Whitlam, Gough --- "Reflections An Address by The Honourable Gough Whitlam AC, QC to the Murdoch Student Law Society" [1998] MurdochUeJlLaw 5; (1998) 5(1) Murdoch University Electronic Journal of Law

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"Reflections" An Address by The Honourable Gough Whitlam AC, QC to the Murdoch Student Law Society *

Author:	The Honourable Gough Whitlam AC, QC
Issue:	Volume 5, Number 1 (March 1998)

Contents

• Welcome by Professor Steven Schwartz - Murdoch University Vice Chancellor
• Introduction by Professor Michael Blakeney - Dean of the Law School
• An Address by Gough Whitlam AC, QC
• Notes

Welcome by Professor Steven Schwartz - Murdoch University Vice Chancellor

1. It's my great honour to welcome Gough Whitlam to Murdoch University. As you know, Gough Whitlam has been called an Australian icon - former Prime Minister, long time leader of the Labor party, leader of numerous organisations, author, lawyer, visiting professor at universities both here and overseas, and the main protagonist in some of the most momentous historical events in Australian political history.


2. Gough Whitlam is known as a person who has strong beliefs, holds them passionately, and expresses them with great clarity. Two weeks ago he celebrated his 81st birthday and I think it's fair to say he is still able and still showing that he can maintain the rage. Murdoch students and staff hold many of the same beliefs that Gough Whitlam holds quite dear. We take pride in intellectual achievement, we are passionate advocates of political freedom, economic freedom and intellectual freedom, we believe in fair play and understanding and we believe in pluralism. Ever since Murdoch was started 22 years ago, we've made it our goal to provide a higher education to as diverse a group of people as possible, and I believe Murdoch will continue to maintain that as its goal for the future.


3. These are times when there are very disturbing currents at large in Australian society when opportunists are using the politics of divisiveness to try to pit one Australian against another. It's important at times like that for universities to take a special responsibility to become beacons of tolerance, beacons of pluralism, places where we fight against the forces of ignorance and intolerance. In other words, it's important for universities to emulate Gough Whitlam.


4. Mr. Whitlam was last here 3 years ago and he gave a talk to the Murdoch Students Law Society and those who were here remember his prescient remarks. He is now here to speak to us again and I know you are all looking forward as much as I am to here what he has to say, so I'll just end by welcoming him again to Murdoch and I'll now turn these proceedings to Professor Michael Blakeney, who is the Dean of the School of Law and who organised today's event.

Introduction by Professor Michael Blakeney - Dean of the Law School.


5. It's my very great honour to welcome Gough Whitlam to the Murdoch Law School. One of the reasons that Gough is here is that I was interviewed by the law students' newspaper and asked who I would most like to spend the night with. I mentioned Gough!


6. Gough has had a profound influence on my life and on the lives of my generation. To understand that proposition, you have to appreciate the flavour of the political and intellectual climate of Australia in the mid to late sixties when I was a law student. To appreciate some of that I commend to you the autobiographical works and diaries of that great Western Australia, Paul Hasluck. He communicates something of the stench for what my generation considered to be the intellectual mediocrity and stultification of the post-Menzies years. Australian involvement in the Vietnam War was a tangible manifestation of the moral bankruptcy of our leadership at that time. In 1972 the younger generation, which at the time included me, looked to Gough Whitlam as a shining beacon in the darkness.


7. For the few short years that Gough was allowed to govern I can say that he did not disappoint us. From our narrow perspective as legal scholars, I can say that no Australian administration, as truncated as his was, has ever been as innovative and exciting as the Whitlam administration, and I mention to law students the Family Law Act, the various administrative review provisions, the Trade Practices Act, the Racial Discrimination legislation, the Environmental Protection Act but to name a few. Law students will appreciate the influence of the Whitlam years even on today's law curriculum. More importantly perhaps the Whitlam leadership provided the moral leadership that had been so lacking in Australian life. Our ratification of the various human rights and anti-discrimination conventions, our withdrawal from the Vietnam was, and the repeal of the conscription legislation but to mention a few. Finally, I should refer to the pioneering Aboriginal Land Rights legislation which was completed after Gough's departure. I should mention in that context that Gough was, a short while ago, welcomed to this Noongar land by Len Collard, a Noongar person, and we appreciate Len's welcome.


