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Thursday, 19 March 1987
Page: 950

Senator TATE (Special Minister of State) —by leave-Mr President, first may I apologise to the chamber for my not being available at the time listed for the resumption of this debate. Last night I was saying that I thought it was very important that the principle which is embodied in the motion proposed by Senator Haines be affirmed by this chamber because I thought it was quite properly a matter for this chamber. My remarks at that stage were directed to saying that the matter was probably not justiciable. I did not see a High Court effectively proposing an order which would require a chamber of a State parliament or a joint sitting of a State parliament to be convened and to vote in a particular manner for the nominee of a particular political party. Therefore, it was very fitting and proper that the matter be dealt with by way of this chamber giving its view as to the conventions that should apply.

Senator Durack, I believe, challenged me as to whether it was proper to speak of the convention in terms of this motion. I think it is valid, because I do not believe the convention necessarily arises through long adherence. I believe the convention is one of those understood matters which underpin and give some sort of practical, effective, civilised meaning to the actual written words of the Constitution. Insofar as those understandings are not in black and white, they can be called conventions. But I do believe that it is very important that this chamber be involved in the affirmation of that principle, which is that a casual vacancy should be filled by the member of the political party duly nominated by that party to fill that place.

The problem, though, has arisen because of the actions of the Premier of Tasmania, Mr Gray. It is to that practical, concrete repudiation and cause of division and confrontation which I wish to address most of my remarks in the very few minutes I wish to take. Really, I could take as my text not so much the words of the motion-although, of course, I support them-but the text from Mr John Howard on 16 March on the AM program, where he said:

. . . I have no doubt that at the end of the day the person appointed to replace Senator Grimes will be a person nominated by, and acceptable to, the Tasmanian Branch of the Labor Party because that is what the Constitution says must happen.

We know from yesterday that Mr Gray has not got a great opinion and says: `You do not need to worry about Mr Howard's views on this constitutional crisis that has been artificially created'. But Mr Gray, in not paying attention to Mr Howard's clear interpretation of the situation and in running off to Queensland and dealing with Sir Joh Bjelke-Petersen and getting his advice from Sir Joh, is in fact misinterpreting the mood of not only the Australian people in general, but the Tasmanian people. The editorial in the Launceston Examiner of Tuesday, 10 March states:

In the seventies the Premier of Queensland, Sir Joh Bjelke-Petersen, rejected an ALP Senate nomination thereby breaking a sensible, civilised convention in favour of the grossest form of political expediency.

It went on to say:

Few Tasmanians would want their State to follow that sordid, miserable and undemocratic path.

I think that just about sums up the actual mood of most Tasmanians, despite the assertions of Mr Gray that he has Tasmanians behind him on this issue. Of course, it is not even an original idea of Mr Gray. Not only does he follow in the footsteps of Sir Joh and Mr Lewis of New South Wales, but of course in this particular matter he follows an obscure member of the Legislative Council, Mr Shaw of Macquarie, who first floated the idea, and Mr Gray leapt on to it as an opportunity.

The nub of the issue is that we have here a grave assault on constitutional proprieties which make our democracy a habitable place. We are not, in a democracy, simply talking about rule by the majority. The fact that Mr Gray has a majority in the House of Assembly does not give him a right to trample on the voice of those electors who wanted a Labor Party representative, selected through the Labor Party's democratic processes, in the Senate as a casual vacancy replacement. But Mr Gray is such a confrontationist that the idea of being a true conservative, of conserving those things which are of true value in our democratic political system, is beyond him. He is constitutionally incapable of it-if I may indulge in a slight pun.

The fact is that a senator is not an ambassador or emissary of the Premier or the State government or the State parliament. If that were the case, instead of a Senate being assembled here from time to time to deal with legislation, we could have merely the Premiers Conference being convened from time to time in a legislative role. At the moment, the Premiers come to Canberra from time to time to deal with the distribution of funds. They meet in the House of Representatives chamber. Let them walk across to this side of King's Hall and meet as a legislative chamber if we are going to have a situation where senators are to be regarded as mere ambassadors on behalf of State governments, Premiers or even State parliaments. Under the Constitution we know that is not the case, and the senators, of course, represent a certain quota of electors.

