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Wednesday, 18 March 1987
Page: 924

Senator HAINES —Leader of the Australian Democrats) (7.06)-I move:

(a) That, where the place of a Senator who is a member of a particular political party becomes vacant before the expiration of the Senator's term of service, in the opinion of the Senate a 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; and

(b) that the Senate notes that the Victorian Cain Labor Government, following a long line of similar instances, accepted the Liberal Party's nominee to fill the casual vacancy left by the death of Senator Alan Missen, and deplores the threatened actions of Tasmanian Premier Gray in ignoring the spirit of the Constitution in this regard.

I chose in the second part of that amendment the particular example of the recent replacement of Senator Alan Missen with Senator Richard Alston because it was most similar to the case that we are currently looking at-that is, the situation in which a government of one political persuasion approved the nominee of a party with a different political persuasion. In that regard it was somewhat different from the casual vacancy of Senator West from New South Wales and slightly different from the casual vacancy of Senator Powell in place of Senator Chipp because there was no political representation from our Party in the State government concerned.

I understand that the fact that I merely listed the Cain Labor Government's acceptance of the Liberal Party's nominee to fill that casual vacancy last year, indicating only that it was one of a long line of similar instances since the Constitution was changed, has caused some concern among some Opposition members, who feel that since the list in the second part of the motion was not a definitive list they are not in a position to support the second part of that motion. If that is the case-I find it a rather odd reason for not supporting the second part of the motion-I am quite happy to support an amendment to that part of the motion that would, in fact, include the names and conditions under which an assortment of us-many of us still in this place-have come into the place to fill casual vacancies, at least in the first instance, as replacements for honourable senators who have left here for one reason or another. Madam Acting Deputy President, I am perfectly happy to list your own replacement in 1981, being chosen by the Parliament of Queensland to replace Senator Sheil. I am obviously more than happy to mention my own replacement in 1987, having been chosen by the Parliament of South Australia to replace Senator Steele Hall. Senator Parer, again chosen by the Parliament of Queensland, replaced Senator Kathy Martin, as she was then, in 1984 and Senator Margaret Reid was chosen by the Parliament of the Commonwealth of Australia to fill the casual vacancy that was left by the most untimely and very unfortunate death of Senator John Knight in 1981. In addition to that, as I have indicated, Senator Richard Alston was chosen by the Parliament of Victoria to replace Senator Alan Missen. Senator Newman was chosen by the Parliament of Tasmania to replace Senator Peter Rae and, as I mentioned, Senators Powell and West were chosen respectively by the Victorian Parliament and the New South Wales Parliament to replace Senators Chipp and McClelland when they retired from the Senate.

If it will satisfy Opposition senators, I am quite happy at the end of my comments to amend the motion to include that list. It is a definitive list, as far as I am aware, of senators who have replaced other senators following the change to section 15 of the Constitution in 1977. If Opposition senators do not want me to do so, I am perfectly happy to support them in their endeavours to do so.

In general, however, in speaking to this motion I want to remind honourable senators of the background to the present most unfortunate situation, a situation in which we have the Premier of a State refusing to accept the nomination put forward by a political party in that State which is losing a senator and wishes to have that senator replaced by somebody from the same party. From the introduction of proportional representation in 1949 until 1975 it was invariably the practice, abided by on both sides of politics, for a Senate casual vacancy to be filled by a member of the party which had previously held that seat. There is a quite substantial list of casual vacancies which occurred between those years. I do not wish to raise all of them but it is a significant list. In all cases the State government concerned-no matter what political persuasion it was-bent over backwards to be fair in selecting a replacement to fill the casual vacancy-

Senator Watson —There is no vacancy. How do you know it is not just gamesmanship to prove a point, to draw attention to an issue?

Senator HAINES —My mind does not operate along the same rather tortuous lines as Senator Watson's mind. Let me simply go back to the statement that between 1949 and 1975 it was the practice adhered to by all State governments to replace a senator who died, resigned or retired with a person nominated by the party from which the original senator had come. In 1975 the matter of maintaining the status quo in the filling of casual vacancies came under challenge. The Labor Government's Attorney-General resigned from his position to accept a position on the High Court bench. Despite what I have mentioned twice as being a long established convention of filling casual vacancies with members of the same party, the Liberal Premier of New South Wales determined to break the convention. He announced that he did not consider himself bound by the convention and appointed a candidate with no party affiliation. I felt particularly sorry for the person concerned because he came to be known by the unfortunate epithet of `a political neuter' and I would not have wished that on anybody. It was hardly his fault. The Premier of New South Wales was trying to take political advantage of the close numbers in the Senate at the time, a position which does not apply at the moment, although he used the transparent and rather hypocritical argument that he was in a position to fly in the face of convention because it was not a normal casual vacancy, that is, it was not caused by death or ill health; it was a voluntary retirement by the senator concerned.

