28th Parliament · 2nd Session
The PRESIDENT (Senator the Hon. Sir Magnus Cormack) took the chair at 10.59 a.m., and read prayers.
– by leave- Mr President, the Government has been informed that the state memorial service for the late President Georges Pompidou will be held at 1 1 a.m. on Saturday, 6 April, at Notre Dame De Paris. I rise now to inform the Parliament that Australia will be represented at the service by His Excellency the Governor-General. His Excellency will leave for Paris today and will return to Australia as soon as possible after the service.
Let me say at the outset that any differences we might have with the French Government are transcended by this tragic event which has befallen the French people. On such occasions we remember and reflect on the traditional and strong ties we have with France: Our common values, our democratic way of life and our respect for and affinities with the civilisation and cultural heritage that is France. All these things come to mind as we share with the French Government and people a common sorrow at the passing of a most distinguished world leader.
-by leave- The Opposition joins with the Government in the expressions of regret which the Minister for Foreign Affairs, Senator Willesee, has just stated to the Senate. We acknowledge and express the thought that it is entirely appropriate that the Governor-General should represent Australia at the service on Saturday next. The President of France was a distinguished world figure and contributed much to the development of France’s fortunes in recent years. The Opposition associates itself with what the Minister for Foreign Affairs has stated.
– by leave- The Australian Country Party would like to be associated with the remarks made by the Minister for Foreign Affairs (Senator Willesee) and the Deputy Leader of the Opposition (Senator Greenwood).
– (Victoria- Leader of the Australian Democratic Labor Party)- by leave- I desire, on behalf of the Democratic Labor Party, to be associated with the statement of condolence to the French Government. I met M. Pompidou in France 2 years ago. He was a man of great personal charm and obviously of very great ability. He piloted his country through a period of considerable difficulty following the retirement of the late General Charles de Gaulle. France and the world generally owe a great debt of gratitude for the degree of stability he brought to that great country. We associate ourselves with the motion.
– I present the following petition from 52 citizens of Australia:
The the Honourable the President and Members of the Senate in Parliament assembled. The Petition of the Undersigned respectfully sheweth-
That whereas our constitutional parliamentary democracy was clearly developed as a Federation to preserve for all time to the Australian people their cherished right to live as free men and women, enjoying complete liberty of worship, assembly, speech, movement and the communication of knowledge and information,
And whereas our existing Australian Flag and our national anthem, ‘God Save The Queen’, are perpetual reminders of these hard-won freedoms and of the wise British principle of the division of power, so well reflected in our own Australian Constitution with its careful separation of powers as between the Crown and Commonwealth Parliament, the Senate, the State Parliaments, the GovernorGeneral and State Governors, and the Independent Courts of Justice,
And whereas all such rights, liberties, heritage, advancement and prosperity, etc., are of no avail if our Armed Forces are unprepared or incapable of repelling invasion of our shores or withstanding other military threats.
So therefor must all these things be accorded the highest national concern and priority.
Your Petitioners most humbly pray that the Senate, in Parliament assembled, will take the most urgent steps to ensure-
The most rapid, efficient and largest possible expansion of all branches of our Defence Forces, and greatest possible strengthening and extending of defence treaties and security arrangements with our traditional friends and allies.
The right of every Australian citizen to vote at a National Referendum or Senate or Federal Elections for the retention of our present Australian Flag and equally of our national anthem, ‘God Save The Queen’, before any government or other body can attempt to substitute either a new flag or anthem, and a similar voting right for the choice of any official National Song to play on international occasions.
And your Petitioners as in duty bound will ever pray.
Petition received and read.
– I give notice that, at the next sitting, I shall move:
That the Senate approves of the redistribution of the State of Western Australia into Electoral Divisions as proposed by Messrs B. S. Nicholls, W. G. Henderson and J. W. Robson, the Commissioners appointed for the purpose of redistributing the said State into Divisions, in their Report laid before the Senate on 1 2 March 1 974, and that the names of the Divisions suggested in the Report, and indicated in the map referred to therein, be adopted, except that the name of Tangney’ be substituted for ‘O ‘Conner’.
– I ask the AttorneyGeneral: Did he or his staff or advisers draft the letter from Senator Gair to the President which the President read to the Senate yesterday? If so, why did the letter not contain a statement of Senator Gair’s resignation as both the Prime Minister and Senator Gair publicly indicated on Tuesday was anticipated?
-I think that Senator Gair indicated that the communication which he sent to the President was something which was at least edited by him, added to by him, and his document. As for what advice or other matters that have been given in relation to that, I do not think it is a matter which is the business of the honourable senator to ask me.
– I seek leave to ask a supplementary question.
– I take a point of order. Is not this matter anticipating an item that is on the notice paper? I had a question ruled out of order the other day and it was almost identical to the question which is coming now.
