Peter Costello wrote recently in The Sydney Morning Herald (14/3) proposal that in the “heady politics” of the Whitlam government, then Queensland premier Sir “Joh Bjelke-Petersen refused to accept Labor's nominee (Mal Colston) to fill the vacancy caused by the death of a sitting Labor senator”.
It is said that Sir Joh acted unconstitutionally or at least, in breach of the convention or practice of appointing a relacement from the same party. But if the practice of appointing a senator from the same party had in fact matured into a constitutional convention, Sir Joh observed it to the letter.
..Senator Bob Carr…
The way in which Senate vacancies are filled has been much in the news lately with the resignation of Senator Arbib and the Prime Minister's proposal that former New South Wales Premier Bob Carr fill the vacancy and become Foreign Minister.
…Senator Mal Colston…
The actual nomination was moved by the New South Wales leader of the opposition at a joint sitting of both houses of the New South Wales Parliament. It was passed without opposition. This appointment was in full compliance with the constitution.
But Sir Joh Bjelke-Peterson did not breach the practice or convention that the person appointed to fill a vacancy in the Senate come from the same party as the departing Senator. When the Queensland ALP proposed Mal Colston, a person not acceptable to Sir Joh, he asked for three names from whom he would make a choice. There was a precedent for this.
But the ALP insisted that Mal Colston be appointed. Sir Joh then chose Albert Field who was a member of the Labor Party. He was subsequently expelled from the party.
His appointment reduced the Labor vote by one, advantaging the Coalition in its decision to delay the passing of supply to the government until they advised a general election.
The constitution was amended in 1977 on a Coalition proposal and after a referendum. It now requires that any appointment to a Senate vacancy be from the same party as the departting senator. It also requires that the appointee continue to be a member of the party until taking his seat.
The ALP's nominee whom Sir Joh had refused to appoint, Mal Colston, was actually elected to the Senate in November 1975. But after the 1996 election, the Labor Party refused his request that they nominate him as Deputy President of the Senate.
The Coalition offered to support him, so he resigned from the Labor Party, took his seat as an independent and was elected Deputy President on the nomination of the Coalition. He subsequently sat as a "Queensland First" senator.
In 1997, he was charged with 28 counts of defrauding the Commonwealth by allegedly misusing his parliamentary travel allowance. The prosecution was abandoned when medical opinion was provided that the Senator, who was suffering from cancer, was unlikely to live long enough for a trial to be completed. He survived for six years, retiring from the Senate at the end of his term on 30 June 1999.