The next departure from accepted practice took place later the same year. The perpetrator at that time was the Premier of Queensland, intent even in those days apparently on doing as much damage to the body politic as possible. It is interesting to note, I suggest to honourable senators, that on that occasion, too, the Premier's action was against the advice of his coalition partners in the Federal sphere. Mr Bjelke-Petersen's arguments in support of his actions were no more convincing than those of the Premier of New South Wales. He was unable to use the same argument as the Premier of New South Wales had used earlier that year because in this instance the vacancy had been caused by the death of a senator. The Premier's selected candidate was a member of the same party, namely, the Australian Labor Party, but was, as a consequence of accepting the Premier's offer of the casual vacancy in defiance of his party's decision, automatically expelled from the Labor Party. History records the rest. As honourable senators will recall, a writ was served challenging the candidate's eligibility to sit in the Senate but it had not been heard when the Parliament was dissolved on 11 November that year.

I suggest to the Senate that these actions were dubious in the extreme. Both they and the consequent events of 1975 caused considerable social and political bitterness on all sides, so much so that even the Fraser Government was prepared in 1977 to put to a referendum a proposal to reduce the possibility of clashes by having half the Senate go to the country at the time of each House of Representatives election and another proposal to formalise the old convention on casual vacancies. In other words, Mr Fraser went to the people seeking their endorsement of the convention that had applied until 1975 by asking that the people agree to having the Constitution amended to enforce it. As we all know, the question of simultaneous elections was narrowly rejected but section 15 of the Constitution was amended accordingly.

Senator Durack —Why are you so grudging about Fraser? Why don't you give him some credit for what he did?

Senator HAINES —I thought I was giving Mr Fraser credit for what he did.

Senator Durack —You are not; only in a most grudging way, just like Senator Evans the other day. He would not even mention it.

Senator HAINES —If it suits the tender mind of Senator Durack I will point out that it was of sufficient concern to the Fraser Government to take these steps and, as we are aware, section 15 of the Constitution was amended accordingly. It is worth while stressing the fact that the amendment was drafted by the Fraser Government Cabinet because there are still members of that Cabinet in Parliament at the moment and they include the present Opposition Leader. It is important also to note that the proposal was passed overwhelmingly by the Australian people, including, I might add, those in the State of Tasmania. It was clearly designed to prevent the repetition of the 1975 Senate casual vacancy controversy. One would therefore have thought that would have been the end of the matter, that the problem had been remedied and that everything had been restored to an even keel. In fact, it is not so. We now have the Premier of Tasmania raising the whole unpleasant issue again and threatening not to appoint the ALP's chosen nominee for the Senate vacancy which will be caused by Senator Grimes's imminent resignation.

I suggest that Premier Gray has made this threat because he does not like the candidate. In fact, he says that he does not like the candidate. It is quite possible that the Cain Labor Government did not like either of the candidates for the two Victorian casual vacancies that arose last year. After all, one was a Liberal and the other was an Australian Democrat. It is perfectly acceptable to speculate that perhaps Premier Cain did not have a particular fondness for either of those individuals, but he did not come even close to suggesting that he was prepared to reject either of those nominated candidates. In my own case, I would have to say that there was certainly precious little love lost between the Dunstan Labor Government in 1966 and the Liberal Movement whose candidate, Senator Steele Hall was elected to the Senate, yet it was prepared to follow the example of the 1967 Hannaford replacement precedent in putting me in as the casual vacancy. So it is difficult to see what sort of game Mr Gray is trying to play and who he is trying to please.

Senator Sanders —Tanglefoot Gray may not even know what he is doing.

Senator HAINES —Senator Sanders, who comes from Tasmania, probably knows more about Mr Gray's behavioural patterns than I do and I do not wish to comment further. Certainly it is patently apparent that he has been in a state of considerable uncertainty for some time now. He is uncertain whether to hang on to Premier Joh and emulate him and his record, and he is uncertain whether to support his existing Federal Parliamentary leader. He is uncertain about everything except that he does not want to follow the convention that was followed until 1975 and which was endorsed by the Australian people when changing their Constitution in 1977.

