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Tuesday, 12 May 1987
Page: 2982


Mr HAWKE (Prime Minister)(3.10) —I move:

That this House-

(1) Noting the-

(a) failure of the Joint Sitting of the Tasmanian Parliament on 8 May 1987 to choose the duly nominated ALP candidate Mr John Devereux, to fill the casual vacancy consequent on the resignation of Dr Don Grimes;

(b) resolution of the Senate of 19 March 1987 endorsing the constitutional convention, established in 13 successive instances since the 1977 Referendum, that ``a person chosen to fill the vacant place in accordance with s. 15 of the Constitution should be the member of the political party duly nominated by that party to fill that place'', and

(c) statement by the Leader of the Opposition, the Hon. John Howard, on 8 May 1987 that ``I believe that the person appointed to fill casual vacancies of this kind ought to be the person nominated by the retiring Senator's political party'', and the statements in support of the established convention made by the leaders of all other parties in the Commonwealth Parliament;

(2) calls on the Presiding Officers of the Tasmanian Parliament to immediately take such action as is necessary to reconvene the Joint Sitting of the Houses of the Tasmanian Parliament to fill the vacancy in order that representation of the people of Tasmania in this place be in accordance with their constitutional entitlements, and

(3) calls on the members of the Tasmanian House of Assembly and Legislative Council, including members of the Gray Government, who have to date acted contrary to the established convention, to vote at such a Joint Sitting to accept the nominated ALP candidate, Mr John Devereux.

The motion before us today has been made necessary by the unprincipled behaviour of the Tasmanian Premier, Robin Gray. Since Don Grimes resigned his Senate seat on 2 April, we have been treated to a display of disruption, deadlock and delay as the Tasmanian Premier has sought to obstruct the proper processes of nominating a replacement senator. Last Friday a joint sitting of the Tasmanian Parliament voted to reject the duly nominated Australian Labor Party candidate to fill the vacancy in the Senate, Mr John Devereux. We are thus faced with an extraordinary situation-one replete with political as well as profound constitutional implications.


Mr DEPUTY SPEAKER (Mr Leo McLeay) -Order! There is far too much noise in the chamber. Will the honourable member for Cook and the honourable member for Kooyong resume their seats.


Mr HAWKE —They are just counting numbers, Mr Deputy Speaker. A State parliament, at the urging of the Premier, has flown in the face of the clear intention of a constitutional provision. The vacancy in the Senate remains unfilled, and Tasmanians remain under-represented in the Senate, while the machinery specified in the Constitution to resolve those shortcomings has been flouted. A State Premier has set himself up as the person who is to determine who may or may not sit in the Federal Parliament.

Now, more than a month after the seat first fell vacant, we have no replacement senator, and no immediate prospect of one. Beyond all the manoeuvrings, all the talk, this fact remains: We have only four ALP senators to represent Tasmania when Tasmanians voted for five. Tasmanians are represented by only 11 senators when they are constitutionally entitled to 12. And Premier Gray, by reportedly stating that he will not recall Parliament before July, has promised that the deadlock will remain unresolved.

Many Australians would wonder how this could happen when we have constitutional provisions designed to ensure that any Senate vacancies are filled promptly. More particularly they would wonder how this could happen when they voted overwhelmingly just 10 years ago to tighten the constitutional provisions following abuses of them by two conservative State governments. The answer is that the Tasmanian Government has allowed short term political motives to determine its conduct in this matter and has set aside the well-established and proper constitutional course.

The Tasmanian Parliament has thumbed its nose at the 70 per cent of Australians who supported the 1977 referendum designed to eliminate that kind of dispute from our political life. I remind the House that, in 1977, the Constitution was changed in order to embody the constitutional convention that a person chosen to fill the vacant place in the Senate in accordance with section 15 of the Constitution should be the member of the political Party of the outgoing senator duly nominated by that Party to fill that place.


Mr Hodgman —On a point of order, Mr Deputy Speaker: The words `duly nominated' do not appear--


Mr DEPUTY SPEAKER —Order! There is no point of order.


Mr Hodgman —I am sorry, Mr Deputy Speaker, but there is a point of order. I refer you to page 654 of Pettifer's House of Representatives Practice which states:

It is a grave contempt to deliberately mislead the House.

