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Thursday, 19 March 1987
Page: 952


Senator DURACK(10.25) —I had commenced my remarks in the absence of Senator Tate, but I am pleased that Senator Tate returned to the chamber in time to complete his remarks. Notice of the motion we are addressing was given by Senator Haines the day before yesterday, and it was introduced last night, accompanied by a long speech from Senator Haines, before the adjournment. The motion, for which she seeks to obtain the support of the Senate, contains two propositions. The first is that, in the case of a casual vacancy occurring in the term of a senator, in the Senate's opinion the person chosen to fill the vacant place in accordance with section 15 of the Constitution should be the member of the political party duly nominated by that party to fill that place. The Opposition supports that. If the motion were simply in those terms, we would support it.

However, another limb of Senator Haines's motion singles out the Cain Labor Government for having been so good about replacing Senator Missen, when he died, with a Liberal. In the first place that was all that the motion stated, but subsequently Senator Haines added some further words, after the reference to the Cain Labor Government, `following a long line of similar instances'. Those words were added by Senator Haines after she gave notice of the motion, so she realised fairly quickly that that aspect of the motion singling out Mr Cain was rather gratuitous and unnecessary. The motion goes on to deplore the threatened actions of Premier Gray in ignoring the spirit of the Constitution in this regard. The Opposition believes that that limb is quite unnecessary. It is quite wrong to single out one instance, as the motion does, and to deplore what are called the threatened actions of Premier Gray in ignoring the spirit of the Constitution.

I have circulated an amendment which I propose to move to delete the second limb of Senator Haines's motion. I will address the reasons for that later. I will initially address the first part of the motion, which the Opposition will support. There has been a good deal of discussion in this debate, both in this chamber and elsewhere, about the convention that has developed to require that a State parliament, in choosing a person of the same political party to fill a casual vacancy, should act on the nomination of that party. It is interesting to note that debate, because it seems to be taking place as though there had never been an amendment to section 15 of the Constitution in 1977. It is interesting also to look back and read the debates in this chamber of February 1975 when the first major issue of this kind arose in Australia, when the Whitlam Labor Government appointed the then Senator Murphy to the High Court of Australia, creating a casual vacancy in the Senate. The then Premier of New South Wales, Mr Lewis, threatened, and ultimately carried out the threat, to replace Senator Murphy with a person other than a nominee of the Australian Labor Party. The Leader of the Government in the Senate at that time, Senator Wriedt-also from Tasmania-proposed a motion in these terms:

(1) The Senate is of the opinion that proportional representation for the Senate calls for maintaining the status quo in Party representation when casual vacancies are filled by the choice or appointment of a person pursuant to section 15 of the Constitution, and that if a senator is succeeded by a senator of another Party, proportional representation is destroyed.

(2) The Senate notes that since the introduction of proportional representation in 1949, the States have without exception filled vacancies by the appointment of senators belonging to the same political parties of the vacating senators.

(3) The Senate views with the greatest concern reports that the long-established convention may not be followed in relation to the filling of the vacancy now existing in the representation of the State of New South Wales.

We had a very lengthy debate in the Senate on 12 February 1975, the next day, in the course of which Senator Withers, who was then Leader of the Opposition in the Senate, moved an amendment, the purpose of which was to acknowledge the position and the power of State parliaments in these matters, and also to replace the word `convention' with the word `practice'. Senator Wriedt, on behalf of the then Government, accepted the amendment from `convention' to `practice'. So even though this was a matter which had been followed repeatedly from 1949 to 1975, Senator Wriedt and the Whitlam Government were prepared simply to accept as a practice rather than a convention that the vacancy should be filled by a senator from the same party. That was the issue at that time. The issue challenged by Premier Lewis was that the person should be of the same party.

Following the kerfuffle in February 1975 about the replacement of Senator Murphy the issue subsequently arose about the replacement of a Queensland Labor senator who died, Senator Milliner, by Senator Field from Queensland. Because these issues arose in 1975 the Fraser Government, after it was elected at the end of 1975, called a meeting of the Constitutional Convention, which was held in Hobart at the end of October 1976. The question was dealt with at that Convention and a view was expressed widely-indeed, it was widely held in the Senate-that there was a very firm practice of replacing senators with senators of the same party.

As a result of that Constitutional Convention, the Fraser Government believed that the matter should not be left simply to practice-or to convention if that is what one wants to call it-but should be enshrined in the Constitution. It proposed a number of changes to the Constitution in a referendum in May 1977. As a result of the overwhelming support by Australians, the present section 15 of the Constitution was included to enshrine the principle that a casual vacancy in the Senate must be filled by a member of the party of the senator whose position has become vacant. The Constitution makes that perfectly clear.