8. What relevance you may ask do the reflections of Gough Whitlam have for you in 1997; after all he was Prime Minister before most of you were born. However, as a new mediocrity and philistinism settles upon the land, your generation, as mine before yours, will be looking for the sort of leadership which Gough Whitlam provided. What better person than to invite to Murdoch to share with you his reflections. In the name of Murdoch Law School, let me welcome you Gough to share with us your insights into the critical issues of the day.

An Address by Gough Whitlam AC, QC


9. Vice Chancellor, professors, lecturers - I particularly stress lecturers because I find Western Australian lecturers, having had a good education here and getting a free education at Oxford later, do provide very good political leaders, and I welcome them here - subjects and citizens, beacons all.


10. I was here three years ago, as the Vice Chancellor mentioned, and my speech, which was all written out at that time - very coherent, no sidetracking or diversions - was called State Rights -v- World Values. It was delivered in August 1994 and was the inaugural law students lecture here, and was then printed with your permission in July 1995 by the University of Western Australia Law Review. I dealt in that lecture with a considerable number of matters which were already before or were coming before the High Court. I thought today I might trace what ought to be done on some of those issues and also what other steps can be taken to ameliorate the situation, which not even the High Court in its most modern form has been able to solve.


11. I come straight to what I called in the inaugural Murdoch lecture the "malapportionment", which is at the core of the corruption of Western Australian politicians, both Labor and Coalition, in social and economic issues. I'll quote some of the things I said then and I'll give you the subsequent history, showing how long it takes to solve some problems and why we should press on until they are solved:

During the parliamentary winter recess in 1967 - the first year I was leader of the Party - Lance Barnard, Lionel Murphy, Sam Cohen and I met with the surviving Labor Premier, Eric Reece of Tasmania - we were down to one at that time - and the leaders of the mainland State Parliamentary Labor Parties. We all agreed to work for votes at 18 and "one-vote-one-value" in all our houses of parliament. Votes at 18 were enacted in all Australian parliaments during the period of my government. One-vote-one-value in the House of Representatives was achieved at the only joint sitting of Federal Parliament in 1974. No Labor State government has had a majority in the Legislative Councils of the four southern States or, except for a few years in the 1960s, in the Legislative Council of New South Wales. Dunstan, Wran and Cain succeeded in securing one-vote-one-value in both houses of their parliaments. Except in five seats, Goss secured it in the Legislative Assembly of Queensland. Tasmania has always had one-vote-one-value in its Assembly but its Labor premiers have failed to secure it for the Legislative Council. Labor premiers in Western Australia have failed to secure it in either the Legislative Assembly or the Legislative Council. Only now is there a sustained and coordinated campaign by members of the Western Australian Parliamentary Labor Party to achieve basic reform of the State's electoral system. [1]

12. Then I recalled the policy of the Party when Burke and Hawke were elected as heads of government in 1983: "To guarantee the right to vote and ensure the principle of 'one-vote-one-value' in all Australian and State and Territory elections."[2]


13. Then I quoted Article 25 of the International Covenant on Civil and Political Rights of over 30 years ago:

Every citizen shall have the right and the opportunity without any of the distinctions mentioned in article 2 and without unreasonable restrictions...(b) To vote and to be elected at genuine periodic elections which will be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.

14. I went on to say then, and I shall now illustrate: "Western Australians are singularly skewed and slanted in their views on voting rights." [3]


15. It's not easy, I must confess, for people in the other States to know what's going on in this State. One can occasionally see it in only one daily paper that we can get and that's The Australian. But to get The West Australian you have to place an order and it costs $4.50 each copy, and I believe I can often use my funds better than that! But let me give you the facts which come from a very effective source in this State - The Western Australian Electoral Commission. I quote from figures produced as at the 30th June this year. There is no excuse for people in Western Australia to be ignorant about their electoral system. I've followed these things for many years and only in Western Australia do you get the figures in full and promptly. So let me quote them. I'm sorry for the statistics, but I think this is one case where figures do speak for themselves.


