COMMONWEALTH OF AUSTRALIA
SPEECHI BY
The Rt. Hon. SIR ROBERT MENZIES,
M. P.,
ON
CONSTITUTION ALTERATION ( PARLIAMENT)
BILL 1965
AND
CONSTITUTION ALTERATION ( REPEAL OF
SECTION 127) BILL 1965
[ From the Parliamentary Debates I11th November 1965]
CONSTITUTION ALTERATION
( PARLIAMENT) BILL 1965.
Bill presented by Sir Robert Menzies,
and read a first time.
Second Reading.
Sir ROBERT MENZIES ( Kooyong-
Prime Minister) [ 8.01.-I move--
That the Bill be now read a second time.
This is a Bil of immense importance but
of not great complexity in itself. It is
designed to break the nexus-a term
which we have all come to understandcreated
by section 24 of the Commonwealth
Constitution. Section 24 statesand
I want -to state this matter with all
14410/ 65 possible clearness because I think that
is vital to an understanding of it-
The House of Representatives shall be composed
of members directly chosen by the people
of the Commonwealth, and the number of such
members shalt be, as nearly as practicable, twice
the number of the senators.
The phrase as nearly as practicable, twice
the number of the senators is something
that has to be borne in mind in the
whole parliamentary and public consideration
of this matter. I do not undertake to
be dogmatic as to what is meant by the
phrase as nearly as practicable because,
after all, if there are 60 senators
it is quite practicable to have 120 members
of this House, yet we have 122 plus
2 who do not have a general vote. But
it is quite clear that as nearly as
practicable imposes genuine limits, however
they may be defined, on the number
of people in this House.
What are the facts? In 1949, following
the increase in 1948 of the House of
Representatives from 74 to 121 members
with full voting rights and of the
Senate from 36 to 60 senators, each
member of this House represented,
on the average, 66,000 people. Today,
such is the growth of -the population that
each member, on the average, represents
not 66,000 people but 94,000 people.
Without a constitutional change, how far
can we increase the ' number of members
of this House, increasing the numbers to
do justice and to give effective representation
to the people of Australia, who have
now reached I1If million and who could
easily become 15 million, 18 million or
million in due course? Without a
constitutional change how far can we increase
the membership of this Houseby
two or three or four-because the
words of the Constitution are as nearly
as practicable
I would not care -to commit myself to the
proposition that we could increase the
number of members of this House by more
than two or three or, in a handsome moment,
four. I would not like to say that we can
do better than that. We cannot discuss this
problem, nor can our people discuss it, in
a practical way without bearing in mind
the current and now well established method
of electing the Senate-a method which
means that in a vote for five senators, as
at present, barring casual vacancies, one
side may get three and the other two, but
that in a vote for six senators all the chances
are that each political side will secure three
senators, however the political sides may be
made up. If that happened in every State we
would have a perpetually deadlocked Senate
with 30 senators on each side. An habitually
deadlocked Senate would mean that at any
stage a government chosen at a general
election for the House of Representatives
-and this is how governments are chosen
in our country-could be rendered impotent.
This would not be good for parliamentary
democracy and, therefore, would not ' be
good for the people of Australia. The practical
problem, therefore, is whether we
should continue the constitutional system under which the House of Representatives
should be limited in numbers to twice the
numbers of the Senate.
Having said that-because that is the vital
question-I start with the Senate, whose
functions, properly understood, I profoundly
respect. At present there are 60 senators-
10 from each State. Originally, before the
increase of the House of Representatives in
1948, there were 36 senators, three retiring
from each State each three years. At present
there are 60 senators-lO from each State
-and they are elected five at a time in
each State. So at each Senate election there
is a reasonable probability of one side or tf
other having a majority of three to M-W
Should the Senate be increased by one
senator per State-that is, to 66--each
Senate election under normal circumstances
would require the choice of one half of 11I
senators, that is, of five and a half senatcft
which, as our late lamented friend EucW
would have said, is absurd. The only practical
course under those circumstances
would be to choose six at one election and
five at another. I invite honorable members
who have implicated themselves in the
mathematics of elections to realise the confusion
that course could produce.
Suppose that the Senate were increased
in numbers to 72. I mention this because at
present you cannot increase the membership
of this House, whatever the population of
Australia may be, without increasing tl~
numbers in the Senate. Suppose we saW
that the other propositions to which I have
referred are not good and that we will
increase the numbers of the Senate to 72.