The Constitution goes further and provides that if a person ceases to be a member of that party after he or she has been chosen by a State parliament, he or she has got to be a member of that party when he or she is sworn into and takes his or her place in the Senate. As I said, that was a proposal that was widely considered, widely debated and widely supported and it was inserted into the Constitution almost 10 years ago. I think we have been told in this place by Senator Gareth Evans, and certainly by others, that in fact over this near 10-year period 13 casual vacancies have been filled under that new section 15 of the Constitution.

The interesting thing about section 15 of the Constitution is that it has retained, and retained with the support of the Australian Labor Party at the time, the principle that the vacancy is filled by the State parliament, or the State government if the State parliament is not sitting. That has always been the principle of section 15 and that was what the Opposition desired to point out in 1975-that in fact the State governments, up until the 1977 amendment, had complete freedom of action as a matter of law, although we agreed that it was desirable that the practice of replacing a person by one from the same political party should be followed. As a result of the 1977 amendment proposed by the Fraser Government, the powers of the State parliaments have been very greatly circumscribed. Indeed, I can remember in 1977, when representing the then Attorney-General, putting that legislation through the Senate. It was very much supported, it always has been supported, and it always will be supported, by my side of politics.

As recently as a few days ago that principle was again supported by both the Leader of the Opposition, Mr Howard, and the Leader of the Opposition in the Senate, Senator Chaney. Senator Chaney's statement on the matter was issued last Friday, 13 March. In that statement he very clearly expressed his support for what Mr Howard had said, and gave his view that the principle should be followed that not only should the person be a member of the same political party, as the Constitution requires, but also that the State Parliament should accept the nominee of the party organisation to which the retiring or deceased senator belonged. That is the way in which the person of the same party is chosen, namely, by the party organisation and not by the State parliament.

As I said, Senator Haines's first proposition is one which in general terms we agree with and support. We would point out that it says that a person chosen to fill the vacant place:

In accordance with section 15 of the Constitution should be-

not `must be' but the person `should be'-

the member of the political party duly nominated by that party . . .

As I pointed out, section 15 of the Constitution does not say `must be', and I am pleased that Senator Haines has chosen the word `should' instead. I would also like to point out that there are some very obvious exceptions to that rule. What we are really saying is that it should, in normal circumstances, be that person. For instance, section 15 of the Constitution recognises the fact that there may be no member of a party available at the time. There may even be no party as the party may have disappeared. We keep on thinking that the only political parties in Australia are the Australian Labor Party, the Liberal Party of Australia, the National Party of Australia and the Australian Democrats. But, of course, Senator Vallentine was elected to this place by a party which, as far as I know, has all blown up since she was elected. Who would replace Senator Vallentine if she retired or resigned? So there is an obvious case even in our present situation.

One must recognise that numbers of parties come and go in this country. I think Senator Haines told us that when she first came here she was appointed by the Liberal Movement. That party has disappeared from the political landscape. Any practices or conventions under the Constitution have to be flexible. We cannot have hard and fast rules. When we say that a person should be nominated by a party, it assumes many things: It assumes that there is a party; it assumes that there is somebody available; and it assumes that the party meets and appoints somebody. It must also assume that that person is a qualified person under the Constitution and not otherwise disqualified to be a member of the Senate. So there are four instances that readily come to mind as to why we cannot have some hard, fast and absolute rule for which Senator Haines contends and for which I am sure Senator Tate and Senator Gareth Evans contend in a totally unthinking way. There must be qualifications.

We are not in the business of drafting a detailed proposition. Senator Haines has put up a general proposition with which we agree very readily. But I simply want to point out that there are clearly some exceptions to it. I am sure that if Senator Haines thought about it a little more, she would acknowledge that-and perhaps even Senator Evans might acknowledge that. I do not know whether Senator Tate would acknowledge it, because he has come in here and contended for some extraordinary view of what is a constitutional convention-he says that it is now a convention-that the nominee of the party must be accepted. This is a pretty strong view. Conventions are much stronger than practices. It is a convention which has apparently developed in the space of less than 10 years. Certainly over those 10 years 13 cases have followed the same practice, the one with which we all now agree. But to claim that to be a convention is an extraordinary proposition. Even more extraordinary was Senator Tate's definition of a convention which would not require any more than one case to occur. In fact no case at all may occur; it may happen by agreement amongst people even though a situation has not arisen. Senator Tate's views on what is a convention are very strange indeed.

I have just had the opportunity to look at the report to the Australian Constitutional Convention in 1980 by one of its standing committees. The paper, by Dr Cheryl Saunders and Mr Ewart Smith, who was then a Deputy Secretary of the Attorney-General's Department, identifies the conventions associated with the Commonwealth Constitution. This is the first attempt that I am aware of actually to draw together what are constitutional conventions over the period of 80 years of our constitutional history, many of which have now been adopted by the Australian Constitutional Convention. But Dr Saunders and Mr Smith were very cautious in how they approached the question of what are and what are not conventions. Chapter 1, paragraph 1.2 states:

In preparing the paper we have not been concerned to draw fine distinctions between conventions and customary practices which may in time achieve the status of conventions. There is considerable disagreement amongst authorities as to the tests by which conventions properly so-called can be identified . . .