16. For the elections to the Legislative Assembly, the State is divided into a metropolitan area and a country area. As of the 30th June 1997, metropolitan enrolment was 828,700 and the metropolitan quotient was 24,300. The country enrolment was 293,000 and the country quotient was 12,700, just half as much. In the metropolitan area, electors in the most populous district, Wanneroo, numbered 29,000 and in the least populous district, Perth, 22,000. Respectively that is 20.69% above and 9.25% below the metropolitan quotient. In the country area electors in the most populous district, Warren Blackwood, numbered 14,700 and in the least populous district, Pilbara, 10,000. That's respectively 15.19% above and 18.85% below the country quotient. In brief, the metropolitan quotient is twice as large as the country quotient while enrolment in the most populous Assembly district is 3 times as large as the enrolment in the least populous district. For the elections for the Legislative Council, the State is divided into 6 regions. 4 of the regions elect 5 members each, and 2 of the regions elect 7 members each. As of the end of June, enrolment in the 5 member regions was 68,000 in the mining and pastoral region, 89,000 in the agricultural region, 237,000 in the south metropolitan region, and 247,000 in the east metropolitan region. In the 7 member regions, enrolment was 136,000 in the south west region and 341,000 in the north metropolitan region. In brief, the votes of country electors have three times the value of the votes of metropolitan electors in choosing members of the Legislative Council.


17. The Fitzgerald Inquiry in Queensland and the Kennedy Royal Commission in Western Australia (the WA Inc) have confirmed that there cannot be a responsible government unless there is a representative parliament. Western Australia has neither.
    
    
18. I now quote from my new book Abiding Interests:[4]

In December 1993, Carmen Lawrence, Jim McGinty, Geoff Gallop and John Halden initiated procedures in the High Court. In February, McGinty succeeded Lawrence as Leader of the State Opposition, which she resigned to enter Federal politics. He and his colleagues had to overcome McKinlay's case, a challenge to the unequal franchise in Federal Divisions. That case was heard in the last week before the coup of November 1975, and with a spectacular sprint the Justices delivered their judgments on 1 December in advance of the Federal elections on 13 December. McGinty's case was heard in September 1995 by only 6 Justices, since Chief Justice Mason had retired and Justice Deane had been designated as Governor General. There is reasonable speculation in legal circles that if they had sat on the case, the challenge would have succeeded. On 20 February 1996 the new Chief Justice Brennan, Justices Dawson and McHugh, and the new Justice Gummow, rejected the challenge. To many it seemed that the Brennan Court would not be as innovative as the Mason Court. It is more fruitful to speculate that the Justices might have felt that the Western Australian Parliament not only could, and should, but would correct the situation.

19. I regret to say that the Western Australian Parliament has not corrected the situation. Clearly Western Australians must now initiate another strategy to secure democracy in the State Parliament. They should approach the Human Rights Committee which monitors and implements the International Covenant on Civil and Political Rights.


20. In April 1994, 8 weeks after McGinty took over from Lawrence, there was a signal instance of the efficacy of a complaint to the Human Rights Committee. On Boxing Day 1991, the day after Australia's accession to the first Optional Protocol to the ICCPR entered into force for Australia, Mr. Nicholas Toonen, a homosexual from Tasmania, complained that the Tasmanian Criminal Code breached Article 17 of the Covenant: 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.


21. Let me quote the sections concerned in the Tasmanian Criminal Code. Section 122:

Any person who (a) has sexual intercourse with any person against the order of nature, (b) has carnal knowledge of an animal, or (c) consents to a male person having carnal knowledge of him or her against the order of nature, is guilty of a crime.

