia has a very small base. When we come to paying for services, this Government is very keen on the user pays doctrine. I have no objection to paying for services that are delivered, but when we talk about the user pays doctrine, somebody has to get back to a few basic principles. With this Government it means we often pay twice, three times or four times. Everyone pays personal income tax. Many people pay company tax through companies with which they are associated. We all pay excise duties, sales taxes and Customs duties. The reason we pay those to a central government in the form of taxation is to provide essential services. If the Government is going to say to the aviation industry that it has a user pays doctrine and that it pays directly for the airports and so on that it uses, the Government has an obligation to free those people from a proportion of their personal income tax, from their sales tax, from their excise duty and all the rest of it. 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE The other fault with the user pays doctrine is that it is used as an excuse for booking up very high expenses without asking the customer whether he wants them. As I had to say to the commercial manager of the Federal Airports Commission last week, he cannot go into Myers and book up several thousand dollars worth of goods to my account without my consent, yet that is precisely what he is doing in the management of the airfields around the place. If the Government believes in a user pays concept, then instead of setting up a Federal Airports Corporation to spend money on my behalf and on behalf of other Australians, it has to set up individual boards of management for the 17 airports controlled by the Federal Airports Commission. The majority of the members of those boards of management should be elected by the users of the airfield and the users should elect the chairman of the board. In other words, if there is going to be a user pays doctrine, the people who are going to be billed have to say what the expenditure will be. A quorum having been called and the bells having been rung- 31 May-1 June 1988 SENATE SENATE 31 May-1 June 1988 31 May-1 June 1988 SENATE The PRESIDENT —Order! The bells having been rung for three minutes and there being no quorum present, the Senate stands adjourned until 10 a.m. today. The names of those present will be recorded by the Clerk. The following names were then recorded- (The President-Senator the Hon. Kerry Sibraa) Alston, R. K. R. MacGibbon, D. J. Baume, Michael McKiernan, J. P. Bishop, B. K. Panizza, J. H. Boswell, R. L. D. Parer, W. R. Calvert, P. H. Patterson, K. C. L. Chaney, F. M. Puplick, C. J. G. Chapman, H. G. P. Reid, M. E. Crichton-Browne, N. A. Short, J. R. Hill, R. M. Tambling, G. E. J. Knowles, S. C. Vanstone, A. E. McGauran, J. J. Watson, J. O. W. Senate adjourned at 3.30 a.m. (Wednesday) The following answers to questions were circulated: (Question No. 172) Senator Vallentine asked the Minister representing the Minister for Primary Industries and Energy, upon notice, on 18 December 1987: (1) What revenue did the Commonwealth receive for uranium oxide from each of the companies involved in the mining of uranium in Australia in (1) 1981; (b) 1982; (c) 1983; (d) 1984; (e) 1985; (f) 1986; and (g) 1987. (2) How much in royalties has been paid to the States or Territories in which uranium has been mined in (a) 1981; (b) 1982; (c) 1983; (d) 1984; (e) 1985; (f) 1986; and (g) 1987. (3) How much has been paid by companies involved in uranium mining since 1981 for environmental control and land restoration. (4) How many people have been employed in Australia in the production and export of uranium oxide since 1981, and how do these figures break down into the different employment categories. (5) How much money has been spent on nuclear research by the Australian Atomic Energy Commission and its successor, Australian Nuclear Science and Technology Organisation, with respect to (a) the Synroc process; (b) enrichment; (c) environmental control; (d) uranium exploration; and (e) radiation practices in the uranium industry. (6) How much money has the government spent on the Supervising Scientists's Office in (a) 1981; (b) 1982; (c) 1983; (d) 1984; (e) 1985; (f) 1986; and (g) 1987. (7) How much money has been spent by the Northern Territory with respect to the supervision of uranium mining, work practices in uranium mining and environmental control of uranium mining since 1981. (8) How much money has been spent on the infrastructure of uranium mines by (a) the Federal Government; (b) the Northern Territory; and (c) South Australia, since 1981; (9) What has been the annual expenditure of the Safeguards Office in (a) 1981-82; (b) 1982-83; (c) 1983-84; (d) 1984-85; (e) 1985-86; and (f) 1986-87. (10) Has there been any expenditure on uranium export promotion by the Department of Trade in (a) 1981-82; (b) 1982-83; (c) 1983-84; (d) 1984-85; (e) 1985-86; and (f) 1986-87; if so, what are the annual figures for each financial year. Senator Cook —The Minister for Primary Industries and Energy has provided the following answer to the honourable senator's question: (1) The Commonwealth receives taxation revenue from all companies involved in uranium mining. Any public information on taxation would generally be available in company reports. The Commonwealth also receives revenue from a levy on exports of uranium produced in the Alligator Rivers Region of the Northern Territory. Information on revenue received is available from the budget papers and is as follows: REVENUE RECEIVED FROM THE CUSTOMS LEVY ON URANIUM EXPORTS $ 1981-82 ... 209,195 1982-83 ... 339,004 1983-84 ... 369,765 1984-85 ... 366,454 1985-86 ... 351,468 1986-87 ... 3,102,974 (2) The Commonwealth receives royalty only from uranium mining operations in the Northern Territory. Information on royalty payments to the Northern Territory is contained in the budget papers and is as follows: PAYMENTS TO THE N.T. IN LIEU OF ROYALTIES $M 1981-82 ... 