COMMONWEALTH OF AUSTRALIA
SPEECH BY
The Rt. Hon. SIR ROBERT MENZIES,
M. P.,
ON
CONSTITUTIONAL REVIEW
[ From the " Parliamentary Debates," 1st April 19651
Sir ROBERT MIENZIES ( Kooyong-
Prime Minister) [ 11.41].-I hope that I will
not disappoint either the Leader of the
Opposition ( Mr. Caiwell) or anybody else
in this House when I say that I have no
intention whatever of making a party debating
speech. The Leader of the Opposition
did not do so either. I have no desire to do
it because I agree that the issues of constitutional
change ought not as a rule-and
there may be some exceptions to this-to be
settled or thought of in purely party
terms. Indeed, I am able to say that I find
myself in agreement with much of what the
honorable gentleman has said. I think he is
a little optimistic, if I may put it to him,
when he asks that all sections of the report
be placed before the people at a referendum
without further delay, because he will agree
with me that experience indicates that if that
were to be done the whole lot would be
lost. A great mass of proposals for constitutional
change cannot be put before the
people with any real expectation of getting
them through. It has been tried and it has
failed. The whole problem of constitutional
change in our country is bedevilled by the
fact that the disposition of the people is to
say: " When in doubt, vote The
change suggested needs to be crystal clear.
It needs to be one which does not lend
itself to misinterpretation or to absurd fears
3900/ 65. which are occasionally promoted. These requirements
are not easy to attain, but simplicity
on a matter which really engages the
public attention and to which the people
will direct their minds thoughtfully is
essential. I do not propose to cover the whole field
that the honorable gentleman has dealt with,
and for one very good reason-I am not
here to indulge in the luxury of offering a
lot of personal views on a variety of matters.
The Government has, in fact, under its
immediate consideration two aspects of the
reforms which have been indicated, and I
think I can say something about those, but
in relation to others I am not in a position
at present to make any definitive statements
of policy on behalf of the Government.
When I can, of course I will, because I do
not at all underestimate the importance of
these matters. One of them, the question of
the division of the Commonwealth into
electorates, on which the report has made
proposals which are supported by the
honorable gentleman, will no doubt be the
subject of discussion when we introduce
electoral legislation, because some of the
points he has made, particularly about
differen-tials, will very legitimately then be
open for discussion. I do not want to anticipate
that, but I do want to say something
which I do not think is at all controversial
about two of these matters. I will start with
the last one mentioned by the honorable
member. With the proposition that section
127 should be repealed we entirely agree.
When any referendum is instituted that most
certainly must be one of the questions. It is
completely out of harmony with experience
and modern thinking and, indeed, with a
great deal of our own legislation in this
Parliament relating to Aborigines. The retention
of the old fashioned provision in
section 127 is quite out of harmony with
the elevation of the Aborigines into the
ranks of citizenship. But it has been customary,
and the wish has been made clear
in a number of petitions, to associate with
the repeal of section 127 the removal of
what has been called the " discriminatory
provisions" of section 51. On that I would,
with great respect, challenge the assumption
that is made. May I read the provision to
the House in order to refresh its memory.
Section 51 states-
The Parliament shall, subject to this Constitution,
have power to make laws for the peace, order, and
good government of the Commonwealth with
respect to:-
( xxvi.) The people of any race, other than the
aboriginal race in any State, for
, whom it is deemed necessary to make
special laws:
It has been suggested that that provision discriminates
against the Aborigines of Australia.
I would have thought that the
contrary was the fact. Parliament has been
given power to make discriminatory laws in
relation to the people of any race-special
laws which would relate to them and not to
other people; laws which would treat them
as people who stood outside the normal
grasp of the law, enjoying its benefits and
sustaining its burdens in common with all
other citizens. I would have thought that
the perfect state of affairs in Australia would
be that any Aboriginal citizen felt that he
did' stand equal with every other citizen before
the law, enjoyed its benefits and took
his own part on a proper basis in sustaining
its burdens. I have no doubt whatever that
this provision in the Constitution was
designed having regard to conditions that
existed at that time and the possibility of
having to make a special law dealing with,
for example, kanaka labourers-perhaps a
special law to deport them from the country
or to confine them to some particular area.
There was a good deal of discussion about this at the time this provision was framed.
Therefore the framers of the Constitution
inserted this provision, but they left out the
Aboriginal race because they did not want
to discriminate against the people of the
aboriginal race. All we have to do now is to
cross out this reference " other than the
aboriginal race" and we confer on this
Parliament a power to make a special law
which relates to the Aborigines and to no
other people.
Mr. Reynolds.-But-
Sir ROBERT MENZIES.-If you do not
mind I want to pursue this. I do not think
it is at all out of place. There is a second
point about it, and this does concern me.
If the Commonwealth, as one of its heads
of power under section 51, has the right to
pass special laws with respect to the
Aboriginal race, I wonder what limitations
will be on that separate head of power.
Would this enable the Parliament to set up
a separate body of industrial laws relating
to Aborigines or some other kind of lawhealth
laws, quarantine laws or laws under
any of the other powers of the Parliament?
It may well be true that it could because,
make no mistake about it, this would be a
head of power standing not inferior to any
other power contained in section 51. That
is a matter that requires a great deal of
thought. I do not want honorable members
to think that I have arrived at some positive
conclusion about it. I am raising it
here in order to indicate that it wants a
good deal of thought and that we would
want to give it a great deal more investigation
than we have before we favoured
changing the provision in section 51. But
we would be very happy to see the end of
qection 127.