22. In law sexual intercourse involves the mouth as well as other orifices. Section 123:

Any male person who whether in public or private commits any indecent assault upon or other act of gross indecency with another male person or procures another male person to committing any act of gross indecency with himself or any other male person is guilty of a crime.

23. There again, oral gratification is covered by that Section. Without elaborating too much, the fact is that under the criminal law of Tasmania it would be possible for people who have had a Christian marriage and are practising oral gratification with the lights out or blinds down, commit a crime. There is I am told, some anecdotal evidence that it sometimes occurs ... I know since Vatican II Latin is not very much used, but if there is any Latin word which is generally understood it is the Latin word covering that practice.


24. I should explain to you the subsequent history of Toonen's case. He complained to the Human Rights Committee on Boxing Day 1991. In April 1994 the Secretary General of the United Nations transmitted the Committee's unanimous views to Australia's permanent representative at the United Nations office at Geneva, that the facts given by Toonen (and he had given all the facts of what unquestionably was an act against the order of nature) revealed a violation of his rights. In the Committee's opinion, an effective remedy would be the repeal of the offending section of the Criminal Code.


25. On 12 October 1994 the Federal Attorney General, Michael Lavarch, introduced the Human Rights Sexual Conduct Bill. It received Royal Assent on 19 December 1994. In May 1996, the Tasmanian Liberal government dropped its opposition to gay law reform. On a conscience vote the House of Assembly passed the Bill to repeal the sections but in June 1996 the Legislative Council defeated the Bill by 10 votes to 8. In February 1997, the High Court agreed to hear his case. On 25 March 1997 the Greens in State Parliament introduced a Bill to repeal the sections. It was passed by the House of Assembly on the voices without a division. On 1 May 1997 the Legislative Council passed the Bill without amendment by 13 votes to 4. I've gone into some detail there to illustrate that it took about 6 years to get a result from an Appeal to the Human Rights Committee, but it worked. It came about by a lengthy legislative process and a prospective appeal to the High Court. Any person in an under-represented Assembly or Council district in this State, in my opinion, should appeal to the Human Rights Committee. I read the process required by this Optional Protocol which entered into force for Australians on Christmas Day 1991.

A State Party to the covenant, [the ICCPR], that becomes a Party to the present Protocol, recognises the competence of the Committee to receive and consider communication from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. Individuals who claim that any of their rights enumerated in the Covenant [such as equal suffrage] have been violated, and who have exhausted all available domestic remedies may submit a written Communication to the committee for consideration. The Committee shall bring any communications submitted to it under the present Protocol to the attention of the State Party [the Australian government] alleged to be violating any provision of the Covenant. Within six months the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

26. In international law the word State means a nation, a member in effect of the United Nations. The Australian States, like the Canadian Provinces are not States in the international sense. In Toonen's case the Australian representatives to the UN Headquarters in Geneva were given the findings by the Human Rights Committee. They were transmitted to the Australian Government which then conferred with the Tasmanian Government. The Australian Federal Government's replies and the Tasmanian Government's replies were furnished to the Committee. So in this case, if anybody in Western Australia from an under-represented district in the Council or the Assembly were to communicate with the Human Rights Committee, then the Committee would consider communications received under the present protocol in the light of all written information made available to it by the individual and by the State concerned (i.e. Australia).

The Committee shall not consider any communications from an individual unless it has ascertained that ... the individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged. The Committee shall forward its views to the State Party concerned and to the individual.

Beyond any doubt, the Human Rights Committee would find that the Western Australian malapportionment violates every possible definition of equal franchise. I stress that any citizen could initiate such an appeal. It might take half a dozen years to get it through. I don't see how else it can be done. I don't think the position is any longer tolerable. To people who take the attitude that in these matters we shouldn't appeal to outside jurisdiction, I point out that improvements in human rights in Australia have been achieved only when the international provisions have been ratified by Australia, and to the extent that they've been ratified by Australia. When the Australian Parliament enacts an international instrument - convention, agreement, treaty, protocol, covenant, whatever its name - then Australian courts and authorities investigate the case and hand down a judgment and see that it's implemented.

