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Thursday, 17 February 1977


Mr JACOBI (Hawker) - I support the 4 Bills before the House. But I point out to the honourable member for Denison (Mr Hodgman) that I think the singular difference between his Tory Government and the previous Labor government is that his Government has no scruples. It prostituted the Constitution and debased the Conventions. I am rather pleased, but I am also amazed, that a Tory government for once has had a change of heart in the area of reform, rather than adhering to its oft-quoted political dictum that it believes in reform provided it changes nothing. It is rather pleasing to know that at last we have the chance for constitutional reform. We will again give the people the opportunity to face up to their constitutional responsibilities rather than do what governments and people of this country in fact have done since federation, that is, to rely upon the High Court for any meaningful constitutional change by way of High Court interpretation rather than changing the Constitution by way of referendum.

As I said earlier, I am pleased with the measure that is before the Parliament. But obviously one can be very cynical- I am, for oneabout the motives of this Government, particularly when one canvasses its record over the past half decade on either national or constitutional issues. I have spoken twice in this House on the Constitution Alteration (Simultaneous Elections) Bill 1976. I do not intend to discuss that again or the related issues because they have been brilliantly covered by the Leader of the Opposition (Mr Whitlam) and the honourable member for Kingsford-Smith (Mr Lionel Bowen).

This afternoon I want to traverse the matter of casual Senate vacancies. I had the honour of seconding a motion moved by the New South Wales Attorney-General, Mr Walker at the Australian Constitutional Convention in Hobart. The morion read as follows:

That this Convention affirms the principle that a casual vacancy in the Senate, should, in order to maintain the principle of proportional representation and the wishes of the people of the State at the relevant Senate election, be filled by a member of the same political party as the senator whose vacancy is to be filled.

Why is this particular amendment necessary? I believe it is necessary simply because some politicians, certain governments, had considered manipulation and expediency as being the tools of trade for political office. The clear intent of this constitutional amendment bluntly stated is to proscribe what scheming politicians and machinating governments cannot do and to prescribe what they ought and must do.

I turn now to the question of casual vacancies. We are not dealing with a matter of constitutional law. We are ratifying what in effect is a conventional practice. It is in both these areas that I believe the Tory Government opposite stands indicted and condemned because it abused both convention and practice, that is if one refers to them as such. We ought to traverse the history of this matter. Clearly the function of filling a casual vacancy in the Senate, as was caused by Senator Murphy as he then was or Senator Milliner, is committed to the Houses of Parliament of the State the senator represents or, if the Parliament is not in session, to the Government of that State. Section IS is explicit. It places no limits upon the choice which is open to the Houses or the Government. Let me refer to the casual vacancy concerning ex-Senator Murphy. Conscious of unrestricted power granted by section 15 the then New South Wales Premier Lewis announced he would choose a senator who was not a member of the Australian Labor Party. The choice was within the terms of section 15 and such a choice could not be set aside as being ultra vires. But the question whether the Houses of Parliament in New South Wales had acted properly or within the spirit of the Constitution as opposed to legally or according to the letter of the Constitution was strongly disputed.

On 13 February 1975 the Labor Party, as a government, successfully moved in the Senate that the chamber declare its support for the replacement of vacating senators by the appointment of senators belonging to the same political parties. Later in the same year when it became clear that the Queensland Legislative Assembly intended to vote to fill the vacancy created by the death of Senator Milliner by choosing a candidate who did not have the support of the late Senator Milliner's party, the Government moved in the House of Representatives that the House commend to the Parliaments of all the States the practice which had prevailed since 1949 and that the House express its great concern over reports that the long-established convention may not be followed by the Queensland House. The motion was carried without any division. Perhaps the clearest description of the function of these conventional rules is that provided by Marshall and Moodie. Conventions will be found in all constitutions, even those recently established. No rule of law is self applying and conventions are quickly developed to govern the application of the rules. No matter how detailed formal rules may be it is rarely possible in advance to eliminate doubts by way of legislation. They state:

The result is often to leave a significant degree of discretion to those exercising the rights or wielding the powers legally conferred, defined or permitted.

Let me repeat what I said in Hobart. If we profess and practise democracy, the political rules or conventions have another critical function. They connect the political system with the general view or concensus of what may or may not legitimately be done within the political process. Any action that is likely to destroy public respect for the existing distribution of power could not be described as conforming to the political rules or conventions. How is the convention respected? Between 1901 and 1974 63 places were vacated in the Senate before the expiry of a senator's time. On 3 occasions- in 1928, 1931 and 1946- State Houses of Parliament chose a new senator from a different political party. I ask honourable members to note the dates: 1928, 1931 and 1946. However, the introduction in 1949 of proportional representation dramatically changed the nature of political representation in the Senate. Before 1949 large majorities had been common. After 1949 the voting system changed that completely.

