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Tuesday, 12 May 1987
Page: 2985


Mr HOWARD (Leader of the Opposition)(3.29) —Let me say at the outset of my speech that I remain of the view that I have expressed on a number of occasions, and I will repeat it for the benefit of the House and for the benefit of the Prime Minister (Mr Hawke), who never displays the Prime Ministerial courtesies that have normally been extended in this Parliament. The Prime Minister spent 20 minutes lecturing the Parliament about constitutional, political and parliamentary propriety but he does not have the courtesy to extend even the most basic courtesy to this side of the House on a matter that he says is of supreme constitutional importance. We will just put that aside for one moment. Let me repeat what I said on 8 May-and let me repeat it so that there will be no misunderstanding even on the part of the Prime Minister and those who sit opposite. I believe that persons appointed to fill casual vacancies of the kind created by Senator Grimes's departure ought to be filled by the person nominated by the retiring senator's political party.

Government members interjecting-


Mr HOWARD —If the noisy boys opposite will hold on for a moment, if they are really interested--


Mr DEPUTY SPEAKER (Mr Leo McLeay) -Order! The Leader of the Opposition should not provoke them if I am attempting to get order for him.


Mr HOWARD —Mr Deputy Speaker, respect for the position you occupy restrains me from replying with the reply that you ought to receive on that. This motion is supposed to be about an important constitutional principle. Let us understand one thing very clearly: What the Constitution requires in its strict letter of interpretation is that the person appointed to fill the vacancy must be a member of the relevant political party at the time that person takes his or her seat in the Senate. That is what the Constitution requires.

Government members interjecting-


Mr HOWARD —Government members can make as such noise as they like, but if they are interested in a serious debate on what the Constitution says, they can totally ignore most of what the Prime Minister said because he failed abysmally to understand what the Constitution says and he also failed abysmally to take any account of what his own Deputy Prime Minister (Mr Lionel Bowen) said last Friday, when he gave the game away. The Deputy Prime Minister said: `Oh, I have got to admit there is a bit of a weakness in the Constitution. We might take it to the High Court'. What did he say after he said: `We might take it to the High Court'? He said: `We would just lose if we took it to the High Court'. In other words, what the Deputy Prime Minister was saying is the strict legal reality. The strict legal reality is that when the Constitution was amended in 1977--

Government members interjecting-


Mr HOWARD —The more those sitting opposite carry on, the more we on this side like it. The more they carry on, the more relevant becomes the realisation that their Prime Minister's address was not directed to a strict legal interpretation of the Constitution but, rather, to a political judgment as to what ought to be done. Let me say to those sitting opposite that I did not agree with the action of the New South Wales Government in appointing Bunton; I did not agree with the action of the Queensland Government in appointing Field; and I do not agree with the action of the Tasmanian Government or the Tasmanian Parliament in blocking Devereux's appointment. I do not agree with that for one very simple reason: I believe it is a very unwise political practice for a government, although it has the strict power under the Constitution--


Mr Hollis —Oh!


Mr HOWARD —It is all very well for the honourable member to say `Oh' like that. There was not one syllable in the Prime Minister's speech which disputed what I am saying, because the Prime Minister was talking about desirable political practice. I agree, and as I have said on a number of occasions--

Government members interjecting-


Mr DEPUTY SPEAKER —Order!


Mr HOWARD —I am not worried about being protected from those people, Mr Deputy Speaker. You can have one of your gratuitous interventions if you want to, but I am not the least bit--


Mr DEPUTY SPEAKER —Order! Honour- able members on my right will cease interjecting. The Leader of the Opposition deserves the right to be heard in silence and he will be heard in silence. The honourable member for La Trobe is not helping anybody or himself.


Mr HOWARD —The motion that the House is being invited to support is asking the House to express the view that it is desirable in all cases where a casual vacancy occurs for that casual vacancy to be filled by a person belonging to the political party to which the person who died, resigned or retired belonged. I have no argument with that. I have made that plain on a number of occasions. What I have endeavoured to do is to point out the technical fallacy of the Prime Minister's argument and to remind the Prime Minister that the amendment that was carried by the Australian people to the Constitution in 1977 did not require that the person appointed to fill the casual vacancy be the person nominated by the political party to which the retiring or deceased senator belonged. Those opposite can interject, they can carry on, they can examine, and they can analyse the words of the Constitution as long as they like, but that, in reality, is what the Constitution precisely falls short of saying.

That is not to say that it is not desirable practice, and it is not to say that I agree with the action that has been taken by the Tasmanian Government-I do not, and I have made that clear on a number of occasions. But we have this rather curious notion that because the Constitution said that the person had to be a member of the political party at the time he or she took the seat in the Senate, then ipso facto the person automatically nominated by the political party is the person who must take that place. I think that ought to happen; I think it is desirable for it to happen; and I have expressed the view that it should happen. But it is arrant legal nonsense for the Prime Minister or anybody else in this House to get up here and to say, `That is what the Constitution says', because it is not what the Constitution says.

