Canberra, 28 February 1969
House of Assembly: second chamber
In our telex 768 of 29th January, 1969 your views were sought on the desirability, in the event that a Select Committee is established as a result of a motion by Arek,1 of getting the Committee to look at the question of a House of Review.2
2. The purpose of this memorandum is to canvass the possibility of a second Chamber of the legislature to act in conjunction with the House of Assembly and thereby assist you in your consideration. This matter was discussed briefly with the Minister during the Administrator’s recent visit to Canberra when the Minister said that he saw some merit in a House of Review because of the volatile character of the House of Assembly and the importance of due accord and deliberation in legislation.3 A second Chamber based on a regional principle might also assist in promoting national unity.
3. Some notes on bi-cameral system possibilities for the Territory are attached as Appendix ‘A’ which sets out a general appreciation of the subject.
4. If a second Chamber is created to function purely as a House of Review, probably the most relevant exposition is the British White Paper entitled ‘House of Lords Reform’, a copy of which is enclosed with this memorandum. Under these proposals, the House of Lords will have power to impose a delay of six months on the passage of an ordinary public bill sent up from the Commons on which there is disagreement between the two Houses. The Lords will still retain, however, the power to upset private bills.
5. It may also be appropriate to compare a possible second Chamber in the Territory to the House of Lords rather than the Australian or the American Senate as the latter are based on representation of sovereign States.
6. The question then arises as to the composition of a second Chamber and whether its members should be elected directly or indirectly.
7. The thought expressed by the Minister that the regional electorates provide a ready-made basis for a second Chamber has been explored to some extent in the attached papers. Regional representation has some attractions in that it may to some extent counter-balance any feeling of distrust at all legislative and governmental activity taking place in Port Moresby. Education qualifications for regional candidates could be eliminated to ensure that each region had the widest possible choice. Fifteen regional electorates, by themselves would result in a second Chamber which appears to be too small to be effective either in appearance or voice. Regional representation could be increased to a total of perhaps twenty to twenty five on the nexus principle described in Appendix ‘A’ to achieve a House of Review of thirty elected members.
8. An alternative to a ‘Regional House’ elected directly would be a second Chamber comprising indirectly elected members. For example, members could be indirectly elected by Local Government Councils; or the Local Government Conference could function also as an electoral college; indeed that Conference itself might have something to offer as a second Chamber.
9. Representation by indirect election to a second Chamber has appeal in that it would be more likely to lead to a predominantly conservative voice in the legislature not swamped by the emotional oratory of young people.
10. There would in any case be some advantages in a second Chamber including a few official members but probably not Ministerial Members or Assistant Ministerial Members who should remain in the principle House.
11. In considering this issue it is suggested that official members of the House of Assembly could canvass the question of a Second Chamber if a proposal is made for a further constitutional committee without any firm decision being reached as to whether such a cause should be proposed positively. If the House wishes to discuss constitutional issues then it would seem appropriate for it to consider the advantages and disadvantages of a second Chamber in depth including possibly visits to some Second Chambers in States, even if it were to come up with the conclusion that a unicameral system remained appropriate.
Attachment
SOME NOTES ON BI-CAMERAL LEGISLATURES AND THE POSSIBLE ADAPTATION OF A SYSTEM FOR PAPUA AND NEW GUINEA
[matter omitted]4
7. A second Chamber for Papua and New Guinea
7.1 Composition
7.1.1 In Papua and New Guinea there are 15 regional electorates and 69 open electorates. A second Chamber could comprise the 15 regional Members but this number may be too small in proportion to a lower House of 69 even when a few official members (or perhaps nominated members) are included in the upper House.
7.1.2 Using the ratio of 2: I (the Australian nexus),5 the upper House would comprise about 30 elected members. This would require an increase of 15 in the total number of elected members in both Houses and could be achieved by either doubling the existing number of regional representatives or providing for 15 (of the 30) members of the upper House to be indirectly elected. It is not mandatory of course to follow the nexus principle and an upper House of about 25 members compared to a lower House of about 75 (both including official members) could be adequate.
7.1.3 Any method of selection of members of a Second Chamber seems acceptable provided it is a reasonable democratic method.
