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Tuesday, 17 March 1987
Page: 756


Senator AULICH —My question is to the Minister representing the Attorney-General. In light of threatened moves by Premier Gray and the Liberal Government of Tasmania to block the appointment of the official Australian Labor Party nominee, Mr John Devereux, to fill the forthcoming Senate vacancy, what, if any, plans does the Government have to place the issue before the Constitutional Commission or, alternatively, to put a further constitutional amendment to a referendum?


Senator GARETH EVANS —The whole question of the filling of casual vacancies is an issue that no doubt will be looked at by the Constitutional Commission as part of its systematic evaluation of the operation of the present Constitution, particularly in the light of recent and foreshadowed events. But the Government has no present plans to put any further amendment of section 15 of the Constitution to referendum. The basic reason that the Government has no such plans at the moment is that there is simply no need to make any change to the existing constitutional provision given the clarity of both the letter and the spirit of the existing provision, given the overwhelming endorsement that that clause received both for its letter and its spirit in the 1977 referendum, where there was a majority in all six States, totalling some 3 1/2 million in all, together with, as I have implied, a clear-cut majority in Tasmania, and given the body of precedent which has developed in the 13 separate vacancies that have been filled since 1977, which course of practice makes it absolutely clear that the Gray Government is completely one out in its evident unwillingness to accept the ALP's nominee. Finally, it is unnecessary to have a referendum given the ease with which the matter can be resolved if Mr Gray accepts the very belated advice that he is being given after a great deal of initial confusion, backing and filling and having two bob each way by the Liberal Party heirarchy and by his Federal party leaders.


Senator Durack —Who put up the referendum in the first place?


Senator GARETH EVANS —It must be acknowledged, in the light of that interjection, that it has taken a considerable time for the Federal Opposition to get its act together on this matter. Last Thursday Senator Chaney was saying, as reported widely-I would be interested to know whether he denies the reports that appeared the following day-that he did not believe that the official nomination was untouchable. He is quoted as saying that if there is a view in the State Parliament that the person nominated by the party is not a fit person to fill the vacancy the Parliament should have access to other nominations.

Last Thursday we had the extraordinary picture of Mr Howard refusing to comment on three separate occasions when the issue was put to him during the day while he scrambled around getting, by telephone, the advice and consent of his colleagues. Finally, there was an expression of tentative support for the convention in question.


Senator Durack —I take a point of order, Mr President. Senator Evans's answer is debating the point and it is debating the point totally unfairly. He is not acknowledging the fact that the referendum to which he referred was passed on the proposal of the present Opposition when in government.


The PRESIDENT —Order! There is no point of order, but I point out to Senator Evans that he was asked to reply on what action the Government was taking. He should limit his remarks to that part of the question.


Senator GARETH EVANS —Let me conclude that part of my answer then, Mr President, by saying simply that when Mr Howard's final response did come out, no doubt he was reinforced by the statement that had apparently been made by his Deputy Leader, Mr Brown, who in the meantime was saying publicly how incensed he, Mr Brown, was by Senator Chaney's comments on this particular matter.

I am glad that the Opposition has got its act together now on this matter because it has been and continues to be, so long as Premier Gray refuses to recant, a quite disgraceful episode in this country's constitutional history. It follows, of course, a period of disgraceful such episodes back in 1975 when Queensland and then New South Wales did exactly what is in issue here. In the Queensland case it was the very same incidence of refusal to accept a nominee of the particular party and appointment by contrast of some stooge who was notionally a member of the party in question. It was in everybody's mind at the time of the drafting and putting to the 1977 referendum that the convention should be followed and that the official nominee should be adopted. Indeed, it was in Mr Ellicott's mind as Attorney-General when he said, in the course of the second reading debate:

The person chosen was a member of the late Senator Milliner's Party but had not been nominated by it.

Mr Ellicott was clearly hanging his hat on the existence of this convention which has now been so spectacularly torn up by the Tasmanian Liberal Government. For a convention to exist, there needs to be either a clear-cut course of precedent supporting, in a compelling way, the particular practice that is argued, or where there is an absence of such precedent--


Senator Durack —Can't you even stop talking?


Senator GARETH EVANS —I have no doubt that this hurts Senator Durack because he has displayed a contemptibly spineless attitude to conventions of this kind and to constitutional proprieties during the whole time that he has had any responsibility for these matters. I do not doubt that he is squealing like a stuck pig at the moment because his record is not one for any constitutionalist or any lawyer to be proud of. I make the point that there is a clear-cut convention--


Senator Walters —Mr President, I take a point of order. It ill becomes someone who has been dropped from the Attorney-Generalship to cast any aspersions on anyone on this side of the chamber.


The PRESIDENT —There is no point of order, but clearly Senator Evans is beginning to debate the issue. I ask him to conclude his remarks.


Senator GARETH EVANS —Mr President, it is an important matter which relates to the reasons why the Government is not proposing to put this matter at this stage to referendum but why we take the view that there is a clear-cut convention which makes it unnecessary, provided people behave in a reasonable way, and not like the barbarians that exist opposite, on these occasions. The point that I am making-it is an important one-is that a convention is established either by a course of precedent or, in the absence of such a precedent, by compelling, logical argument in favour of the practice claimed to exist. In this instance we have both. We have not only a compelling, logical argument-otherwise an open-ended deadlock would be created in that situation-but also a constant course of precedent of 13 such examples of people being appointed when they have been the official party nominee. Moreover, there have been ample indications in the course of parliamentary debates of both Government leaders and Opposition leaders in the State parliaments in question overtly acknowledging that the precedent should be accepted on the basis of the acceptance of the official nominee of the party in question. I refer, without quoting it, because I acknowledge your desire, Mr President, that this answer should eventually terminate, to the reference made by Mr Hamer as Victorian Premier in arguing for or nominating Senator Neal to replace Senator Webster. I quote the statements made by Mr Davies, the then Leader of the Opposition, in support of it, although he did not like it--


Senator Chaney —I raise a point of order. Mr President, my point of order is that some minutes ago you drew attention to the fact that the Minister was beginning to debate the question. He has made some jocular reference to your ruling in passing as he raves on. I ask you to call him to order and sit him down.


The PRESIDENT —I ask the Minister to take notice of the comments that I made earlier and conclude his answer as soon as possible.


Senator GARETH EVANS —I will do just that, Mr President. I refer, though, to the statement made by Mr Davies, without quoting it, because it speaks for itself on the record, when supporting-although he did not like him and said he did not like him-Senator Martyr to replace Senator Rocher. I refer to the support clearly expressed by Jeff Kennett, the Victorian Leader of the Opposition-no civilised constitutional virtue there usually-without any shadow of doubt for the official nomination of Senator Powell for Senator Chipp. The coat-trailing by the Tasmanian Premier in the last few days has not been funny. It does not deserve the kind of applause it has received in some quarters as some kind of inspired piece of political mischief-making. It shows nothing less than contempt for the constitutional traditions and values accepted by the vast majority of Australians. As such it has been nothing less than a contemptible exercise.


Senator Chaney —Mr President, I ask the Minister to table the paper from which he so extensively quoted.


The PRESIDENT —Will the Minister table the document?


Senator Gareth Evans —No, I decline to do so, Mr President, on the grounds of con- fidentiality.


The PRESIDENT —The Minister will not table the document.