The other matter about which I wanted
to say something concerns section 24. The
Leader of the Opposition has said most of
it, and, if I may say so, very well and
clearly. I do not want to subtract from what
he : has said. I just want to add a little to it.
Section 24 of the Constitution is a puzzler.
It reads-
The House of Representatives shall be composed
of members directly chosen by the people of the
Commonwealth, and the number of such members
shall be, as nearly as practicable, twice the number
of senators.
I confess that I do not ' know what " as
' nearly as practicable" means. If it means
mathematically practicable, then we must
have 120 members and that is the end of it.
We have never had exactly -twice as many
members as senators that I can -recall in the
history of the Parliament, but we have been,
in a sense near enough. Today we are a
couple over that provision, with two other
members full of hopes. I do not think anybody
seriously t'hinks, that there could -be
an effective challenge at law to the existing
numbers. Nor, indeed, would I think that
if we went to 123, 124 or 125 members
we would necessarily violate the provision,
because what is practicable involves consideration
of hard -facts other than mathematical
considerations. Still, it would bea
bold man who would think that we could
make any sizeable addition to the numbers
of the House without incurring the risk
of running foul of section 24. The moment
somebody indicates that somebody is thinking
about increasing the number of members
of the House we will get the orthodox
complaint in some quarters that there are
already too -many members of Parliament.
This is the cheapest cry in the world, but
it is always produced. A good deal of
unthinking criticism is put forward when
any suggestion is made that the number of
members -be increased. I have read some of
it in the last few days. It is quite unthinking.
It therefore becomes necessary that I
should say what the Leader of the Opposition
' has already said. There is one single
fact that cannot be ignored if section 24
and the little collection of sections stand as
they are. Unless you are to have a perpetually
deadlocked Senate, you cannot
increase the numbers in the Senate except
by 24. If you increase the total number of
senators by 12 it will mean that at each
election 6 senators are elected for each
State. The result will be 3 elected on each
side. There is the very definition of a perpetual
deadlock. So if you are to have a
Senate that is workable-an unworkable
Senate would be a menace-you must
increase the number of senators so that at
each election each State will elect 7 senators.
You will then have 4 on one side and
3 on the other. This means increasing the
size of the Senate ' by 24. That would mean
increasing the size of the House -by 48
members. Mr. Uren.-Too many. Sir ROBERT MENZIES.-If they all
were like my friend I would be quite happy,
' but nobody in this place at this time thinks
it is necessary to increase the size of this
House -by 48 -members. We may think it
desirable to increase it by 10, 12 or 15 but
not ' by 48. Such a proposition would not
enter anybody's mind. Yet we are presented
with a choice in which we will make either
no increase in -the numbers, an increase so
nominal that it does not violate section 24,
or a vast increase ' by increasing the size of
the Senate ' by 24.
Mr. Duthie.-Why not wipe out 24?
Sir ROBERT MENZIES.-If my friend
from Tasmania wants to have an argument
about that, all I can say is that he ought
first to take it on with Senator Wright. The
point I am making is obvious enough to all
honorable members, though I think it has
been overlooked by some of the incipient
critics. The point is that this House has a
choice. It can either for all practical purposes
keep its numbers static or find itself
increasing the size of the Senate, under the
existing law, so as to be able to increase
the size of this House. In my view, it would
then be compelled to increase the Senate
by 24-nothing else would work-and be
required to increase the size of this House
by 48 or 46, whatever the figure may be.
It cuts both ways. If the numbers are to be
as nearly as practicable twice the number
of the senators, the position would be that
the number in this House would need to be
as nearly as practicable 168. Nobody proposes
that; nobody would think of it at
this time.
I have said all this to show to the House
that we adhere to the principle that is
involved in that part of the report that says
that the nexus ought to be broken. If it is
not broken, there is no flexible future for
this House. I have been reminded of my
long experience in these fields. It is indeed
long. I have been through a few referendum
campaigns and I have come to respect the
genius of the people for voting No. If we
go to the people with a proposal to amend
the Constitution to break the nexus between
the two Houses, the first question that will
be asked by those opposed to it-there will
be quite a lot of people opposed to it, particularly
in some States-will be: "' You want
this so that you can increase the size of the
Parliament. By how much do you want to
increase the size of the House of Representatives?
That raises problems that do
seriously require a great deal of thought.
We would need to consider how these matters
are to be presented and the extent to
which we can go into details. We must be
as forthcoming on those matters as we can.
If we are not, we will be told that we are
hiding something and the result will be
disastrous from the point of view of ever
increasing the size of this House. I am not
at this stage proposing positively to give a
programme for the Government on these
matters. We must consider the various
aspects. They are associated in the public
mind with other matters concerning electoral
laws and the spread of boundaries, which, as everybody knows, are matters of acute
difference of opinion. As I have said, we
will by suitable legislation give the House
the opportunity for a debate and, therefore,
decision on these matters.
When I rose this morning all I hoped to
do was to raise one of two of the matters
that I do think are worth considering and
which have been exercising our m-inds quite
a lot. I wished to emphasise-it is very
desirable to emphasise this on constitutional
matters-that I really believe there is a very
substantial body of opinion in common in
this House. The qualifications that I have
put have not been so much qualifications
of principle as of application in the matters
I have dealt with.
BY AUTHOuRr: J. ARTHAM, COMMONWEALTH! GOVERNMENT PRINTER, CANBERRA.