If it is Mr Gray's intention to please anybody at all, I would say that he has failed significantly although, for all I know, he may have the support of the Premier of Queensland, for whom constitutional proprieties and conventions are irrelevant. Certainly the Federal parliamentary leadership of his own Party appears to have abandoned him, although I understand that Senator Chaney flirted with the idea of supporting what he was doing for a moment or two. The Government has condemned him, quite rightly, and we have moved this motion to demonstrate the strength of our opposition to the suggestion.

We are concerned about his threatened action and the damage it would undoubtedly do if he were to carry it out. There has already been speculation about what could amount to tit for tat; mere retribution sometime down the track if somebody chooses to follow his precedent. It is possible, of course, that other State governments could follow his lead and in doing so turn on its head the preferred behaviour that the Australian people expressed in their support of the Fraser Government's referendum proposal in 1977.

Mr Gray is trying to take advantage of a technical loophole in the 1977 amendments to the Constitution. While those amendments make it quite clear that a replacement senator must come from the political party from which the retiring, resigning or deceased senator came, the Constitution does not make it clear that the senator has to be an appointee of that political party. It does make it clear, however, that if the State government appointee changes party prior to taking his or her seat, the casual vacancy has to be filled again. Essentially, Mr Gray is trying to play some sort of elaborate game of bluff, because all he can succeed in doing is delaying the appointment.

Senator Watson —It is just embarrassing the Labor Party.

Senator HAINES —Indeed, this appears to be the purpose of the exercise. I would say that his behaviour is probably embarrassing Senator Watson's Party at least as much, but I take Senator Watson's point. A briefing document from Mr Gray's office which fell off the back of the proverbial truck suggested relevant points for any Press conference or interviews on the Senate replacement. These comments and suggestions were directed to the Premier in a briefing paper dated 9 March 1986, signed by somebody called Andrew. It does not say Andrew who; it just says Andrew. Among other things, he suggested that the Premier should make these sorts of comments:

This issue is really one about whether the ALP in Tasmania supports Mr Hawke's attempts to put Tasmanian timber workers out of a job or not.

It is really very simple:

If they-

that is, the Australian Labor Party-

do not support Mr Hawke they can put forward a nomination to replace Senator Grimes who opposes the legislation that would ultimately lock up a further 284,000 hectares of forest.

If they do support Mr Hawke, then they can continue to put forward Mr Devereux.

This is a very clear issue.

As far as Andrew was concerned, the Premier should make it quite clear that it was just not believable for Mr Batt and the Labor Opposition to say that they supported the timber industry, and then put forward in Parliament the name of a man who does not. The brief continues:

If they continue to do this, then all Tasmanians can see that Mr Batt and the Labor Opposition are powerless.

They are quite clearly controlled by a left-wing political machine that is pro-conservationist and against the interests of the Tasmanian worker.

Mr Batt and the opposition have the chance to prove they are not controlled by the faceless left-wing machine men.

Andrew recommended to Mr Gray:

The only other conclusion that can be drawn if they do continue to support Mr Devereux is that Mr Batt and the Opposition really do support the Prime Minister, and their claims to the contrary are just insincere words.

In other words, as Senator Watson said, it was supposed to be an attempt to embarrass the State Labor Government and to turn the Devereux situation--

Senator Watson —The Federal Labor Government, not the State.

Senator HAINES —Both, Senator Watson. It was an attempt, as this briefing paper said, to turn the Devereux situation into a test case for the Labor Party in Tasmania.

Senator Tate —Do you want to take up all my broadcast time?

Senator HAINES —I am sorry, I would hate to deprive Senator Tate of the opportunity to have his say. This briefing paper goes on at some length to tell the Premier how to cope with the constitutional issue. Apart from the fact that I find all of these things highly unconvincing, I suggest that no arguments could successfully disguise the fact that what Mr Gray is indulging in is naked political opportunism. I suggest in that regard that his actions be unanimously condemned by this chamber and that all senators support the motion calling not only for the convention which applied until 1975 to be adhered to but also for the changes to section 15 of the Constitution to be adhered to by Premier Gray and any other Premier faced with a similar situation.