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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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There was a brief controversy, in the course of which Kerr decided n o t t o proceed. One reason was a concern that Labor would lose the seat in a by-election held so soon a f t e r an election. There were some grounds for fearing a n electorate’s w r a t h a t a by-election not seen a s j u s t i f i a b l e in public i n t e r e s t t e r m s. S u c h h a d been t h e f a t e of t h e L i b e r a l P a r t y in the Queensland seat of Ryan after former Defence minister, John Moore, resigned in February, 2001 after losing his portfolio in J a n u a r y, 2 0 0 1. L a t e r, in 2002 Labor lost the New S o u t h Wales seat of Cunningham when Defence spokesman and former Speaker of t h e House of Representatives (1993–96), Stephen Martin, resigned in August. 1 These instances n o t w i t h s t a n d i n g, i t is relatively r a r e for House of Representatives seats to change hands at by-elections. Since May, 1977 this has occurred on eight occasions out of 39. In one of these, the Liberal Party claimed a seat previously held by the National Party (Groom, Qld, 1988). In another two cases the victors were, respectively, a local independent ( W i l l s, V i c t o r i a, 1 9 9 2 ) and a Green (Cunningham, NSW, 2002). In these two instances, and two others, the seat was eventually reclaimed by the by-election loser.

While i t may be relatively r a r e for a House of Representatives s e a t t o change hands at a by-election, it is something which, since 1977, can never occur when a c a s u a l vacancy a r i s e s in the Senate for reasons either of d e a t h or resignation. H a d M r Kerr been Senator Kerr, i t is doubtful, though not impossible, that the controversy of early 2002 would have occurred. Indeed, some of the ambitious in the ALP might well have encouraged him to take his chances in the House of Assembly stakes whilst one of t h e m s e t t l e d s m o o t h l y o n t o t h e pinkish benches of the Senate chamber in Parliament House, Canberra, without any of the indignities entailed in having to seek the support of the electors for a place in the national legislature.

Filling casual vacancies: the 1977 referendum The reason for this situation lies in one of three alterations to the Constitution approved at referendum in May, 1977 by majorities in all six States and with a n a t i o n a l m a j o r i t y o f nearly t h r e e a n d a half million votes. A new section 15 provided that henceforth a State Parliament, in filling a casual vacancy, should be l i m i t e d in its choice to the nominee of the p a r t y (or the successor p a r t y where t h e r e h a d been o r g a n i s a t i o n a l c h a n g e ) from which the former S e n a t o r h a d come. Moreover, the new Senator would i n h e r i t t h e e n t i r e balance of t h e term of the predecessor.

–  –  –

Casual vacancies since the 1977 referendum The new s. 15 (and comparable provision for Territory Senators) h a s been anything but dormant. Indeed, it has had a major impact on the composition of the Senate — an impact which reflects adversely on the vital role which it plays in the Parliament of Australia. In the present Senate, prior to changeover on 1 July, 2005, there are no fewer than 31 of the 76 Senators who have entered under the auspices of the new s. 15 (or its Territory equivalent).

A small number of these entered to complete the remaining few months of a r e t i r i n g Senator’s t e r m before commencing a t e r m for which they h a d been elected. Most, however, arrived without the blessing of the electors of the State or Territory which they represent at either a periodical or, less likely, a general election of Senators following a simultaneous dissolution of both Houses under s.

57. (By contrast, only 18 of the 150 members – 12 per cent – of the House of Representatives dissolved in 2004 entered by way of by-election: the cases are not comparable because, by definition, these members could only take t h e i r s e a t s after facing the electors.) In the Senate’s entire history there have been 126 casual vacancies; 59 of these have occurred since the 1977 change to the Constitution. Of these 59, only four were occasioned by death. In the previous 77 years there were 67 c a s u a l vacancies; 46 of these were the consequence of d e a t h. To some extent these figures may be explained by successive expansions of the Senate taking effect at the 1949, 1975 and 1984 elections respectively. But the scale and character of the change h a s been mainly the consequence of the 1977 a l t e r a t i o n to t h e C o n s t i t u t i o n, combined w i t h the generosity of the superannuation scheme introduced by the Whitlam Government and operating until 2004. 2 In the House of Representatives, there have been 135 by-elections occasioned by death or resignation. Only 39 of these have occurred since 1977. Of these 39, only five have been a consequence of death. Previously most by-elections were the result of death (62 deaths; 34 resignations).

On a pro-rata basis, resignations from the Senate now run at almost three times the rate of those from the House. Included in this number are some cases of clear manipulation of the 1977 scheme. Senator Kay Denman (ALP, Tas), who leaves the Senate on 30 June, 2005, has had virtually twelve years in the chamber although she faced the electors of Tasmania but once, in 1998. Her good fortune stemmed from the decision of Senator the Honourable Michael Tate (now Father the Honourable Dr Michael Tate) to resign, after only five days into a new term in 1993, in order to take appointments as Ambassador to both the Netherlands and the Holy See. Former South Australian Liberal leader John Olsen came and went from the Senate during the early 1990s without ever meeting the electors.