27. In fact the Australian Parliament - and I won't go into the history - has not enacted the International Covenant on Civil and Political Rights. It has enacted the Racial Discrimination Convention with one exception; it has refused to penalise incitement to racial hatred. It has enacted the International Covenant against all Forms of Discrimination Against Women. It has enacted the Torture Convention. If the Hawke, Keating or Howard government had ratified the ICCPR, there's no doubt that the High Court would have ruled that the Western Australian parliamentary system was in breach of the law. Because we haven't enacted it we do not have recourse through our own courts. The United States Supreme Court in the early 1960s ruled that one-vote-one-value has to apply for all elected offices in the United States. The High Court doesn't always follow the United States Supreme Court's actions or decisions but if we were to enact it, then there is no doubt the High Court would say that Western Australia was in breach of it and it had to bring in one-vote-one-value. Tasmania still has a malapportioned Legislative Council but the Tasmanian Parliament is tackling the issue. Within 5 years one-vote-one-value will apply in their Council. It's always applied in their Assembly.
    
    
28. I now come to Land Rights and again I quote from my prior Murdoch lecture: [5]

Western Australians are singularly strident in their views on land rights. The blame for the condition and status of Aboriginal Australians in Western Australia cannot be sheeted home to British parliamentarians and officials. It must be sheeted home to Western Australian parliamentarians and officials. The British Parliament denied self-government to Western Australia for a full generation after it had granted self-government to the other Australian colonies. British officials did not trust elected and appointed persons to safeguard the condition and status of Aborigines in Western Australia. The British Act bestowing self-government on Victoria was proclaimed on 23 November 1855. In 1856 Legislative Assemblies were elected in Victoria, New South Wales, South Australia and Tasmania and in 1859 in Queensland. A Legislative Assembly was not established in Western Australia until 1890 when Sir Malcolm Fraser [6] was administering the colony.

29. Western Australia doesn't now have Federal parliamentarians who have maintained as much interest in Aboriginal affairs as their two great predecessors from The University of Western Australia, Paul Hasluck and Kim Beazley Sr. Hasluck's "Black Australians" is based on his MA thesis on 'official policy and public opinion towards the Aborigines of Western Australia from 1829 [when the Swan River was settled] to 1897 [when control of Aborigines was transferred by the Imperial Government for the Western Australian Government]'.


30. I take some points from this pioneering work. The Constitution Act 1889 (Western Australia) provided that one per cent of the gross revenue of the colony should be appropriated for the welfare of the Aboriginal natives. In 1897 the Western Australian parliament gained control of expenditure on Aborigines. On the eve of Federation, Parliament's expenditure had been cut to one sixth of one per cent.


31. In campaigning for the Native Title Bill 1993 I frequently quoted the elder Beazley's elegant and eloquent speeches in the early 1960s. In October 1961 he stated: "In any land policy, for God's sake, let us get over the great Australian historical assumption that you must make a decision about the lands as though there was no one living on them".


32. In October 1961 Beazley expressed the very essence of the High Court's rejection of terra nullius pronounced in Mabo No 2 in June 1992. In May 1964 Beazley declared the importance of action by the Federal Parliament: Irrespective of who has control over aborigines, only one government is answerable before the forum of international opinion - the Government of the Commonwealth of Australia. In the forum of international opinion - the United Nations - no one will raise Western Australia's policy or Queensland's policy, but the delegates of the government of the Commonwealth of Australia will have to answer for Australia's attitude.[7]


33. In moving a resolution in the House of Representatives in June 1950 Hasluck expressed the same thought. I quoted it in my keynote address at a conference in his honour at the University of Western Australia in September 1995. Western Australians cannot blame British governments for their legacy on land rights. Many decades ago their own politicians exposed the responsibility of Australian governments.


