[In this sixth instalment of his essay on the 1975 dismissal of the Whitlam government, John Paul examines the filling of the Senate seats made vacant by the appointment of NSW Senator Murphy to the high Court and the death of Queensland Senator Bert Millner]
The ACM Facebook critic of Sir John Kerr demonstrated his unfamiliarity with Australian political history when he singled out the appointment in 1975 of replacement Senators by the NSW Premier, Mr Tom Lewis, and the Queensland Premier, Mr Joh Bjelke-Petersen, as being “in clear contravention of well-established Westminster convention in Australia”. What he terms a Westminster convention was a purely local understanding dating from as recently as 1951.
In 1948 the Chifley Labor Government legislated to increase the House of Representatives’ membership with a requisite corresponding increase in the Senate’s membership — a nexus the Constitution still enshrines — and to change the Senate’s electoral system from full preferential voting to proportional representation according to the method known as Single Transferable Vote (S.T.V.).
One of the blatant political purposes behind this legislation was to ensure that the newly created Senate places and those places filled by election in 1943 but subject to election in 1949 would be bound by an electoral system which would minimize Labor losses and Liberal and Country Party gains.
The newly elected Labor Senators when combined with those elected in 1946 would still give the Labor Party a working Senate majority even if the election for the House of Representatives resulted in Labor’s loss of office. This barely concealed manipulation had the intended result.
…results of changed electoral law …
The incoming Menzies-Fadden Government, elected on 10th December 1949 with a very comfortable majority, faced a hostile Senate. And that Labor-dominated Senate exploited its majority as ruthlessly as it dared!
Only with the double dissolution of 1951 was that Government able to gain a Senate majority, but the operation of proportional representation would ensure that the Senate would be more narrowly divided in party terms than had been the case before 1949.
As events proved, the Labor Party since 1951 has been unable to gain a Senate majority in its own right because the short term advantage it secured in 1949 has emerged as its long term nemesis — a case of poetic justice if ever there were one!Reflecting in 1977 on the performance of political parties in the Senate, a Labor sympathizing academic lawyer, Professor Geoffrey Sawer, remarked:
. . . when the Senate majority has been of a different party from that of the majority in the House of Representatives and consequent Ministry, the Senate has, irrespective of the party controlling it, been as obstructive as it dared, having regard to electoral prospects and the dangers of provoking a double dissolution. All parties have used the Senate when it suited them.
In 1951 the West Australian Liberal Premier, Sir Ross McLarty, was required to advise the Parliament to appoint someone to a casual Senate vacancy caused by the death of the ALP Senator Richard Nash.
He acknowledged that the Senate’s changed electoral system had eliminated the possibility of any one party regularly gaining a majority and had therefore made the filling of casual Senate vacancies more significant than had been the case from 1901 to 1949.
As he put the matter in correspondence with his fellow Premiers:
My opinion is that, in view of the fact that proportional representation is now the method of election to the Senate, a member of the same Party, nominated by the Executive of the Party, should be appointed when future vacancies arise through death or other causes.
Accordingly McLarty moved to have Senator Nash’s vacancy filled within the terms of that formula and this became the generally recognized method of dealing with casual Senate vacancies.
This did not alter the fact that the Constitution still vested State Parliaments with the ultimate authority and discretion to fill such vacancies. There was also the likelihood that the McLarty principle could be abused by Party Executives to sneak in a candidate of dubious worth whom they would normally be reluctant to include in a party ticket for a Senate election.
The phrase “other causes” also raised problems. If they were confined to serious illness or incapacity in the outgoing Senator, this would not be seen as an abuse of the principle. But this has not been consistently the case!
Tom Lewis clearly thought that the circumstances in which Lionel Murphy caused a Senate vacancy with his appointment to the High Court in February 1975 constituted such an abuse of principle. I can sympathize with this view up to a point.
I have consistently regarded Lionel Murphy’s appointment to the High Court as the most disgraceful ever made but I would question whether Lewis’s subsequent action was sensible.
Clearly Billy Snedden who then led the Federal Opposition as Liberal leader thought not and said so; but Lewis moved to appoint the Independent Cleaver Bunton to that vacancy.
Bunton’s appointment did not affect the denial of Supply later that year: in October-November he voted with Labor on the Appropriation Bills as he had done on most Government legislation.
The filling of the casual vacancy caused by the death of Senator Bert Milliner (ALP Queensland) raised other issues. The Premier, Joh Bjelke-Petersen, declared that he was not opposed in principle to Milliner’s vacancy being filled by a member of the ALP, but he strongly objected to the Queensland Executive’s nomination of Dr Malcolm Colston.
The reason for his objection was obscured at the time. It arose from a fire which some years earlier had caused a great deal of damage to a primary school where Colston was teaching. Colston was strongly suspected by the authorities of having been responsible, but they were less than confident that in having him prosecuted for arson they could establish his guilt beyond a reasonable doubt to the satisfaction of a jury.
But the cloud of suspicion continued to hover over him. Given Colston’s subsequent record as a Senator it seems ironical that the Queensland ALP should have gone so far out on a limb for him. The ultimate outcome in the filling of Senator Milliner’s vacancy could have been avoided if the Queensland Executive of the ALP had accepted the revival by Bjelke-Petersen of a precedent set by his predecessor Sir Frank Nicklin in 1962 and had allowed the Queensland Parliament to fill that vacancy from a list of three ALP nominees.
By insisting on the sole nomination of Colston, of all people, despite the Premier’s notorious antipathy for him, the Queensland ALP allowed Bjelke-Petersen to give Malcolm Fraser an anti-Whitlam replacement although at the time this bonus was far from being welcome to Fraser. Professor Geoffrey Sawer recounted:
The Premier nominated Mr A. P. Field, nominally a member of the ALP (though immediately and automatically disqualified as such member by allowing himself to be nominated) and he was elected in a division in which the Liberal ministers in the cabinet voted against the Premier.
The action of the ALP on this occasion, though humanly understandable, was a disastrous error of judgment, and the operative cause for the removal of the Whitlam government in the following November. It was far more important in 1975 than it had been in 1962 that the whim of the Country Party leader . . . should be satisfied.
As it happened Field did not vote on the Appropriation Bills. He absented himself from the Senate when his election was challenged in the High Court, not because the Queensland Parliament’s procedure in electing him was subject to a constitutional challenge but because it was claimed that, unbeknown to the Queensland Government, Field at the time of his election was still holding an office of profit under the Crown.
It follows that there was no constitutional warrant for challenging the composition of the Senate when the remaining Senators were required to vote on the Appropriation Bills.
The Whitlam Government did not even contemplate a High Court challenge to that interpretation of Section 53 on which the Senate acted in respect of his Government’s Appropriation Bills.
In Victoria v. The Commonwealth and Connor (or the P.M.A case) a majority of the High Court (Barwick C.J., Gibbs, Stephen and Mason JJ.) had recently defined the powers of the Senate in Section 53 so unambiguously in favour of that long accepted interpretation that such a challenge was bound to fail.
(The remaining members of the High Court, McTiernan and Jacobs JJ., did not rule on that section.) Nor did that Government risk challenging the constitutional standing of the Senate’s composition