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1933 New South Wales referendum

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1933 New South Wales referendum
13 May 1933
Do you approve of the Bill entitled —

"A Bill to reform the constitution and alter the Powers of the Legislative Council; to reduce and limit the number of Members of the Legislative Council; to reconstitute the Legislative Council in accordance with the reformed constitution; to amend the Constitution Act, 1902, and certain other Acts; and for purposes connected therewith" ?
Results
Choice
 Votes %
Yes 716,938 51.47%
No 676,034 48.53%
Valid votes 1,392,972 98.71%
Invalid or blank votes 18,144 1.29%
Total votes 1,411,116 100.00%
Registered voters/turnout 1,465,008 96.32%

A referendum concerning the reform of the New South Wales Legislative Council was put to New South Wales voters on 13 May 1933 and was passed by the voters with a margin of 2.94%. The text of the question was:

Do you approve of the Bill entitled "A Bill to reform the constitution and alter the Powers of the Legislative Council; to reduce and limit the number of Members of the Legislative Council; to reconstitute the Legislative Council in accordance with the reformed constitution; to amend the Constitution Act, 1902, and certain other Acts; and for purposes connected therewith."[1]

Background

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The abolition of the New South Wales Legislative Council had been on the Labor Party agenda since at least federation. However, attempts to abolish the Council did not occur until Labor Premier Jack Lang’s first term of office, however the attempt failed when 2 Labor members voted against the abolition bill and a further 6 were absent from the council.[2] Lang was defeated at the 1927 election and in 1929 the parliament passed an amendment to the Constitution Act which inserted section 7A, requiring a referendum before the Legislative Council could be abolished.[3] In 1930 Labor MLCs put forward two bills, one to repeal section 7A, the other to abolish the Council. Believing that a referendum was necessary before the bills could become law, the Legislative Council permitted the bills to pass without a division on 10 December. The validity of section 7A and the inability to repeal the section without a referendum were upheld by the Supreme Court on 23 December 1930,[4] a majority of the High Court on 16 March 1931,[5] and the Judicial Committee of the Privy Council on 31 May 1932.[6] The bills repealing Section 7A and abolishing the Legislative Council could not therefore be presented to the Governor for assent until they had been passed in a referendum.[7] Lang was dismissed in May 1932 and the United Australia Party led by Bertram Stevens, in coalition with the Country Party had a landslide victory at the 1932 election, winning 66 of the 90 seats, with 51.62% of the primary vote.[8]

The number of members of the council had expanded significantly, from 75 on 24 June 1925 to a peak of 125 in September 1932. The response of Stevens was to propose major reforms, replacing the appointed council with one indirectly elected to 12 year terms and reducing the number to 60.

Yes case

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A statement issued by the Stevens government stated that the most important provisions of the proposal were to:

  1. Reduce and limit the number of members to sixty.
  2. Provide for an elective Instead of a nominee Chamber, the members to be elected by both Houses as one electoral body in accordance with the principle of proportional representation, to hold office for a specified term instead of for life, and to retire under a system of rotation.
  3. Define the powers of the new Council, and place all bills on the same footing, with the exception of the usual "supply bills" for the ordinary services of government.
  4. Adopt the principle of the referendum in order that the electors themselves may decide questions upon which the two Houses, after full opportunity to discuss the issues Involved and to arrive at agreement by constitutional methods, may still be at variance.[9]

In response to Labor's assertion that the council could block its abolition Henry Manning, the Attorney General stated that the council could neither veto nor obstruct with success. There was no basis for the claim that an abolition bill could only originate in the council.[10]

No case

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The proposal was opposed by both Lang Labor and Federal Labor. Lang, in opening his no campaign, described the reform bill as a plot to install the fascist New Guard in charge of parliament,[11] and that there would be no referendum to abolish the council as the Governor or the council could obstruct the proposal by refusing to cooperate with the deadlock provisions.[11][12] James Scullin, leader of the federal party, stated that the proposal was a violation of democratic principle and that it was the right of the people to elect their representatives. Scullin reiterated Labor's policy of abolishing all legislative councils.[13]