34. Now I would go further, because not only can Western Australia be proud of what some of their politicians have said on Land Rights and Aboriginal issues but they can also be proud of the two Western Australians who have been justices of the High Court. The lead judgment in the Wik case was handed down by Justice John Toohey. As a justice of the High Court, Sir Ronald Wilson, a former Solicitor General of Western Australia, was reluctant to hold that the Federal Parliament had the jurisdiction and therefore the obligation to enact international standards. Since 1990, however, as President of the Human Rights and Equal Opportunity Commission (HREOC), he has been outstanding in promoting human rights, particularly with respect to the original Australians. In the inaugural Murdoch Address I quoted his support for the 1981 UN Declaration on the Elimination of All Forms of Intolerance and of the Discrimination Based on Religion or Belief. In December 1996 he presented "Bringing Them Home", the massive report of the HREOC National Inquiry into the 'Separation of Aboriginal and Torres Strait Islander Children from their Families'.


35. The Inquiry concluded that forcible removal was an act of genocide contrary to the Convention on the Prevention and Punishment of the Crime of Genocide, which was signed for Australia on 11 December 1948 and ratified by Australia on 8 July 1949. It was the first human rights convention adopted by the UN General Assembly. Among the acts defined as genocide is the forcible transfer of children from a national, ethnical, racial or religious group to another group. H.V.. Evatt was in the chair when the General Assembly adopted the Convention in Paris on 9 December 1948. It was adopted the day before the Universal Declaration on Human Rights was proclaimed. In Evatt's absence Chifley himself, the Prime Minister, promptly introduced a bill to ratify the Convention. The Leader of the Opposition R.G.. Menzies, promptly supporting the bill, said legislation would have to follow. When Evatt resumed the debate, he agreed that legislation would have to follow. No such legislation has yet been introduced.


36. The Separated Children Inquiry concluded that, even before international human rights law developed in the 1940s, the treatment of indigenous people breached Australian legal standards. Indigenous families were entitled to expect the protection of the English common law. In the States and Territories parents were powerless to know the whereabouts of their children and to protect them from exploitation and abuse. The policy continued until the end of the 1960s. If the Federal Parliament had promptly enacted the Genocide Convention, the policy would have been ended 20 years earlier.


37. In December 1991 the Commonwealth Criminal Law Committee, which Attorney General Lionel Bowen established in February 1987 and which former Chief Justice Gibbs chaired, recommended that legislation be enacted on the lines of the UK Genocide Act 1989. The Keating Government did not introduce such legislation and the Howard Government has not introduced it.


38. Internationally, Australia has always been obliged to comply with the Convention. Australian troops overseas are bound by it. In December 1996 the National Inquiry specifically recommended that the Commonwealth legislate to implement the Convention with full domestic effect. Australia ratified the Convention 48 years ago. It is time that the Australian Government and Parliament accepted their responsibilities and exercised their jurisdiction to enact the provisions of the Convention.


39. I have cited the views expressed on indigenous issues by two outstanding members of the House of Representatives from Western Australia and the two justices of the High Court from Western Australia. Therefore, if I speak with some asperity about some of the things that go on in this State, it is not because there have not been some good leaders and some good lawyers from the State but because there have not been enough of them. Murdoch Law School should play its part in producing more of them.


40. The rest of the world is losing patience with the deficiencies of Australia's legislative processes. In no other democracy are election dates so frequent and unpredictable. The Constitution of Australia envisaged the holding of elections every three years. Until 1949 elections were in fact held every three years. R.G.. Menzies held too many elections and too few referendums. His opportunistic use of the Prime Minister's right to dissolve the House of Representatives in 1955 and 1963 threw the elections for the two Houses out of kilter. There were separate elections for half the Senate in 1964, 1967 and 1970. This meant that no senators were elected concurrently with the House of Representatives in December 1972; that was the root cause of the subsequent difficulties. In 1975, 1983 and 1987 there were double dissolutions on spurious or faulty grounds. The Parliaments elected in 1990 and 1993 were the first to run the full three years since the Parliament elected in 1958.


41. Australians cannot attribute the failures of their electoral processes in the second half of this century to the UK and US political systems which were blended in drafting the Constitution of the Commonwealth of Australia. Our Constitution took effect at the beginning of the century. Australians have themselves to blame for not making the alterations to their Constitution which the British and Americans made in their political systems in this century.