Belinda Neal (ALP, NSW) is another whose time in the Senate was unsullied by any visit to the polls. She was, however, defeated in attempting to win a House of Representatives seat.

The Senate’s elective character vital to its legitimacy Why s h o u l d t h i s s i t u a t i o n be a m a t t e r o f concern? The reasons fall into two categories. The f i r s t, and i m m e d i a t e, category relates to the i n t e g r i t y a n d legitimacy of the Parliament and, in particular, the Senate. Any dilution of the Senate’s elective quality c a s t s a shadow upon the a u t h o r i t y w i t h which i t performs i t s extensive and comprehensive responsibilities in legislative a n d other parliamentary processes. The second set of reasons is what this course of events d e m o n s t r a t e s about not only the dangers of tinkering w i t h t h e Constitution, but also the capacity to do so effectively.

In general, it is a fundamental principle in Australia that membership of a House of P a r l i a m e n t or a legislative body should be accomplished t h r o u g h popular (democratic) election. This principle has h a d especial significance f o r t h e A u s t r a l i a n S e n a t e. T h e U n i t e d S t a t e s c o u n t e r p a r t aside, few other second Chambers can rival the Senate’s powers.

These powers have been v a l i d a t e d, l e g i t i m i s e d and reinforced by t h e f a c t that the Senate has always been, from its inception, an elected House. It i s, i n fact, the first second Chamber in the world to be elected on the same franchise as the other Chamber (in this case, the House of Representatives); since 1903 it has, like the House, been elected on the basis of a full adult franchise. From its e a r l i e s t d a y s t h e S e n a t e h a s p l a y e d a n i m p o r t a n t r o l e in t h e P a r l i a m e n t, a n d t h a t r o l e h a s grown and developed s i n c e i n t r o d u c t i o n a t the 1949 elections of proportional representation. T o a g r e a t e x t e n t, w h e n i t is s a i d t h a t n a t i o n a l governments in A u s t r a l i a are responsible to P a r l i a m e n t, i t is to the Senate’s contribution and achievement to which the observer must look for evidence t o sustain the proposition.

The Senate’s authority to fulfil its role under the Constitution thus has two foundations. The first is that it is an elected House. The second is that, because of proportional representation, its composition closely reflects electoral opinion (indeed, more so than the House of Representatives) and thereby enhances the representivity of the Parliament as a whole. 3 I t follows t h a t anything which weakens the elective foundations of t h e Senate potentially weakens the P a r l i a m e n t and i t s a u t h o r i t y to hold governments in Australia to account. This is the defining deficiency of the new s.

15 as it has operated in practice. The deficiency is aggravated not just because casual vacancies are filled by selection rather than election, as has always been the case, essentially for p r a c t i c a l reasons, but because nomination is t o t a l l y controlled by p o l i t i c a l p a r t i e s. There is virtually no avenue of escape. The p r e v i o u s s y s t e m a t l e a s t e n s u r e d t h a t t h e f i l l i n g o f a vacancy was r e m i t t e d t o the electors at the earliest subsequent opportunity.

A second, subsidiary deficiency in the new s. 15 is t h a t i t o f t e n a u g m e n t s the advantage of incumbency (recognising that incumbency is not invariably a n advantage). This advantage is seen very clearly among the cross-bench parties. It is perhaps most visible, ironically, in the case of the Australian Democrats, who hardly wince when i t comes to turnover of p a r l i a m e n t a r y representation by means of p a r t y selection r a t h e r t h a n popular election. Of the 26 A u s t r a l i a n Democrat Senators in the Senate since 1977, no fewer t h a n eight have f i r s t entered via s. 15, seven before winning the support of electors at the polls. This number includes former p a r t y leaders Janine Haines, Janet Powell, Meg Lees, Natasha Stott-Despoja and Andrew Bartlett.

New section 15: the Constitution’s “most prolix, legalistic and confusing section” The second group of reasons for interest in the fate of the new s. 15 is what it tells us about altering the C o n s t i t u t i o n. The m o s t eminent student of t h e A u s t r a l i a n P a r l i a m e n t, Professor Gordon Reid, l a t e r Governor of Western A u s t r a l i a (1984–89), s a i d i t all when he wrote t h a t the “seemingly simple

change” in 1977:

“…..replaced the original and succinct s. 15 w i t h t h e C o n s t i t u t i o n ’ s m o s t prolix, legalistic and confusing provision. Ironically, the one-and-a-half pages of the new s. 15 lacked clarity, a s was d e m o n s t r a t e d w h e n f i r s t i t was needed”.