1.2 1982-83 ... 3.7 1983-84 ... 4.4 1984-85 ... 4.1 1985-86 ... 4.4 1986-87 ... 4.5 Uranium mining operations were also conducted at Mary Kathleen in Queensland up to 1982. Royalties from the Mary Kathleen mine are the responsibility of the Queensland Government and information on those royalties should be sought from that Government. Answers to Questions...31 May and 1 June 1988 SENATE 3295 3296 SENATE 31 May and 1 June 1988...Answers to Questions (3) The Commonwealth does not have information on the amounts of money expended by uranium mining companies in meeting their environmental obligations and this should be sought from the companies concerned. However, in relation to the Ranger mine which operates under Commonwealth law, the Commonwealth holds security paid by Ranger to be used in the rehabilitation of the mine should it close at any time. The security held at present totals $61 million and must be maintained at a level at least equal to an annually updated estimate of the cost of rehabilitation. (4) The Ranger and Nabarlek mines have a workforce of around 500. Olympic Dam will have around 1,000 when it commences production. The details of the categories of employment are best obtained from the companies concerned. (5) The Australian Nuclear Science and Technology Organisation (ANSTO) has provided the following information for the years 1981-82 to 1986-87: ANSTO does not capture expenditure in specific terms for all of the areas requested. Estimates have therefore been made to determine the expenditure in the specified areas. These figures reflect expenditure in terms of direct salaries, plant and equipment, and outside contracts. No allowance has been made for administrative overheads. ($'000) 1981-82 82-83 83-84 84-85 85-86 86-87 (a) The Synroc Process ... - 888 1,395 1,677 3,570 1,929 (b) Uranium Enrichment ... 1,993 2,243 *...- - - - (c) Environmental Control in the Uranium Industry ... 75 89 101 107 118 126 (d) Uranium Exploration ... - - - - - - (e) Radiation practices in the Uranium Industry ... 56 73 71 88 85 115 * Research on uranium enrichment technology ceased May 1983. (6) The Office of the Supervising Scientist has provided information on expenditure as follows: EXPENDITURE ON THE OFFICE OF THE SUPERVISING SCIENTIST 1981-82 TO 1986-87 $ 1981-82 ... 4.11 1982-83 ... 6.05 1983-84 ... 4.58 1984-85 ... 4.82 1985-86 ... 5.53 1986-87 ... 6.14 (7) Information on this matter should be sought from the Northern Territory Government. (8) The great bulk of expenditure on infrastructure to support uranium mines is provided by the companies involved. The Commonwealth provided $20.96 million for essential headworks at Jabiru in the Northern Territory-Jabiru is not exclusively a mining town. The township of Roxby Downs in South Australia is being built by the Olympic Dam joint venturers with the Commonwealth providing only those services which would normally be available to the general community. Information on any expenditure by the Northern Territory and South Australia on infrastructure should be sought from those Governments. (9) Annual salaries and administrative expenditure for the Australian Safeguards Office for the years 1981-82 to 1986-87 is as follows: Salaries Adminis- trative Total $ $ $ 1981-82 ... 272,834 16,324 289,158 1982-83 ... 315,252 24,108 339,360 1983-84 ... 336,145 22,333 358,478 1984-85 ... 279,526 22,993 302,519 1985-86 ... 388,387 33,069 421,456 1986-87 ... 487,000 45,000 532,000 (10) No. Senator Cook —On 9 December 1987 (Hansard, page 2748), Senator Sanders asked Senator Walsh a question without notice concerning proposed logging near Clumner Bluff. The following is the answer to the honourable senator's question: The Department of Primary Industries and Energy received advice from the Tasmanian Forestry Commission (TASFC), in accordance with the provisions of the Memorandum of Understanding (MOU), of proposed logging operations in a coupe know as `Clumner' within State Forest which is adjacent to the Walls of Jerusalem National Park. The coupe straddles the boundary of the Central Plateau National Estate place, but the area is not pristine as logging has previously been undertaken in surrounding coupes in 1979/80 and 1985. The TASFC provided the Department of Primary Industries and Energy with advice on protection of National Estate (NE) values and the views of the Australian Heritage Commission were also sought. The Australian Heritage Commission subsequently advised the Department that Clumner was subject to consideration as a possible World Heritage `qualifying area' by the Lemonthyme and Southern Forests Commission of Inquiry and that, in the Commission's view, logging should not be undertaken until the Inquiry has reported its findings. After careful consideration of all the relevant factors, the Government decided, on balance, not to defer the proposed logging. It was conscious of the fact that logging had taken place in the area previously on a satisfactory basis, that measures would be taken to protect the environmental values of the site and that there were no readily accessible alternatives in the region to the particular site involved, which necessitates use of specialised cable logging equipment. The company involved in exporting pulpwood from the area was notified on 18 January 1988 by the Department of Primary Industries and Energy that the requirements of the consultative process under the MOU had been fulfilled and I understand that operations commenced shortly thereafter. The contractor involved in the cable logging operations has sought compensation from the Commonwealth, claiming re-imbursement of costs incurred as a consequence of the Commonwealth's delayed authorisation of operations in the Clumner coupe.