On a practical level the United Australia Party had a majority in both houses such that they would have a majority in the reformed council and the influence of that majority would continue for many years, with Scullin describing it as a scheme to entrench one party in power.[13] The Australian Worker described it as loaded against Labor and "a scheme to keep Labor legislation off the statute book for the next 20 years or more.[14]

Results

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Result [15]
Question Votes %
Legislative Council reform Yes   716,938 51.47
No 676,034 48.53
Total Formal 1,392,972 98.71
Informal 18,144 1.29
Turnout [16]     1,411,116   96.32  

Aftermath

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Court challenge

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The referendum was challenged on the basis that copies of the Bill were not given or made available to electors. The Full Court of the Supreme Court, Harvey Chief Judge in Equity, Justice Long Innes and Justice Davidson rejected the contention that submitting the bill to the electors meant handing a copy to each elector, holding that it merely meant that there should be a vote of electors. The court also rejected a contention that the 1929 bill for the reform of the council and the 1930 bill for the abolition of the council had to be submitted at the same time.[17]

1934 Legislative Council election

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The election was held at a joint sitting of parliament in November 1933 with the United Australia and Country coalition winning 35 of the 60 seats.[18][19]

Party   Seats  
    United Australia 24
  Country 11
Coalition total 35
  Labor (NSW) 17
  Federal Labor 5
  Independent 3

Subsequent referendums

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The Labor party's platform of abolishing the legislative council was put to a referendum in 1961, but not until after significant opposition, not only from the Liberal and Country parties but also within the Labor party itself. Despite the views of Henry Manning in 1933 when the 'Constitution Amendment (Legislative Council Abolition) Bill' came before the Legislative Council on 2 December 1959, the council resolved 33 votes to 25 to send it back to the Legislative Assembly on the grounds that such a bill should have originated in the council. This was passed with the support of seven Labor members crossing the floor.[20] On 6 April 1960 the bill was sent back to the council, which returned it to the assembly on the same grounds.

As a result of the deadlock, Heffron requested the Governor to order a joint session of parliament on 20 April, a session which lasted two hours and was boycotted by the opposition. On 12 May the Assembly resolved that the bill be submitted for a referendum.[20] However, later that day the leader of the opposition in the Legislative Council, Hector Clayton, started legal action seeking to prevent a referendum. As Manning had stated, the council could neither veto nor obstruct the referendum with success. The full court of the Supreme Court of New South Wales found that the government had complied fully with the intention of section 5B,[20][21] while the High Court denied the plaintiff special leave to appeal.[22] In January 1961, Heffron announced the date of the referendum for 29 April 1961. However, despite the lack of time allocated for a campaign, the Liberal/Country opposition led by Robert Askin spearheaded a strong campaign centred on warnings of a Labor-dominated single house subject to "Communist and Trades Hall influence".[23] As a result, the referendum on 29 April was categorically rejected with 802,512 votes (42.4%) for abolition and 1,089,193 votes (57.5%) against.[24]

The referendum, while defeated, sparked discussion on future reform of the then indirectly elected Council, culminating in the 1978 referendum which overwhelmingly endorsed the reforms proposed by the Neville Wran Labor government including the direct election of members.[25][26] Since these reforms removed many of the arguments against the upper house, another question on abolition is unlikely.

Legislative Council referendums [1]
Referendum Yes No
(4) 1933 reform Legislative Council 51.47%     48.53%    
(7) 1961 abolish Legislative Council        42.42%     57.58%
(11) 1978 directly elect Legislative Council 84.81% 15.19%
(14) 1991 reduce size of Legislative Council   57.73% 42.27%