The words `duly nominated' do not appear and the Prime Minister is misleading the House.


Mr DEPUTY SPEAKER —Order! The honourable member for Denison will resume his seat.


Mr HAWKE —The intention of that constitutional amendment is crystal clear--


Mr Hodgman —It does not say `duly nominated'.


Mr HAWKE —It is crystal clear to everyone except that inane interjector. The outcome should be--


Mr Hodgman —On a point of order, Mr Deputy Speaker: I ask you to hear me. The words `duly nominated' do not appear in section 15. The Prime Minister is misleading the House.


Mr DEPUTY SPEAKER —Order! There is no point of order.


Mr HAWKE —As I said, the intention of that constitutional amendment is crystal clear. The outcome should be that Mr Devereux should take his place in the Senate. On 13 occasions since 1977, when Senate vacancies have arisen, State parliaments have voted smoothly and without controversy of any kind to appoint a replacement nominated by the party of the outgoing senator. That practice has been endorsed by the political leaders of all the main political parties without exception-and why not, for that is the only way to ensure that the will of the people expressed at election time can be honoured.

Of the 13 precedents, there are numerous occasions where a government has accepted without demur the nominee of another party. These include the New South Wales Labor Government's acceptance of the Liberals' nominee to replace Senator Sir Robert Cotton in 1978; the Victorian Labor Government's acceptance of the Liberals' nominee to replace the late Senator Missen last year; and earlier this year the Victorian Labor Government's acceptance of the Democrats' nominee to replace Senator Chipp.

The Tasmanian Parliament, when called upon last year to fill the vacancy caused by the resignation of Mr Peter Rae, unhesitatingly accepted the Liberal Party nominee to replace him. But on this occasion, when called upon to fill a Labor vacancy, the Tasmanian Government shirked its constitutional duties and broke the long line of precedents. Thus it is not only the very clear intention of the constitutional provisions, but also the invariable practice to replace a senator with the person nominated by his political party.

The Tasmanian Premier, however, claims a right to take issue with replacements nominated by political parties where he is not happy with their policies. Such an approach renders the constitutional procedures unworkable. The plain fact is that if State governments waited until replacements nominated by an opposing political party agreed with their policies, no such vacancy would ever be filled.

The constitutional provisions also clearly envisage a minimum of delay. Section 15 states that the Parliament of a State shall choose a replacement if a Senate place falls vacant. Alternatively, if the Parliament is not in session the Governor, with the advice of the Executive Council of the State, shall nominate a replacement. Yet the Tasmanian Government appears unperturbed about the prospect of lengthy delays-


Mr Hodgman —Well, challenge it in the High Court.


Mr DEPUTY SPEAKER —Order! The honourable member for Denison will cease interjecting.


Mr HAWKE —It is all very well saying `Order'; the honourable member just keeps interjecting. In matters such as these, involving the functioning of our basic political institutions, the community looks to politicians and governments to obey the rules. To do otherwise is to risk damage to the nation's confidence in its fundamental institutions; damage that cannot easily be repaired. The principle in this situation has always been clear. Well before the Australian people changed the Constitution in 1977, the proper course had been apparent to governments. On the occasion of the first casual vacancy in the Senate after proportional representation was introduced in 1949, the then Premier of Western Australia, in whose State the vacancy occurred, communicated with other States and the Commonwealth concerning his views about the principles involved. Among other things, the then Premier of Western Australia said:

My opinion is that, in view of the fact that proportional representation is now the method of election to the Senate, a member of the same Party, nominated by the Executive of the Party, should be appointed when future vacancies arise through death or other causes.

Appropriately enough, that Western Australian Premier, Sir Ross McLarty, was non-Labor and was considering a vacancy caused by the death of Labor Senator Nash in 1951. So, the principle was crystal clear then to that Liberal Premier. We all know that in 1975 Liberal Premier Lewis in New South Wales and National Party Premier Bjelke-Petersen in Queensland-these great defenders of law and order-decided to tear up this constitutional convention for short term political advantage. We also know that a majority voting in favour of the referendum in every State endorsed the 1977 constitutional amendment to reject this type of political opportunism.