42. In Washington in 1845 the election date for Federal officials was fixed as the Tuesday after the first Monday in November in even numbered years. By the end of the century the State legislators had adopted the same election date. Senators continued to be elected by the legislatures of the States until 1913, when the Seventeenth Amendment provided for them to be elected by the people of the States. Since then the same date has been used to fill the vacancies for senators, who have fixed six year terms, for presidents and governors, who have fixed four year terms, and for congressmen and State legislators, who have fixed two year terms. At Westminster in 1911 the Parliament Act forbade the House of Lords to reject or hold up money bills. In Washington the President, Senate and House of Representatives may all propose different annual Federal budgets. After much toing and froing a single budget is passed and all elected persons complete their terms. If Menzies after 1949 had sponsored referendums to incorporate the provisions of the Parliament Act of 1911 and the Seventeenth Amendment of 1913, Australia would have been spared many of the traumas of the ensuing years. The failure to hold referendums to incorporate the provisions of the UK Act and the US Amendment illustrates the defects in our Constitution. A decision to hold such referendums would indicate the way to overcome the defects.


43. In Australia, Federal and State elections have to be held on different days because of a subsection of the Commonwealth Electoral Act 1918 and not because of any section in the Commonwealth Constitution. For 80 years no Federal Government from either side of politics has seen fit to repeal the subsection. The justification for this illogical restriction seems to be the unresolved conflict between Federal and State parliamentarians and party officials on the collection of funds, promotion of policies and distribution of favours. The current national secretary of the ALP, who regards himself as a Western Australian, opposes repeal because he is not satisfied that, if Federal and State elections were held on the same day in New South Wales, the State machine would give as much attention and support to Federal candidates as to State candidates. I suspect the Liberal officials would make the same assessment about the chances of the Federal and State candidates in Western Australia if Federal and State elections were held on the same day. There are cynics and sceptics on both sides of politics. Repeal of the subsection in the 1918 act would halve the frequency of elections in Australia.


44. There are no constitutional or statutory barriers against State elections being held in all States on the same day. It should be much easier to arrange simultaneous State elections since the Parliaments in all mainland States except Queensland now have four year terms. Not even contiguous States have made such arrangements. Western Australia and South Australia have never had State elections on the same day. In consequence ministers and officials have fewer opportunities to coordinate laws and practices which concern the residents of both States, such as Aborigines, surface transport, education, heritage and environment. In Australia during this century electors have gone to the polls on any Saturday between 1 February and 14 December. In the US system for a century and a half electors have gone to the polls on the Tuesday after the second Monday in November. The Legislative Council of Western Australia has one feature which I can wholeheartedly endorse and applaud. Of Australia's six upper houses it is the only one with a fixed term, where all the members or aspiring members have to face the electors at the same time. In all the other upper houses the membership is staggered; the members come and go in different batches. In the Legislative Council of Western Australia, however, all the councillors are elected at the one time, all their terms expire at the same time, they share a fixed four year term. In those respects the Council should be the model for all the Houses of Parliament in Australia. We must now recognise that the multiplicity of dyschronous elections in Australia is not a manifestation but a manipulation of democracy.


45. In the second Murdoch address I have examined the outcome of the litigation in the High Court over native title and equal franchise and the legislation in the Federal Parliament on sexual conduct in private which were pending at the time of the inaugural Murdoch address three years ago. I conclude with an examination of the outcome of the litigation in the High Court on industrial relations which was pending at that time.