I think the attempt by Senator Tate in this debate to erect this proposal in Senator Haines's motion as a constitutional convention must dismally fail.

I have said that the Opposition is not prepared to support the second limb of Senator Haines's motion and I now formally move an amendment to delete that limb. I move:

Leave out paragraph (b).

The reason I move that is two-fold. I have already dealt with this point. The Opposition thinks it is quite gratuitous simply to single out for praise the Cain Labor Government. It makes one wonder about the Australian Democrats when they single out the Cain Labor Government. It is typical of the Democrats to single out for praise a State Labor government for its action in one out of 13 instances where a casual vacancy has been filled.


Senator Sanders —We are socially aware.


Senator DURACK —Senator Sanders is now saying how socially aware they are and all the rest of it, but he is only compounding the felony. That is quite ridiculous. I know that Senator Haines had second thoughts about this paragraph. She must have been embarrassed about it because she has this lame addition `following a long line of similar instances', but she leaves the Cain Government there for specific praise. That is really a quite unnecessary and gratuitous statement which it is ridiculous to have in a motion at all except in that it is a revelation of the thinking of the Democrats.

The motion then goes on to deplore the threatened actions of Premier Gray in ignoring the spirit of the Constitution. It is interesting that she regards it only as `the spirit of the Constitution' and not even a practice, which is very different from Senator Tate who gives it the status of a convention. She talks about it being `the spirit of the Constitution'. Premier Gray has been expressing some views as to what his powers are. I think that as a matter of law what Premier Gray has been saying is quite correct. Certainly the constitutional amendment in 1977 preserves the power of State parliaments in respect of casual vacancies to the Senate subject to the terms of the Constitution. A State is only circumscribed as a matter of law by the need to replace a casual vacancy with a senator of the same party, not necessarily nominated by that party. We are simply agreeing that it is a desirable practice. It has been followed in 13 cases and it should be followed again by Premier Gray. He should replace the senator from Tasmania in that fashion, but the vacancy has not even occurred yet. It may never occur. For all we know, Senator Grimes may change his mind. But certainly Mr Gray has been saying that he may not accept the nomination of the Labor Party when it is presented to him, but it has not yet been presented to him. The Party may have met and may have chosen Mr Devereux, but that nomination has not been presented to Mr Gray for attention under section 15 because the situation has not yet arisen.

It must be remembered that Mr Gray is making his statements in the context of a major threat by the Hawke Labor Government to the powers and the independence of Tasmania. It has done that on numerous occasions. Of course, it did it in the Franklin dam case and it passed legislation through this Parliament in 1983. That action made not only Mr Gray very sensitive but it made most Tasmanians furious and it particularly made furious the Tasmanian members of the Labor Party who were going to lose their jobs.


Senator Walters —We got rid of the Attorney-General.


Senator DURACK —Yes, that is right. He flew over Tasmania or something at the time and took spy photographs. I thank Senator Walters for reminding me about that. The fact is that Mr Gray's comments are in the context of further legislation in this Parliament-I understand that it will probably come into this Senate today for debate on Monday-that will enable the Hawke Labor Government to repeat the same assault on the interests and rights of Tasmanians. Mr Gray's attitude on the Hawke Government's actions in that respect is supported by the Labor Party in Tasmania--


Senator Gareth Evans —Mr Acting Deputy President, I take a point of order. This has absolutely nothing to do with the substance of the motion before us. I suggest, Mr Acting Deputy President, that you call Senator Durack to order.


The ACTING DEPUTY PRESIDENT (Senator Morris) —Senator Durack, I ask you to speak to the motion.


Senator DURACK —The motion we are asked to support deplores the actions of Premier Gray. What I am saying about Premier Gray's actions is highly relevant. Mr Gray is supported by the State Labor leader of Tasmania, Mr Batt; the Tasmanian unions, whose members' jobs will probably be threatened again; and the Australian Council of Trade Unions. No wonder Mr Gray is very upset about the proposed nominee of the Labor Party and has been expressing some pretty strong views about it. As the Leader of the Opposition, Mr Howard, has said over and over again, he is quite satisfied that, at the end of the day, Mr Gray and the Tasmanian Parliament will follow not only the Constitution, which they must follow, but also the practice that has developed whereby the State Parliament accepts the nominee of the party concerned, subject of course to the sorts of qualifications which are obvious and which I have already indicated. As I have said, the Opposition supports the prin-ciple of the motion moved by Senator Haines, but we do not support the totally unnecessary gratuitous and offensive remarks that are contained in the second limb.