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Tuesday, 17 November 1964


Senator COHEN (Victoria) .- I support the motion of dissent from the ruling of the President that has been moved by the Leader of the Opposition (Senator McKenna). I point out that there is legislative authority for the Senate to discuss a vacancy in the Senate. The Electoral Act, in section 203, states -

Any question respecting the qualification of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question.

In my submission there is an unanswerable case that it is competent for us to discuss the question of a vacancy in the Senate. The Senate may proceed to move and to pass a resolution in the terms of section 203 of the Act. Apparently, Mr. President, on the basis of your ruling, it would not be competent for the Senate to discuss a vacancy unless on a motion for reference under section 203. I gave notice yesterday of my intention to move a motion to the effect that the question should be referred to the Court of Disputed Returns and I suggest that there would not have been the slightest difficulty about the competence of the Senate to debate that motion. But,, it was indicated to the Leader of the Opposition in the Senate in the early hours of this morning by the Leader of the Government in the Senate (Senator Paltridge) that time would not be granted to debate my motion. I accordingly withdrew the motion in that form this morning, and I submitted the urgency motion which is presently being considered by the Senate.

Mr. President,I feel bound to say, with respect, that the ruling which you have given means that the Senate will abdicate its power and its authority to discuss the position of a vacancy in its ranks. Surely it is in the interests not only of the people of Western Australia and of any person who might be appointed by the Parliament of Western Australia to fill this casual vacancy, but also of the Senate itself that no person should come to sit as a senator or remain as a senator while substantial, doubts exist as to the manner in which he has been elected and as to his constitutional rights to sit in the Senate. I find myself astonished, with respect, by the proposition that the Senate cannot discuss whether the Constitution is being broken at the present time in the State of Western Australia in the election of a person to take his place as a senator. If we are reduced to the position where we cannot even discuss steps to be taken, or put forward a point of view that is based on the proposition that the vacancy is not being filled constitutionally in Western Australia, then I suggest that we shall cease to have any respect in the eyes of the general community which looks to the Senate at any rate to have some general competence over its own affairs and composition.

In a case which was decided on section 1 3 of the Constitution, which deals with the composition of the Senate, Mr. Justice Isaacs drew attention to the directly elective character of the Houses of Parliament. All that my motion does is to say to the Government, in effect, that it has two alternatives. One alternative is to agree to a resolution to refer this matter to the Court of Disputed Returns, which in these circumstances is the High Court of Australia, and the other alternative is to make representations to the Western Australian Government to issue a supplementary writ in time to make it effective for the election to be held on 5th December.

With the greatest respect, it seems to me that if we cannot debate that matter, then we cannot debate anything in the Senate. The matter which I raised on behalf of the Opposition fairly and squarely places the responsibility on the Government to make sure that senators are elected in accordance with due constitutional process. We are putting it to the Government that it is running away from the fight from its heavy responsibility to see that elections are conducted in accordance with the Constitution.


Senator McClelland - We are not allowed to speak about it.


Senator COHEN - That is the position. Mr. President, if we reach the stage where the Government is in the position of being able to turn its back on this problem and accept no responsibility, I venture to suggest that there is ample room for disagreement with your ruling. I suggest that it is clearly competent for the Senate to say to the Government: "There is a danger of a senator being elected not in accordance with the Constitution. That is what is happening." The Government has the responsibility to do something about the matter or to face both the courts and the people on this issue. I cannot put it any more strongly than that.

In my view, there is the strongest basis, an incontrovertible basis, an uncontestable basis for the Senate to discuss this question. In the end, it may resolve to refer the matter to the Court of Disputed Returns to get an authoritative pronouncement upon a doubtful constitutional point, or it may by carrying this motion give a direction to the Government to take such steps as appear to be necessary and proper to safeguard the Constitution by calling upon the Western Australian Government to do its duty and to issue a supplementary writ which would have the effect of enabling the election of six senators instead of five senators at the election on 5th December. That is the proposition that the Opposition puts forward. With great respect, I suggest that the case for the competence of the Senate to discuss the matter is unanswerable.







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