That would mean 12 senators from each
State, six to be elected at each electio
Under the present system for Senate elaW
tions-and nobody has been able to suggest
a better system-the election of six senators
from each State would almost guarantee in
every State the election of three Government
senators and three Opposition senators and
so we would produce a deadlocked Senate,
with every motion and every amendment
defeated. I remind honorable members that
section 23 of the Constitution states-
Questions arising in the Senate shall be determined
by a majority of votes, and each senator
shall have one vote. The President shall in all
cases be entitled to a vote; and when the votes
are equal the question shall pass in the negative.
I have always rather liked that phrasethe
question shall pass in the negative".
What it means is that the question will not
be passed at all but will be resolved in the
negative. That is the position in the Senate.
A deadlocked Senate would not be any good
to a government in this House, elected by
the people, because nobody could pass a
resolution and nobody could pass an amendment.
Therefore, if there is to be a Senate
in which a clear majority becomes possible,
the numbers of the Senate would need to
be such under the existing Constitution that
an odd number would be elected every three
years. Having mentioned the present odd
number of 5, 1 must, therefore, go on to
next odd number of 7. If 7 were to be
cted every three years there would be a
Senate of 84 members and under the Constitution
as it now stands, the House of
Representatives would have 168 members.
* Mr. Cope-A member would not have
leopportunity to ask a question.
Sir ROBERT MENZEiES.-I think the
honorable member would, because he always
asks such good questions. I wait for
them. But the point taken by the honorable
member is right. Nobody pretends for a
moment that we want 168 members in the
House of Representatives. Most people, realising
the duties of members of the
Parliament and the enormous and growing
population that must be represented, would
say: We ought to have 130 or 135 or
" atever it may be, but we do not want
1W8." I want people to understand that,
under the Constitution as it is now, if this
referendum were defeated, we could not
increase the number of members in this
,,,, ouse to fewer than 168 if at the same time
Wwere to increase the membership of the
enate to an extent that made that institution
workable.
This seems to me, and I think to all of us,
to be quite clear. It follows from this that,
as long as the present section 24 remains,
the membership of this House must stand
still or vary by perhaps only one or two,
unless a massive increase is made in the
numbers in the Senate. Therefore, this Bill
has one simple purpose, and I hope that the
people of Australia will accept it as an expression
of the joint judgment, wisdom and
opinion of this House. We propose an
amendment to break the nexus. Should
someone be a little anxious as to whether we will in an extravagant way want to
increase our numbers in some ballooning
form, we propose two matters in this
amendment to afford protection. First, we
will protect State representation in the
Senate. It was said to me at one stage that
perhaps in some States there might be a
fear that, with all this changing of the exist,
ing rules, individual States would have
fewer senators. We have sought to meet
this. We have provided in this amendment
that all original States, which under the
existing Constitution are entitled to no
fewer than 6 senators, will be entitled to no
fewer than 10 senators. In other words, we
protect the existing State position in the
Senate. Secondly, we believe-I know that my
friend, the Leader of the Opposition ( Mr.
Calwell), will agree, because I have
read what he has had to say-that
there must be a limit on the increase
of the membership of the House
of Representatives. The Bill provides that
the number of members of this House shall
be ascertained by dividing the number of
people of the States by such number as is
for the time being determined by the
Parliament, that number being not less than
80,000. In other words, the quota for
electorates is to be not less than 80,000. I
point out for the information of honorable
members that -if the Parliament decided that
the quota should be 80,000, with today's
population the membership of this House
would be 143. If the Parliament decided
that the quota should be 85,000-it cannot
be less than 80,000 but it can be morethe
membership of the House would be 135.
I give these simple statistics to illustrate
the real nature of the problem with which
we must cope. I want to emphasise to the
House and to the people of Australia that
the defeat of these proposals would inevitably
mean that any increase in the membership
of the House in future would be
extravagant. We would have double the
number of an increased Senate, as I have
indicated, or no increase at all. I am one
of the oldest inhabitants of this place. I
know exactly what honorable members
opposite are about to say and I am not
sure I do not agree with them. I look
around the House and I see my old friend,
the honorable member for Darling ( Mr.