The history of this particular issue owes a great deal to the way in which the Federal Government, under the present Prime Minister, has treated the State of Tasmania and the Tasmanian Government. The Prime Minister had the gall to get up in this Parliament in answer to my first question at Question Time and say that under no circumstances would the Hawke Government ever stoop to playing politics with the interests of the people of Tasmania. He gave the people of Tasmania an assurance that that $50m of general revenue funds would not be withheld from the Tasmanian people because of what was happening over Senator Grimes's vacancy. Yet what on earth are the Prime Minister and the Minister for Arts, Heritage and Environment (Mr Cohen) doing other than playing politics over the Lemonthyme with the people of Tasmania? Have they forgotten and have those who sit behind them forgotten that only 18 months ago, their Minister for Primary Industry entered into a solemn memorandum of understanding with the Tasmanian Government about the logging of the Lemonthyme? Have they forgotten that they repudiated that agreement? They have the nerve to come into this Parliament and talk about constitutional propriety. They have the nerve to lecture the Tasmanian Government on constitutional propriety. They have the nerve to tell us what is the right thing to do. Yet despite the fact that they made a solemn agreement with the Tasmanian Government, because Graham Richardson, Rod Cameron and a few of their other advisers came along and said, `You are starting to lose support within the environment vote section of the community', they decided to do two things. The Prime Minister got in his plane and went to Kakadu National Park and he decided to repudiate the Lemonthyme agreement that had been made between this Government and the Tasmanian Government.


Mr Chynoweth —Good.


Mr HOWARD —One honourable member interjects and says: `Good'. Does he think it is good for the Hawke Government to repudiate agreements? Does he think it is good for the Government of this country to thumb its nose at an agreement that has been made? If that is the attitude Government members adopt, all I can say is that it is no wonder that you have provoked the Tasmanian Government into taking some of the actions it has taken. It is absolutely beyond belief that Government members have the gall to come into this Parliament to cheer on the concept that agreements made between the Federal Government and the Government of Tasmania should be so completely violated. However, it is not surprising because the Hawke Government has a very long history and a very long tradition of disturbing the balance that exists in our community between the Commonwealth Government and the State governments.

The honourable member for Dunkley (Mr Chynoweth) may sneer and attempt to interject, but it was a very sad day for this country when the Government of which he is a member chose to use the external affairs power of our Constitution to justify intervening in the internal affairs of the States of Australia. That action, that intervention and that decision have done more to disturb the Federal compact and the historic balance between the Federal Government and the State governments than any other action of any other government in relation to federalism in this country. A great deal of the genius of the Constitution under which we live was the compact and the balance that existed between the Federal Government and the State governments.

A great deal of the resentment that is felt in the less populous States of Australia, of which Tasmania is the best example, towards the Federal Government and particularly towards the present Federal Government is the feeling that, so far as they are concerned, on all matters Canberra always knows best. They will not hesitate to use powers that were never intended by our founding fathers to be used for purposes for which they have been used over the past couple of years. I say without any fear of contradiction that a great deal of the bad blood that exists between the present Federal Government and the present Tasmanian Government is a result of the abuse of the external affairs power by the Hawke Government. It started on that course of action the night it was elected and it has continued on that course of action since.

The Government's decision to introduce the Lemonthyme legislation, to put at risk the jobs of hundreds if not thousands of Australian workers who live in Tasmania-an action, incidentally, that has caused the Labor Opposition Leader, Neil Batt, in Tasmania to criticise the Hawke Government, an action that has caused the Australian Council of Trade Unions to criticise it and an action that has caused the entire Labor movement, with the virtual exception of Devereux himself, to criticise the Hawke Government-has done more to poison the well of goodwill and relations between the Tasmanian Government and the Government in Canberra than any other action. The Hawke Government can carry on with supreme indifference to the interests of the people of Tasmania. Quite clearly, it has written off its Federal political prospects in Tasmania, otherwise it would not treat the Tasmanian people with such supreme contempt. As I said at the commencement of my speech, whilst I hold the view that I have expressed on a number of occasions that vacancies should be filled in the manner I have described, the Government does not come to this issue with clean hands. I move the following amendment to the motion:

add the following words at the end of the motion:

(4) calls on the Federal Government to maintain and preserve the traditional and Constitutional division of powers between the Federal Government and the State Governments and in particular calls on the Federal Government not to use the external affairs power for the purposes of intervening in the affairs of the States.


Mr DEPUTY SPEAKER (Mr Leo McLeay) —Is the amendment seconded?


Mr Sinclair —I second the amendment and reserve my right to speak.