Since 1949 there had been, until Senator Murphy's vacancy, 25 casual vacancies. Each of those vacancies was filled by the State Houses or governments choosing a senator from the same political party as the vacating senator. Ten of the new senators were chosen by State Houses or governments controlled by political parties professing opposition to the new senators' parties. On each occasion the new senator had been nominated to the State Houses or government by the political party to which the vacating senator had belonged. Furthermore, in 1958 the Joint Committee on Constitutional Review declared that all its members were strongly of the view that the principle of choosing a new senator from the same political party as the vacating senator should be observed without exception. The Committee noted that it had not been able to draft a constitutional amendment to make this choice obligatory. It is pleasing to note this Government has done so. Further, support stemmed from Standing Committee D. The recommendations were adopted without dissent. The recommendations made by both these bodies underlines the desirability of converting either practice or convention into law. The 1959 report repeated its unanimous support cf the principle so that the matter may become the subject of a constitutional convention or understanding, which political parties will always observe'. We are now attempting to give that the force of law.

For an individual or a small group of people to use as they did, the powers conferred by section 15 of the Constitution as a means of distorting the balance of political power in the Senate is to debase our political system and to bring that system into utter contempt. The real vice in an unfettered and partisan exercise of the power conferred by section 15 is that it places the stab.ility of our political system at substantial risk. It also threatens to undermine public confidence in our political system and in turn the confidence which most people should have in their parliamentary democracy. The power remains unfettered, so far as the formal, justiciable rules of law are concerned but conventions develop to regulate the use of discretionary powers. I suggest that the tory governments of this country broke that convention in the period up to 1975.

There is no question that conventions keep the legal rules in Une with political development. While we might have expected a wide range of discretion to be exercised in the choice of senators under section 15 up to 1949 once the Senate underwent the critical political change which came with proportional representation the application also ought to have required change. We failed to make the change. We ought to take into account the 2 occasions on which a replacement senator had been chosen from outside the political party of the vacating senator. We should view the reactions of other participants in the political process. I refer to the resolution of the Senate in February 1975 commending the practice which has prevailed since 1949 and the resolution of the House of Representatives commending that practice and viewing with the greatest concern reports that the long established convention may not be followed in Queensland. What was the downstream effect of that. With all due respect to the honourable member for Denison (Mr Hodgman) it is only too obvious that actions of the State governments could hardly be said to have been greeted with general acquiescence or indifference. It has divided the community. Indeed, the hostility of public reaction seems to strengthen the argument that experience of the previous 20-odd years had led to a consensus that the power conferred by section 15 should be exercised as it is expressed in this piece of legislation.

The New South Wales Legislative Assembly chose a senator, a member of no political party. This left those New South Wales voters who had supported the Australian Labor Party on 15 May 1974 under-represented in the Senate. The new senator supported the Government on some vital issues, such as the passage of Supply, but he voted against the Government on other important issues such as the redistribution for which given the results of the double dissolution election of 18 May 1974 the Government had a clear mandate. The action of the Queensland House of Parliament had reduced the Labor Party's representation to a point where it could not defeat, with the aid of Hall and Bunton, the Opposition's motion to defer Supply. Party strength within the Senate was distorted not so much from the appointment of an anti-Labor Party senator as through the failure to appoint an endorsed Labor Party senator. That distortion allowed the Senate to vote to defer Supply- a vote which could not have been passed if the late Senator Milliner had been replaced by a Labor Party senator- and to bring on the instability and crisis in November and December 1975.

I make one last passing observation. What is the real reason why this Tory Government is motivated to press these constitutional amendments, in particular this amendment dealing with casual vacancies?


Mr Giles - You are a socialist.


Mr JACOBI -Let us see whether I am. I suggest that the reason is one of simple political necessity. This Tory Government has consciously and deliberately come to the stark reality that the constitutional poison which it prescribed and injected into the Federal Labor Government and which had such a devastating and fatal effect can be injected into this Government with the same devastating and fatal effect. Hence the legislation seeks to achieve the immunity which we were denied but with which this Government and future governments hope to be blessed. It is for that reason that I commend and support the legislation.







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