Clark), who is a contemporary of mine in
this place. Going back over this time, anybody
who knew anything about the business
of the Parliament would never disagree
with me for one moment when I say that
the problems bein~ g looked at by honorable
members today are three or four times more
weighty and more complex than they were
when I first came into this House. I know
this at first hand. I am not an idler; I have
worked all this time and I know what it
means. I would think it dreadful if the
people were to cast a vote that permitted
the members of this House to represent not
50,000 or 60,000 but even more than the
120,000 represented by my colleague, the
Attorney-General ( Mr. Snedden), in Bruce
and by the honorable member for Lalor
( Mr. Pollard), whose presence there has
been so encouraging that the population
has risen rapidly. But it is true that we have
these big electorates. If in ten years' time
we had a situation in which every member
of this House represented 120,000 electors,
I would think that this was an outrage to
the effective democratic representation of
the people. After all, we are the Parliament
of the nation. We disagree amongst ourselves.
We may have all sorts of opinions
of each other. But we have the supreme
duty to represent our people and to represent
them effectively. To represent them
effectively, there must -be a proper proportion
between the number of members of this
House and the number of electors in the
nation as a whole.
In moving the second reading of the Bill,
I have not gone into any little side alleys,
because my experience has been that these
problems have to be seen at the centre.
They must be seen with clarity if a change
is to be made in the Constitution.
As for this one, I profoundly hope and I
deeply believe that when this is adequately
explained to the people of Australia they
will say Yes and they will change this
rule and thereby make a tremendous contribution
to making this Parliament an effective
agent of the popular will.
Debate ( on motion by Mr. Caiwell)
adjourned. CONSTITUTION ALTERATION
( REPEAL OF SECTION 127) BILL 1965.
Bill presented by Sir Robert Menzies, and
read a first time. Second Reading.
Sir ROBERT MENZIES ( Kooyong-
Prime Minister) move-
That the Bill be now read a second time.
The purpose of this Bill is to alter the
Constitution by repealing section 127. That
section provides that in reckoning the numbers
oi the people of the Commonwealth,
or of a State or other part of the Commonwealth,
Aboriginal natives shall not be
counted. The Government believes that the
first opportunity should be taken to have it
repealed and proposes to submit the Bill to
referendum at the same time as -the refer
dum on altering the method of determiniW
the number of members of the House of
Representatives. The Joint Committee on
Constitutional Review recommended repeal
in its report-that is the 1959 report-at
paragraph 398.
No doubt the principal reason for the
inclusion of section 127 in the Constitution
in 1900 was the practical difficulties that
would be encountered in satisfactorily
enumerating the Aboriginal population.
There were no doubt real difficulties then
in ensuring that a census of Aborigines
could be effectively taken. In modern times,
this is not so. Moreover, section 127 is not
related to the qualification of Aborigines
as voters in Commonwealth elections. Section
41 of the Constitution has a Iway_
guaranteed an Aboriginal the right to vt
at Commonwealth elections if he had*~
Tight to vote at elections for the more
numerous House of the Parliament of a
State. The Commonwealth Parliament itself
has removed all disabilities in respect
voting at Commonwealth elections so 1
as Aborigines are concerned. Consequently,
Aborigines are now entitled to enrol and
to vote and they should, in the view of the
Government, be recognised as forming part
of the population of their State for any
purpose. I think I should at this point make reference
to the Government's decision not to
put forward any amendment of section
51 ( xxvi.). I mention this because the Deputy
Leader of the Opposition ( Mr. Whitlam)
had a question on the notice paper about
it and I am now, in effect, answering that
question. Section 51 ( xxvi.) provides that
the Parliament may make laws for the peace,
order and good government of the Commonwealth
with respect to the people of any
race, other than the Aboriginal race in any
State, for whom it is deemed necessary to
make special laws
Some people wish-and indeed the wish
has been made clear in a number of petitions
presented to this House-to associate
with the repeal of section 127 the removal
of what has been called, curiously to my
mind, the discriminatory provisions of
section 51 ( xxvi.). They want-and I understand
their view-to eliminate the words
" other than the Aboriginal race in any
ate on the ground that these words
mount to discrimination against Aborigines.
In truth, the contrary is the fact. The words
are a protection against discrimination by
the Commonwealth Parliament in respect
eMoifc hA borigines. The power granted is one
enables the Parliament to make special
Mws, that is, discriminatory laws in relation
to other races-special laws that wo * uld
relate to them and not to other people.
The people of the Aboriginal race are
specifically excluded from this power. There
can be in relation to them no valid laws
which would treat them as people outside
the normal scope of the law, as people who
do not enjoy benefits and sustain burdens
in common with other citizens of Australia.