46. The Kennett Government had abolished the Industrial Relations Commission and Accident Compensation Tribunal in Victoria, the Brown Government had abolished the Industrial Commission in South Australia and the Court Government had abolished the Workers' Compensation Board in Western Australia. The Minister for Industrial Relations in the Keating Government, Senator Peter Cook of Western Australia, initiated amendments to the Industrial Relations Act which would ensure compliance with four International Labour Organisation conventions throughout Australia:

Convention No 100, Equal Remuneration 1951
Convention No 111, Discrimination (Employment and Occupation) 1958
Convention No 131, Minimum Wage Fixing 1970
Convention No 158 Termination of Employment 1982

The Victorian, South Australian and Western Australian Governments challenged the legislation in the High Court. The Howard Government was elected while the High Court was preparing its judgment. On 23 May 1996, without the benefit of the judgment, the new Minister for Industrial Relations, Peter Reith, introduced the Workplace Relations and Other Legislation Amendment Bill to change the objects of the Industrial Relations Act. On 4 September 1996 the Court, by five justices to one, endorsed Cook's legislation. Through Cheryl Kernot the Democrats exacted a vast number of improvements in return for their support of Reith's bill. When the bill was passed on 21 November 1996, a final paragraph had been added to its objects: "...assisting in giving effect to Australia's international obligations in relation to labour standards."


47. The Constitution of the ILO and the Constitution of Australia are now shown to provide the Australian Parliament with the jurisdiction and the obligation to enact all ILO conventions and recommendations.


48. One of the ablest of NSW Labor Premiers, Neville Wran, and one of the ablest of NSW Liberal Premiers, Nick Greiner, have both advocated a single industrial system for the whole of Australia. The majority of Liberal and Labor politicians, however, continue to support the continuation of overlapping Federal and State systems for fear that a single system might come to favour the interests of the workers or the employees alone. Since the Treaty of Versailles in 1919 the ILO has had the unique tripartite structure based on national governments, industrial associations of employers and industrial associations of workers. The annual International Labour Conferences take much more time and care in discussing and drafting ILO conventions and recommendations than is taken in the Federal Parliament or any State Parliament in Australia in discussing and drafting acts, regulations and ordinances. The ILO Committees have a longer history and a more consistently distinguished membership than the monitoring committee of any other UN specialised agency.


49. In this address I have already urged that citizens of Western Australia should approach the Human Rights Committee as the most effective means to overcome the unequal franchise which persists in both Houses of the Parliament of Western Australia. I am aware of the timidity and reluctance which the politicians and private citizens still exhibit in taking this course. No such compunction is shown by employers and workers in approaching the corresponding ILO committees. The Confederation of Australian Industry and the Australian Chamber of Commerce and Industry have complained to the ILO about Australian industrial law and practice in the last decade. So have the customs officers and airline pilots.


50. The Federal Department of Industrial Relations has just received a letter date 10 June 1997 from the International Labour Office advising of representations made by the ACTU concerning the Western Australian Labour Relations Legislation Amendment Bill and setting out some informal comments. I expect that associations of employers and workers will more and more appeal to the ILO committees than to Australia's overlapping industrial systems to resolve issues of fundamental industrial law and practice.


51. In industrial relations, as in other areas, Australia's future depends on the implementation of the best international practice. At Murdoch University I stressed three years ago and repeat here today that the National Government of Australia has the right and the duty to enact and implement, fully and promptly, the standards set by the UN and the UN specialised agencies to which Australia belongs.

Notes

* Editors Note: This article is a revised version of Gough Whitlam's address to the Murdoch University Student Law Society delivered on 25 July 1997 at Murdoch University. The address traces and updates the key issues and themes of his original address to the Murdoch Student Law Society on 3 August 1994 which was later published as G Whitlam (1995) "State Rights v World Values" [1995] UWALawRw 1; 25 UWALR 1.

[1] G Whitlam (1995) "State Rights v World Values" [1995] UWALawRw 1; 25 UWALR 1 at 7.

[2] Originally quoted from Australian Labor Party (1982) Platform, Constitution and Rules p21.

[3] see note 2 at 8.

[4] G Whitlam "Abiding Interests" University of Queensland Press 1997 at 201.

[5] see note 2 at 3-4.

[6] In 1890 Sir Malcolm Fraser was administrator of the Colony of Western Australia.

[7] Originally quoted from Hansard (HR) 14 May 1964, 1917.

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