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Thursday, 17 February 1977


Mr FALCONER (Casey) - I support the 4 Bills which propose amendments to the Constitution. Many Australians may find it rather strange that politicians from both sides of this Parliament can agree on a number of important measures that are put before us. In a sense, this is a non-debate in which we are engaged. I was, however, rather interested in a statement which was made by the honourable member for Kingsford-Smith (Mr Lionel Bowen) when he took up one point in the Bill which relates to the filling of Senate casual vacancies. He said that he hoped that one clause of that Bill could be strengthened and spelt out somewhat. He referred to that part of the Constitution Alteration (Senate Casual Vacancies) Bill which states that a senator who is appointed to fill a vacancy should be a member of the Party of the senator who is deceased or has been appointed elsewhere. He said that he wanted to see that strengthened to provide that not only should that replacement senator be a member of the same Party but he should, in some way, be officially approved by that Party.

I appreciate the reasons for his saying that, but I point out that later in the same Bill there is a provision that if the new senator, before taking his seat, ceases to be a member of that Party, he shall be deemed not to have been so chosen or appointed, and the vacancy shall again be notified in accordance with section 21 of the Constitution. That effectively provides the political Party concerned with the power of veto of a particular appointment if that political Party feels that the State Government has not done the right thing and has chosen someone other than a person who would be approved by the formal endorsing authority of that Party. In the case of Senator Field, for example, who was a member of the Australian Labor Party and was known as a trade unionist, the Labor Party in that State would have had the option, as indeed it did, of expelling him. By expelling him before he took his seat it would therefore be able to prevent him taking his appointment.

The member for Kingsford-Smith, I think, was probably not satisfied with that provision. He wanted to see, as I understand it, some more formal system of ensuring that the person appointed to fill a casual vacancy was approved in some official way by an appropriate authority of that Party. I suggest that the way in which this Bill has been drafted steers a very skilful middle course. It has been very skilfully drafted to avoid some evils which could occur at either end of the spectrum. It is one thing to have a convention that a casual vacancy should be filled by a member of the same political Party and for the State Parliament, under normal circumstances, to appoint the nominee of the relevant executive body of that Party. It would be another thing, I believe, to give formal constitutional recognition to the role of executive bodies of political parties. It is appropriate to acknowledge the principle that a member of the same political Party should fill the vacancy, as the Bill does. The system of proportional representation is maintained by adherence to such a principle. It is appropriate that a political Party should be guaranteed a voice in the process of selecting that nominee. I hope I have indicated that in this Bill there is a guarantee of that political Party having a voice in veto of a nominee that it does not like.

The Bill falls short of requiring that a political Parry's nominee should be automatically accepted, and I believe wisely so. The Bill leaves the power of appointment in the hands of State parliaments. It would, I think, be inappropriate to have a constitutional measure which leaves the power of appointment formally in the hands of some executive authority of a political Party. Parliaments are identifiable constitutional entities. I suggest that State Party executives are not necessarily identifiable and certainly are subject to drastic change from time to time. The names of parties change. They collapse, they re-emerge, they split, they amalgamate, they re-form.

Let me give a few examples of cases in which it might be difficult if we were required to follow a strict provision that the endorsed candidate of a Party executive body should be accepted by the State Parliament, which would effectively remove any discretion from the State Parliament. Let us take the example of a Party which splits some time after an election. Certain members of the Party in the Senate go with the minority Party that might be formed as a result of the split. Subsequently one of the members of the minority Party dies or is appointed to some position outside the Senate. The question would arise as to whether the State executive of the Party whose endorsement he bore when he was elected should have the right to nominate someone to succeed him or whether the State executive of the new Party which was formed as a result of the split should be able to nominate someone to succeed him. I believe that in that sort of case there would be a dispute between those 2 parties, which may be subject to judicial review. There would be effectively taken out of the hands of the State Parliament any discretion to decide on an appropriate way of filling the vacancy.

Let us look at the reverse case, where there has been not a split but a reunification. Assume that Senator Steele Hall was run over by the proverbial bus and had to be replaced. Who would claim the right to nominate his replacement? Would it be the Liberal Party, or would it be the Liberal Movement which still continues in South Australia under Mr Robin Millhouse? I think the Liberal Movement might want to put forward a nominee as replacement.


Mr Scholes -It would have a right to do so because the Bill says so.