The new s. 15 was first activated when the Parliament of South Australia h a d to replace former Liberal Movement Senator (and former S t a t e L i b e r a l Premier) Steele Hall. Senator Hall had resigned to contest a seat in the House of Representatives f o r t h e L i b e r a l P a r t y, to which he h a d returned. The L i b e r a l Movement had been dissolved, some of its remnants rejoining the Liberal Party, others heading for the newly-formed Australian Democrats founded by L i b e r a l renegade Don Chipp. The l a t t e r was deemed to be the successor o r g a n i s a t i o n, and the Senate place went to Janine Haines, who h a d been on the L i b e r a l Movement ticket at the time of Steele Hall’s election in 1975, rather than to the nominee of the Liberal Party.

Reid pointed out t h a t the new s. 15 h a s “the effect of l i m i t i n g t h e discretion of S t a t e P a r l i a m e n t s and S t a t e Governments in filling c a s u a l vacancies”. This observation raises an important but unresolved question about the new s. 15 — namely, is a State Parliament necessarily compelled to endorse the nominee of the political party to which the previous Senator belonged?

In 1987, when the ALP in Tasmania proposed J G Devereux as successor t o Senator Don Grimes on his appointment as Ambassador to the Netherlands, the Tasmanian Parliament, at the behest of Liberal Premier Robin Gray, voted down the nomination on the ground that the nominee would not represent T a s m a n i a properly because of his views on environmental and conservation questions.

Regrettably, the 1987 double dissolution elections intervened before events h a d run their full course, and Devereux went to the Senate with the blessing of t h e electors. He subsequently left the ALP and s a t a s an Independent, eventually resigning to contest a seat in the House of Representatives.

Did the Constitution need a new section 15?

The short history of the 1977 change: The i m p o v e r i s h e d d r a f t s m a n s h i p o f n e w s.

15 is only one side of the constitutional aspect. The other side is how necessary was amendment in the f i r s t place? Were the grounds which m o t i v a t e d i t s conception and presentation to the electors a sufficient justification?

The i m m e d i a t e cause of the change was the controversies over c a s u a l vacancies in 1975, the last year of the Whitlam Government. The first centred on replacement of Senator Lionel M u r p h y, f o l l o w i n g h i s a p p o i n t m e n t t o t h e H i g h Court, by Cleaver Bunton, a leading local government figure in New South Wales.

Bunton was nominated by new New South Wales Premier, Tom Lewis. Shortly afterwards the Queensland Legislative Assembly (the only House in that State’s u n i c a m e r a l P a r l i a m e n t ), a t t h e i n s t a n c e o f N a t i o n a l P a r t y Premier Joh BjelkePetersen, and in the face of opposition from Liberal P a r t y m i n i s t e r s in h i s government, selected Pat Field to replace the deceased Senator B e r t M i l l i n e r in preference to Dr Mal Colston, the nominee of the ALP.

I n t h i s context t h e B u n t o n n o m i n a t i o n is of m o r e i n t e r e s t f o r i t was, in some considerable measure, a self-inflicted wound with some relevant antecedent events. There had been several occasions previously when parliamentarians h a d gone to the bench of the High Court. In all but two such cases the appointment was followed by a by-election, which t h u s places a measure of discipline on governments making such appointments.

The f i r s t e x c e p t i o n was O’Connor, a S e n a t o r. H e w a s replaced by a n o t h e r protectionist from New South Wales, who served a few days before the vacancy came before the electors at the 1903 federal elections. The interim Senator w a s not a c a n d i d a t e a t those elections, and in f a c t returned to the Legislative Council of New South Wales once his Senate membership lapsed. The o t h e r exception was John Latham, who left the House of Representatives at the 1934 elections in the expectation of appointment as Chief Justice when a vacancy in t h a t o f f i c e c a m e t o p a s s, a s i t eventually did a f t e r some delay the following year.

When a vacancy arose in the Court in 1972 there was reportedly a general inclination t h a t i t should be filled by another former Attorney-General, t h e M i n i s t e r for Foreign A f f a i r s, Nigel Bowen. The t i m e s were not, however, propitious. Bowen stayed in the House of Representatives and the place on t h e Court went to Anthony Mason, a member of the Court of Appeal in New S o u t h W a l e s a n d a f o r m e r C o m m o n w e a l t h Solicitor-General. The r e s t, a s they say, i s history. (Bowen himself eventually went to the NSW Court of Appeal in 1973, and later became t h e f i r s t C h i e f J u d g e of the Federal Court; he was succeeded a s member for Parramatta by Phillip Ruddock.)4 The circumspection of the McMahon Government m i g h t well have been emulated by the W h i t l a m Government in 1975. According to Tom Uren, t h e

Murphy appointment:

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