I do not believe that Mr Gray is merely playing some sort of game to embarrass the Labor Party, as Senator Watson suggested last night. I think there is more to it than that. It is quite clear that if Mr Devereux were not the person selected by the State Parliament but some other member of the Labor Party were to be so dis- honoured that person would be expelled from the Labor Party and, under the terms of the Constitution, could not take his or her seat in this chamber. There would therefore be a continual casual vacancy until the Tasmanian Parliament nominated and put forward a member of the Labor Party whose membership would not be stripped away by the Party subsequent to being put forward by the State Parliament. That would leave Tasmania underrepresented in this chamber.

It is interesting to hear from such an advocate of States' rights as Mr Gray that he would be willing to see a situation of continuous stalemate, of a continuous casual vacancy-a deadlock virtually-which I do not believe could be very satisfactorily resolved in the courts. It would leave Tasmania underrepresented in this chamber and in my Party room, because there are many other issues on which Mr Devereux, if he were to be the person, could make a very valuable contribution within Party forums quite apart from in this chamber. It is the role of this chamber in having a full representation of 12 senators from Tasmania that should be paramount to a person who claims to be concerned about States' rights as vehemently as Mr Gray claims to be from time to time. We would be one short on this side of the chamber because of the continuous casual vacancy. I wonder whether that is not the aim of the exercise-to strip us on this side of the chamber of one representative. I certainly do not know that there has been any undertaking from the other side that a pair would be automatically granted in that situation.

Senator Jocelyn Newman is about to make an intervention, which reminds me that when she was put forward in the Tasmanian Parliament as a replacement for our esteemed former colleague Senator Peter Rae there was no question of the Labor Party not going along with that nomination, as was the properly observed practice both in the Victorian Parliament recently and in the Parliament of New South Wales where, as I recall, the Premier and Mr Greiner both nominated Senator Sue West as a replacement for our former esteemed President. The fact is that Senator Jocelyn Newman came up through the normal processes-I suppose that I should call them democratic processes-of the Liberal Party. Mr Devereux has been nominated through the same normal democratic processes of the Labor Party. It is very important that the convention which was observed in Senator Newman's case be observed in this case. As the Mercury of Tuesday, 10 March editorialised-and this gets to the heart of what is going on:

Likes and dislikes of ideologies are facts of political life; they are, however, irrelevant to the present debate, which should not be about forestry, but which should be about filling casual vacancies in the Senate. The only attitude which really matters in the debate is that of the ALP. It wants Mr Devereux to replace one of its members in the Senate. It arrived at this decision democratically, and its wishes should be paramount. Any serious attempt to bring about a result different from the one sought by the ALP risks destroying the attempts supported in a referendum by the people of Australia to try to strengthen parliamentary stability through the Constitution.

Both Tasmanian newspapers I have quoted from reveal the real nub of the matter and give a very clear indication of a view of the activities of Mr Gray which would be well supported by the Tasmanian community: In other words, that Mr Gray is creating a diversionary crisis, an artificial crisis, which has in the end a resolution which must be in accordance with the wishes of the Tasmanian branch of the Labor Party. Mr Devereux will take his seat in this chamber and, I have no doubt, will make a very valuable contribution to its deliberations.

Senator Walters —I sincerely hope so.

Senator TATE —Even Senator Walters expresses a hope that that will be the outcome, but why does she not support this motion as an indication of the true constitutional provision which should prevail? I would like to see what she does when it comes to the vote. My remarks were to be very short. I bring them to a close simply by saying that I believe that it is well that this chamber should deal with the matter rather than the High Court of Australia. I do not think it is justiciable, anyway. Therefore it is fitting that this motion, giving some articulation to the convention underlying the natural sense of what was done by way of a referendum proposal passed by the overwhelming majority of the Australian people in each State, should put into words, which we can affirm, the correct principle to apply in this situation.