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Tuesday, 17 November 1964

The PRESIDENT - Is the honorable senator speaking to the point of order?

Senator Cohen - Yes. I ask you, Sir, to reject the point of order. It is astonishing that an honorable senator who is a Minister should be heard to say that the question of the election of a senator to fill a vacant position in the Senate is not a matter which the Senate can discuss. No constitutional point is involved. The Commonwealth Electoral Act deals with the procedure for the issue of writs for elections and for the conduct of elections. The Commonwealth Parliament is fully competent to deal with this matter, and certainly the Commonwealth Government has every right to make suggestions to the State of Western Australia and to the Governor of Western Australia.

When I have spoken to the substance of the matter of urgency it will be amply demonstrated that what the Opposition seeks is something which is within the competence of the Government.

Senator Murphy - Dealing with the point of order that has been taken, I should like to direct your attention, Sir, and the attention of honorable senators to other parts of the Constitution. I refer to section 15, which deals with the matter of casual vacancies. One passage reads as follows -

At the next general election of members of the House of Representatives, or at the next election of senators for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the date of his election until the expiration of the term.

That is a matter which would become important in this debate.

As well as that, I refer to the Constitution, section 9 of Part II - The Senate, which states -

The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.

This Parliament has made laws prescribing the method of choosing senators. Here is a question that arises under the Constitution and, under such law, it is a matter which intimately concerns the Senate. It is Senate business itself. No matter could concern the Senate more intimately than the constitution of the Senate itself, and how the Senate shall be composed. It is unthinkable that this is not a matter which is properly the concern of the Senate. I ask that the objection of the Minister be overruled.

Senator McKellar - Mr. President, last evening I had a quick look at the Commonwealth Electoral Act and I feel that the duties that have been required of the Senate regarding the filling of a casual vacancy have been fulfilled up to this point of time. The Electoral Act states the position regarding the filling of vacancies. This is a matter for the Government concerned and' not, as I said, a matter for the Senate at this time. Although I do not have the Electoral Act before me at the moment to refresh my memory, I strongly support the point of order raised by the Minister for Customs and Excise.

Senator McKenna - I think there is confusion in the mind of the Minister foi Customs and Excise who took the point of order. He relied for the fact that the Senate may not discuss a particular matter upon a paragraph of section 9 of Part II of the Constitution which reads -

The Parliament of a State may make laws for determining the times and places of elections of senators for the State.

I think, in fact, most of the State Parliaments have passed such laws. I did investigate this matter some considerable time ago. What I point out to the Minister is that the Opposition in seeking to raise this urgency matter today, is not seeking to pass any laws or to usurp the functions of a State or the power that is conferred upon a State. The matter of urgency is not a provision to pass a law to interfere with a State function. What is proposed is a matter for discussion, namely -

The need for immediate action to enable the vacancy in the Senate caused by the death of Senator Vincent to be filled at the election for Senators to be held in the State of Western Australia on the 5th day of December next.

Senator Anderson - Surely that is a matter of time and place?

Senator Henty - This is a matter for the State.

Senator McKenna - Suppose it is a matter for the State to fix the time and the place. The Opposition is pointing out the need for speed in this matter if the vacancy is to be filled at the Senate elections on 5th December.

There is a matter of great urgency here. Is the Minister asking the Senate to say that we should not discuss a matter concerning the filling of a vacancy in this chamber? That matter goes to the very root of democracy. The point at issue is whether the electors of Australia are to have a say as to who shall fill the casual vacancy or whether the Parliament of the State of Western Australia, or if it was not sitting then the Governor in Council of that State, will say who will fill the vacancy.

In raising this matter we are concerned about two things. There is the question of the constitutionality - and that does concern the Federal Parliament - of what is done because this will be open to attack if the opportunity to elect a senator by choice of the voters of Western Australia is not availed of when the opportunity offers. It may well be that the High Court of Aus tralia could decide, on an application to test the appointment either by the Parliament or by -the Governor in Council, that this opportunity is not availed of, or that the purported effort to fill the casual vacancy has been invalid. What a stupid position that would bring this Senate to. The Senate is asked to say at this stage that it is not to concern itself with a matter of that nature going to the very basis of the Constitution. As has been said, section 7 of Part II. of the Constitution provides that senators are to be chosen by the people. Those are the very words of the Constitution.

The Opposition raises the question as to the Constitution being observed in the letter and the spirit. That is the issue that is before the Senate in this proposal for discussion. Mr. President, if you were to uphold the point of order taken by the Minister, your ruling that this matter may not be discussed would be a most alarming and staggering one. That is the proposition before the Senate. That is the very proposition that the Minister put. I have only put it to you in those terms to show the absurd position to which you would reduce the Senate if you so ruled.

The PRESIDENT - As the Parliament of the State of Western Australia only is empowered under the Constitution to make laws for determining the times and places of election of Senators for that State, I rule the motion is not in order.

Debate interrupted.

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