But Liberal Premier Gray has chosen to ignore the will of the people and has chosen to leave the Tasmanian people under-represented in the Commonwealth Parliament. They are entitled to ask: For how long will the Tasmanian people be robbed of their constitutional entitlement? The Tasmanian Liberal Premier Robin Gray has effectively claimed that the precise wording of the constitutional provision allows him to pick and choose among a range of possible candidates. All that can be said for that argument is that it denies the clearly expressed wish of the voters who supported the 1977 amendment. Any other interpretation is a specious and partisan one.

What makes Liberal Premier Gray's motives even more perverse is that he claims to be acting in the interests of the people of Tasmania. He has yet to explain, however, how Tasmanians are advantaged by the denial of their full representation in the Federal Parliament. This unfair outcome makes hollow the argument so often put by those who recall the Senate's original purpose as a States House, for, by his own hand, Mr Gray has effectively reduced his State's representation in Canberra.

This goes to the most profoundly worrying aspect of this affair-its essentially anti-democratic implications. The Liberal Mr Gray says that he does not want Mr Devereux to be a senator because he disagrees with Mr Devereux's opinions on the logging of Tasmania's forests. What that attitude fails to acknowledge is that democracy is not about dealing only with people with whom one agrees and ignoring all the rest. We cannot choose our political opponents. I say, parenthetically, that if we could we would not choose any differently from the bunch that we have opposite; but we cannot choose our political opponents any more than we can dictate what they should believe. That is not our prerogative. It is our task to accept that we will have differences. It is our task to resolve those differences through debate. That is what parliaments are for. One cannot pick and choose and say: `I am going to have an Opposition with which I agree and that is the only Opposition I will have'. The very essence of what Parliament is about is that one has people on the other side of the House who have different points of view to one's own. If we move towards a position of tolerating only Oppositions with which we agree, we are gnawing away at the very vitals of democracy. This is precisely what parliaments are for-to be forums to represent the divisions within society and to ensure that those divisions within society are fully debated in this parliament of the people.

If the Liberal Mr Gray is unhappy with the views held by those who disagree with him on logging or on any other issue, the responsibility of the Liberal Mr Gray as Premier is to attempt to change those people's views through debate. That is what the responsibility of the Liberal Mr Gray is. In a democracy it is unacceptable for him to seek to gag his opponents or to deny representation in the Federal Parliament to those who have committed the great crime of having a view different from that of Mr Gray! That, after all, when one strips everything from it, is the crime of Mr Devereux-he has a different point of view from that of the Liberal Mr Gray.

I acknowledge that the Leader of the Opposition (Mr Howard) has taken the proper course in extending the pairing arrangement so as not to take advantage of the current imbalance in the Senate numbers. But it is not enough. What is clear is that anyone other than Mr Devereux is not and will not be acceptable to the Labor Party. On 16 March the Leader of the Opposition stated:

Senator Grimes's replacement will be a person nominated by and acceptable to the Tasmanian branch of the Labor Party, because-

and this is what the Leader of the Opposition said; apparently he has not conveyed the point to the honourable member for Denison-

that is what the Constitution says must happen.

Although the Leader of the Opposition does not seem to have any lines of communication with anyone in the Liberal Party any more, it is a pity that the Leader of the Opposition had not successfully conveyed that point of view to this strident member for Denison. The Leader of the Opposition went on to say:

Robin Gray won't defy the Constitution. He can't, anyway, because it is the supreme law of the country.

Yet, this is precisely what the Tasmanian Premier is now doing, and in defying the Constitution he is also defying the Federal--


Mr Hodgman —Take him on in the High Court if you believe that.


Mr DEPUTY SPEAKER (Mr Leo McLeay) -Order! I warn the honourable member for Denison.


Mr HAWKE —In defying the Constitution, the Liberal Premier of Tasmania is also defying the Federal Leader of his own political Party. However, contrasted even with statements made by the Leader of the National Party of Australia (Mr Sinclair), the Leader of the Opposition has been feeble in the extreme in failing to challenge the constitutional vandalism of his Liberal colleague, Premier Gray. His feebleness in this respect confirms not only that he has no policies to offer the Australian people but, as I said yesterday, that he simply has no authority within his own Party. In putting this motion before the House I invite the Opposition parties to stand by their own statements of constitutional principle and through that action to support the interests of the Federal Parliament. No lesser position can satisfy their proper loyalty and the interests of the State of Tasmania. I commend the motion to the House.