Mr FALCONER - I am suggesting that there should not be an automatic requirement on a State Parliament to accept the nomination of a State executive or some endorsing authority because I believe that it is difficult, in constitutional terms, to define the appropriate endorsing authority of a political Party. Even where a recognised Party authority nominates someone as an endorsed candidate, I suggest that there might be circumstances in which it would be inappropriate for a parliament to accept that nomination.

Perhaps what I have to say now will prove to be a little more controversial. A political party may choose to nominate as a candidate for appointment to the Senate someone whom it would not be prepared to put on its party ticket at an election because that party might know that the person whom they were nominating would not have public appeal and might in fact lose it votes if he had to face an election. Moreover, a political party might nominate for appointment to the Senate someone who has already been on a party ticket and who has been clearly rejected by the people in that State. For example, I throw in the name of Mr Bill Hartley. It is unquestioned that many people in Victoria, normal moderate Labor voters, avoided his name on the Labor Party ticket when they were casting their vote.


Mr Scholes -There is no evidence of that.


Mr FALCONER -There is ample evidence to suggest that. Any scrutineer from any political party in Victoria I think will vouch for the fact that there were cases where people clearly followed the Labor ticket except for that No. 5 spot on the Labor ticket which carried the name of Mr Bill Hartley. Is it therefore consistent with the principle of following the wishes of the electors of that State if his name is submitted and automatically accepted? I just throw in for consideration the possibility that in that type of instance it may well be competent for the State Parliament concerned to say: 'That the name is not acceptable we would like you to put up another name'. Therefore I believe it would be undesirable to put a complete straightjacket on a State Parliament in the selection of a senator. In the Bill as it stands there is a protection for the political party concerned, a protection which would ensure that a Senator Field could not be nominated and the claim made that he was an adequate representative of that political party.

I would like to move very quickly to the other matters which are before the House at this stage. One Bill refers to the retiring age of judges. It requires that there be a maximum retiring age of 70 years. In addition to the support that has been stated by other honourable members in this Chamber, I want to state my support for this proposal. We do not want geriatric judges dominating the judicial system. No one denies that many of the judges who have reached advanced years, the names of whom were recited by the Leader of the Opposition (Mr E. G. Whitlam), retain high intellectual talents which can be of use to the community. But not everyone recognises when those intellectual talents are being dimmed. If there is any fear that by requiring judges to retire at 70 years of age we will be losing talents that could be used in the service of the community, I suggest that that fear should be set aside. There are surely many cases where we require royal commissioners, people to serve on boards and committees of inquiry and people to be appointed as directors or commissioners of government authorities for periods of one, three or five years- specified terms after which they must retire. In all of these instances retired judges could be most useful. They could be selected for a purpose which is suited to their intellectual talents and to the time that they have available. So I would suggest that we would not lose the talents of experienced judges as a result of this measure. We will in fact be able to use them in many other areas where there is often a scarcity of suitable people.

I want to say on behalf of the residents of the outer eastern suburbs of Melbourne that another Bill before the House which proposes to enable the residents of Federal Territories to vote in referendums is a most desirable one. I find it rather strange for some people to suggest that the residents of the Territories are in some way not citizens of the Commonwealth. I know that they have drawn these conclusions from reading certain extracts from recent High Court judgments. I would think that most people in Australia would recognise that residents of the Territories are citizens of Australia and that they should not be excluded by some narrow legal definition from exercising their rights to vote in national referendums. Of course, residents of the Territories will not be counted in terms of the requirement for a majority of the States to pass a measure but it is surely appropriate that they be counted on matters concerning the government of Australia as a whole- the structure of government which our Constitution provides. They, as citizens of the Territories, have as much right to express a view on that matter as do citizens of the States. I find any suggestion to the contrary quite incredible to accept.

The proposal concerning simultaneous elections is once again something that is eminently reasonable. I think that the vast majority of people hold the view that they should be able to cast their vote for both Houses at the one time and not be required to go along for a second time to vote for half of the Senate only. This is a chore to which no citizen looks forward. It is certainly a chore which none of our Party supporters look forward to getting involved in. The occasions when I get least enthusiasm from my own Party supporters- I am sure this is the experience of honourable members opposite- is when they have to get out and campaign for a Senate election only and not for their local member in the House of Representatives. For those reasons I believe that the measures before us will be accepted by the Australian people.







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