7.2 Direct Election To A Second Chamber
7.2.1 A second chamber comprising some twenty elected members who are directly elected (together with a few official members) could include existing regional members as mentioned above. The present regional electorates could be redrawn to provide for twenty instead of fifteen, or grouped so as to provide for ten electorates each represented by two members, or some other rearrangement to produce the desired result.
7.2.2 The existence of regional electorates may offer a readily available bi-cameral system.
7.2.3 Direct election on this or a similar basis would provide equal representation for all regions in the upper House, thereby promoting a sense of security and national unity. Regional interests would be evenly represented and underdeveloped areas would have a greater voice in Territory affairs.
7.2.4 Such representation could also precipitate however a move towards a federal system and, in their role of direct representatives of the people, members could be dissatisfied with any powers and functions less than that of their fellow representatives in the lower House.
7.3 INDIRECT ELECTION TO A SECOND CHAMBER
7.3.1 Some members of the former Legislative Council of the Territory were elected by indirect election. Six of the members of that Council who were elected by the indigenous population were indirectly elected in that each native local government council in the electorate appointed one or more representatives to vote in the elections. Where such councils did not exist, electoral groups were formed in the areas concerned and each group nominated voting representatives.
7.3.2 This system could be introduced on a wide scale to produce an upper House of the required number and Regional interests would also be represented.
7.3.3 Indirect election to the upper House is by no means uncommon. The practice is observed for example in Eire, Holland, Iceland, West Germany, Norway, Sweden and Switzerland. The method of indirect elections varies as between these countries but usually local governments (States, provinces, etc.) each have a number of votes which are cast in favour of one or more candidates. The number of votes available to each local authority may be a fixed minimum to which is added additional votes proportionate to the population of the area controlled.
7.3.4 Indirect election by members of the lower House is also a possibility which merits some consideration.
7.4 Combination Of Direct And Indirect Election To A Second Chamber
7.4.1 An upper House of twenty members could comprise ten regional members directly elected and ten members indirectly elected, together with a few official members or perhaps nominated members.
7.4.2 This would probably necessitate a rearrangement of regional electorates and definition of areas in which indirect elections would be held unless it is practicable for the regions and areas to be the same.
7.5 Powers And Functions
7.5.1 It is clear that almost without exception where bi-cameral legislatures exist only the lower House may initiate money bills. There seems to be no justification for changing this ‘rule’ in the context of the Territory.
7.5.2 The power to introduce public bills other than money bills in the upper House is quite usual but in practice the power is apparently rarely invoked. A prerequisite for this power would be representation in the upper House by the government.
7.5.3 While it is envisaged at present that a few official members would occupy seats in a second Chamber in the Territory in the event that a bi-cameral legislature is established it would be inconsistent with Government policy for Ministerial Members to be removed from the area where traditionally, and in practice, the more responsible activities of government take place—that is to say in the lower House. Furthermore, the role of official members in a second Chamber would be largely that of presenting the Government’s view during debates. They would also be responsible for introducing public bills sent up from the lower House.
7.5.4 Little need is seen therefore for a second Chamber in the Territory to have the power to initiate public bills.
7.5.5 Private members bills are usually rare and there seems little reason to deny members of a second Chamber the right to initiate such bills. There would have to be safeguards to ensure that only members who are elected (either directly or indirectly) would have such a right as these would be the only members who could claim to be the peoples’ representatives.
7.5.6 It has been pre-supposed that all bills would have to pass through both Houses and receive assent to become law.
7.5.7 Provision would have to be made in respect of all bills in cases of disagreement between the Houses. A variety of arrangements exist in the various parliaments which might be useful as a guide to a body set up to examine the pros and cons of a second Chamber in the Territory. It is not proposed to discuss them in these notes. It seems sufficient to comment at this stage that a Territory second Chamber might reasonably have delaying powers only on public bills sent up from the lower House (e.g. one month on money bills and six months on other bills) and perhaps the veto powers on private members bills. The lower House would similarly have veto powers on private bills sent down.
7.6 Functions
7.6.1 Besides functioning as a House of Review on legislation sent up from the lower House, a second Chamber in the Territory might perform functions such as:—
• providing a forum for full and free debate on matters of public interest;
• maintaining an oversight of the A.E.C.’s regulation-making power;
• considering subordinate legislation;
• keeping itself and the public informed on the administration of laws.