What should be aimed at, in the view of
the Government, is the integration of the
s boriginal in the general community, not
t state of affairs in which he would be
treated as being of a race apart. The mere
use of the words Aboriginal race is not
discriminatory. On the contrary, the use
toof mth e words indentifies the people protected
discrimination when it is remembered
hat section 51 ( xxvi) was drafted to meet
the conditions that existed at the end of
the last century-for example, the possibility
of having to make a special law dealing
with kanaka labourers. The power has, in
fact, never been exercised. If the words
were removed, as some people suggestand
there is quite an attractive argument
in favour of that-it would change dramatically
the scope of the plenary power conferred
on the Commonwealth. That must
be borne in mind. If the Parliament had,
as one of its heads of power, the power
to make special laws with respect to the
Aboriginal race, that power would very
likely extend to enable the Parliament to set up, for example, -a separate body of industrial,
social, criminal and other laws relating
exclusively to Aborigines. It is difficult
to see any limitations on the power to do
any of these things, because the existing
power is a plenary power in the Constitution.
Conferring such a new power could have
most undesirable results.
The Joint Committee was quite clear in
its recommendation that section 127 should
be repealed. In relation to the question that
I have just been discussing, namely, conferring
a power on the Commonwealth to
make laws with respect to Aborigines, the
Committee, at the time it ceased its deliberations
in 1958-and I mention this as
an historic fact-had, paragraph 397 of the
report states, given some consideration to
the very important question as to whether
the Commonwealth Parliament should have
an express power to make laws with respect
to Aborigines, and representations from
various quarters advocated the adoption of
a recommendation to this effect. The Committee
had, however, not completed its
inquiries on all the issues involved and consequently
no recommendation has been
made. I have quoted this because I do not
want to have it said against anyone on the
Committee that he has committed himself.
This is not true: This was left open. What
I have said will show that the removal of
the exclusion of the Aboriginal race from
the scope of section 51 ( xxvi), that is, to
include them within the power, is not the
simple matter it is often represented to be.
The inclusion would, in the view of the
Government, not be in the best interests
of the Aboriginal people.
Returning to the Bill before the House, the
matter can be simply put by saying that
section 127 is completely out of harmony
with our national attitudes and with the
elevation of the Aborigines into the ranks
of citizenship which we all wish to see.
To sum up, three possibilities have been
examined: First, to omit from section 51
( xxvi.), the words other than the Aboriginal
race in any State This would give the
Commonwealth Parliament power, a plenary
power, to make laws, unlimited except hy
such general provisions as those of section
92, with respect to Aborigines-for example,
industrial laws, social services laws,
health laws and so forth. Is this desirable?
I t
I have endeavoured to point out that we
do not think it is. Should not our overall
objective be to treat the Aboriginal as
on the same footing as all the rest, with
similar duties and similar rights? Section
51, placitum ( xxvi.), does not create discrimination
in the case of the Aboriginal.
It avoids it. The second proposal was to
repeal ( xxvi.) altogether. Quite frankly,
this has its attractions. The power
has never been exercised. Yet, in the
modern and complex world which changes
around us almost every week we might
conceivably wish to employ it. For example,
we have great obligations in the
case of Nauru. We might, some day,
under some circumstances, wish to pass
a special law with regard to Nauruansthe
people of the Nauruan race-in order
to help them to be re-established somewhere
outside their existing island. We
might. Therefore, it would be unwise,
perhaps, -to deprive ourselves of the
machinery for dealing with a problem of
that kind should that problem arise. The
third proposal that has been made-and I
say this with great deference to some of my friends and supporters who have
mentioned it-is to add a new provision
rendering invalid laws regarding Aborigines
by, for example, invalidating any Commonwealth
or State discrimination on the
grounds of race.
Well Sir, all I can say, with lively
memories of what happened in the United
States of America over their amendments
-over what they called the " Bill of
Rights", the crop of litigation, and the
reduction -to terms of somewhat wide and
rhetorical expressions-is that any provision
of that kind would produce a cro
of litigation. It would involve argumer
of definition. It could readily invalidate
laws which, while designed to protect the
special interests of Aborigines, could be
held technically to discriminate either for
or against them. Sir, I repeat that t~
best protection for Aborigines is to treo
them, for all purposes, as Australian
citizens. Debate ( on
adjourned. motion by Mr. Calwell) eq
BY AUTHORITY: A. J. ARTHUR, COMMONWEALTH OOVERNMENT PRINTER, CANBERRA