See also

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References

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  1. ^ a b "Results of referendums in New South Wales". Parliament of New South Wales. Retrieved 25 October 2021.
  2. ^ "Defeated: council abolition bill". Glen Innes Examiner. 25 February 1926. p. 4. Retrieved 17 August 2021 – via Trove.
  3. ^ "Constitution (Legislative Council) Amendment Act 1929 No 28 (NSW)". NSW Legislation. NSW Parliamentary Counsel's Office.
  4. ^ Trethowan v Peden [1930] NSWStRp 90, (1930) 31 SR (NSW) 183 (23 December 1930), Supreme Court (Full Court).
  5. ^ Attorney-General (New South Wales) v Trethowan [1931] HCA 3, (1931) 44 CLR 394, High Court.
  6. ^ Attorney-General (New South Wales) v Trethowan [1932] UKPC 1, [1932] AC 526; [1932] UKPCHCA 1, (1932) 47 CLR 97, Privy Council (on appeal from Australia)
  7. ^ Morrison, A S (1984), "Dominions Office Correspondence on the New South Wales Constitutional Crisis 1930-1932", PhD thesis, London
  8. ^ Green, Antony. "1932 election totals". New South Wales Election Results 1856-2007. Parliament of New South Wales. Retrieved 31 July 2019.
  9. ^ "Statement by Stevens-Bruzner government". The Sydney Morning Herald. 7 March 1933. p. 8. Retrieved 11 October 2021 – via Trove.
  10. ^ "Abolition power embedded in referendum bill". The Sydney Morning Herald. 21 March 1933. p. 8. Retrieved 11 October 2021 – via Trove.
  11. ^ a b "Sinister referendum trap revealed". The Labor Daily. 7 April 1933. p. 1. and 10. Retrieved 11 October 2021 – via Trove.
  12. ^ "Legislative Council Reform Bill". The Sydney Morning Herald. 29 September 1932. p. 10. Retrieved 11 October 2021 – via Trove.
  13. ^ a b "Labour Party's plans". The Sydney Morning Herald. 23 March 1933. p. 8. Retrieved 11 October 2021 – via Trove.
  14. ^ "Loaded against Labor". The Australian Worker. 19 April 1933. p. 8. Retrieved 11 October 2021 – via Trove.
  15. ^ "Results of the Referendum on the Legislative Council Reform Bill". Government Gazette of the State of New South Wales. 6 June 1933. p. 1980. Retrieved 11 October 2021 – via Trove.
  16. ^ Estimate based on a roll of 1,465,008 at the 1932 state election: Green, Antony. "1932 election totals". New South Wales Election Results 1856-2007. Parliament of New South Wales. Retrieved 11 October 2021.
  17. ^ Piddington v Attorney-General [1933] NSWStRp 25, (1933) 33 SR (NSW) 317 (30 May 1933), Supreme Court (Full Court)
  18. ^ "Candidates declared to be elected Members of the Legislative Council". Government Gazette of the State of New South Wales. No. 16. 23 January 1934. p. 428. Retrieved 25 November 2020 – via Trove.
  19. ^ "Amazing episodes in upper house election". The Sun. 5 November 1933. p. 2. Retrieved 25 November 2020 – via Trove.
  20. ^ a b c Lovelock, Lynn; Evans, John (2008). New South Wales Legislative Council Practice. Leichhardt: The Federation Press. p. 36. ISBN 9781862876514.
  21. ^ Clayton v Attorney-General for New South Wales (1960) NSWR 592 (20 September 1960), Supreme Court (Full Court) (NSW).
  22. ^ Clayton v Heffron [1960] HCA 92, (1960) 105 CLR 214 (15 December 1960), High Court.
  23. ^ Hancock, Ian (2007). The Liberals: The NSW Division 1945-2000. Sydney: Federation Press. pp. 105–106. ISBN 978-1-86287-659-0.
  24. ^ "Constitution Further Amendment (Referendum) Act, 1930". Government Gazette of the State of New South Wales. 19 May 1961. p. 1510. Retrieved 26 June 2020 – via Trove.
  25. ^ "Result of referendum: A Bill for an Act to provide for the election of members of the Legislative Council directly by the people (82)". Government Gazette of the State of New South Wales. 14 July 1978. p. 3009. Retrieved 7 December 2020 – via Trove.
  26. ^ Green, Antony (21 March 2007). "Legislative Council history". www.abc.net.au. Retrieved 8 August 2021.
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