7.7 Term Of Office
7.7.1 The term of office of members .of a second Chamber is usually the same as, or a multiple of, the term of members of a lower House. The life of the House of Assembly being four years, the term of office of members of a Territory second Chamber would—on that basis—be four or eight years.
7.7.2 It may be thought that eight years is too long a period particularly in the light of increasing political development in the Territory now and in the next decade or two.
7.7.3 The question of whether the rotation retirement principle should be adopted would have to be examined and may affect consideration of the term of office.
7.8 Qualifications Of Members Of A Second Chamber
7.8.1 Existing education qualifications for regional electorate representation could be maintained for at least the first election. Electors are familiar with present practice and its continuance may add prestige to an upper House.
7.9 Precedence And Style Of The Presiding Officer Of The Upper House
7.9.1 The President of the Australian Senate comes immediately after the Prime Minister.
7.9.2 The style President1 may be appropriate for the Presiding Officer of a second Chamber in PNG. Although this style was used in the Legislative Council in PNG, this seems not to be valid and sufficient reason for not using it again.
7.9.3 The style may smack of autonomy but nevertheless helps to establish the relationship between two Chambers where in the House of Assembly the Presiding Officer is the Speaker.
7.9.4 On the other hand the style ‘Presiding Officer’ may be appropriate.
7.10 Name Of Second Chamber
7.10.1 The name of the second Chamber could indicate its purpose—this alone could afford an explanation of sorts to many electors of the reason for its creation.
7.10.2 The term ‘Legislative Council’ (compare Legislative Council in States) seems unattractive for use in PNG presenting as it may an image of a subordinate House—the House of Assembly being an advance on the previous Legislative Council.
7.10.3 Possibilities are—
• House of Review (if second Chamber’s powers are so restricted)
• House of Regions (or Districts)
• The Upper House (or Chamber)
• Chamber of Regional Representatives.
7.11 Other Considerations
7.11.1 The establishment of a second Chamber in the Territory could result in—
• development towards a proven system of government and avoidance of a uni-cameral system, the end-results of which have often been arrogance, despotism and tyranny.
• an avenue being presented by which delegation of powers from Port Moresby to the Districts or Regions might be pursued or achieved in that District of7 Regional autonomy in specified functions could answer complaints of centralisation of control while tending to concentrate activities of central legislature on broader issues affecting the Territory as a whole.
• substantial expenditure both capital and ordinary.
• slowing down of the passage of bills and provide for a cooling-off period.
• wider appreciation of national issues while maintaining a forum for parochial views to be expressed.
[NAA: A452, 1969/1135]
1 Arek was reported as saying in late January that the ‘establishment of a constitutional committee was very urgent’ (telex II 02, Hay to Warwick Smith, 14 February 1969, NAA: A452, 1969/1135). (Arek had recently returned from work experience with the Australian Mission in New York and from a tour of African states (for report, see memorandum, UNNY (Rogers) to DEA, 26 February 1969, NAA: A1838, 936/3/19 part 2).) Commenting on the report, Warwick Smith told Hay and Barnes that ‘It was possible that Arek had some helpful ideas in mind rather than accelerated advance of political development’ (notes on discussion between Barnes, Hay and Warwick Smith, 28 January 1969, NAA: A452, 1969/222).
2 Warwick Smith had commented: ‘If in the event a committee is established in the near future it will be necessary to ensure that there is grist for its mill quite apart from constitutional development on the executive side or as you mentioned yesterday experiments in drafting constitutions. To this end we would like to have your view on the desirability of throwing into the ring possible establishment of a House of Review limited in number [to] possibly 20 or 25 perhaps of mixed composition but including a substantial proportion of members elected indirectly probably by Local Govt Councils and, say, 4 or 5 official members but no … Ministerial or Assistant Ministerial Members’ (NAA: A452, 1969/1135).
3 See Document 254.
4 Matter omitted includes discussion of upper houses in Britain and Australia, followed by a general examination of the legislative powers and composition of second chambers.
5 The paper had earlier explained the ‘nexus’ as requiring that ‘the number of members of the House of Representatives must always be “as nearly as practicable” twice the number of Senators’.
6 Presumably, this word should have been given quotation marks.
7 This should perhaps read ‘or’.