– As I see it, it is not anticipating any matter on the notice paper. The first item on the notice paper simply says:
– Place in the SenateStatement by the President: Consideration.
It is not a formal motion. I think the question is perfectly in order. However, this is rather an arcane point. I should like to take some advice from the Clerk. The Clerk advises me that my attitude is correct, Senator Poyser.
– Yes, Senator Greenwood.
– I ask the AttorneyGeneral: Did he, his staff or his advisers draft the letter which Senator Gair gave to the President?
– I have already informed the honourable senator–
– You are bound to give us the information.
-I thank Senator Wright for his interjection because it is about time some of this was set straight. Opposition Senators apparently think that they can come in here and ask questions on any subject matter at all; about what advice has been given by an AttorneyGeneral or a Minister, about what their staff have done- and almost every time somebody goes to the toilet. This is not the object of question time in Parliament. As for the suggestion that a Minister is bound to give an answer, I say that he is not bound to give an answer. I have indicated already that it is none of Senator Greenwood’s business what advice or assistance was given by my staff or myself. I have indicated that the person concerned, the Ambassador, has said that the document that he put in to the President was his document, edited, added to, amended and so forth by him. How it came into existence is none of the honourable senator’s business.
– I ask the Leader of the Government: Can he say when Senator Gair accepted the terms and conditions of his appointment? On what day was he informed of those terms and conditions? On what day was the first payment made to Senator Gair in his capacity as Ambassador?
– An opinion has already been put before the Senate on this matter. The honourable senator is obviously asking questions which relate to the matter which is on the notice paper, order of the day No. 1 . I simply ask him to put the question on notice.
– My question is directed to the Attorney-General and it refers to a statement which I heard not long ago made by the Prime Minister that Senator Gair resigned on 1 4 March, or Senator Gair ceased to be a senator on 14 March. The Prime Minister added that Senator Murphy, knowing that in the view of the Government Senator Gair was no longer a senator, endeavoured to dissuade Senator Gair from coming into the Senate. Senator Gair insisted. He participated in the proceedings. He voted in 9 divisions. He spoke on 2 occasions. All the time, the Prime Minister said, Senator Murphy knew that Senator Gair was not a Senator. This obviously means that Senator Murphy -
– Order! Senator McManus, you have made your preliminary statement and you cannot debate the matter. Ask the question.
– In view of the seriousness of this charge made against the AttorneyGeneral by the Prime Minister, will the AttorneyGeneral adopt the immemorial practice of Ministers in such cases and resign his portfolio until the matter has been determined? I offer the Attorney-General the co-operation of my Party in adjourning the Senate so that he may see the Prime Minister and consult him in regard to his position and inform us what he proposes to do about these grave charges.
– Order! I will not allow any further statement to be made.
-There is no need for the honourable senator to make his great offers. I have consulted with the Prime Minister about the various matters here. I think that the position is reasonably clear, as I have indicated. As from not 14 March but 21 March- when, as I have already said, the matter came before the Executive Council and thereafter Senator Gair was informed of it-I did not expect or understand that Senator Gair would sit in the Senate again. I think that the Prime Minister has already indicated elsewhere that I took that view and expressed it as to Senator Gair’s sitting in the Senate on Tuesday of this week. It is not a case of any 9 divisions. If the honourable senator thought that 1 was in some way pleased by the vote being against me on that occasion on Tuesday, I assure him that I was not. The suggestions that the honourable senator makes have no basis whatever. The person to whom he refers is a member of his own Party.
– Not now.
– The honourable senator says: ‘Not now’. But he refers to a member of and, as I understand it, the founder of his own Party, a person who has had considerable experience in parliamentary affairs. I am not responsible for the course of action which that person took on Tuesday.
-My question is directed to the Minister for the Media. I refer to a question I asked him on 5 March concerning the dismissal of one of the Australian Broadcasting Commissions ‘s parliamentary announcers, Mr John Flower. In reply to that question the Minister said that he would advise me about negotiations that were to take place between the Chairman of the Australian Broadcasting Commission and the Australian Broadcasting Commission Staff Association. Is he now in a position to inform me as to the result of those negotiations? Can he inform me as to the grounds for Mr Flower’s dismissal and whether Mr Flower has been informed by the management as to these grounds? Has the management made available to the Staff Association the tape recording concerned in this matter; and, if not, what are its reasons for not doing so?
– I remember well Senator James McClelland asking me the question on 5 March last and my undertaking to discuss the matter with the Chairman of the Australian Broadcasting Commission. On Friday last I met with the commissioners of the ABC in Adelaide and, among other matters, raised with them Mr Flower’s case- Mr Flower, of course, having been an announcer in the temporary employ of the Commission. I received from the Chairman of the Commission, Professor Downing, an assurance that the Commission had taken into consideration all representations made to the Commission on Mr Flower’s behalf by the industrial union covering his calling, namely, the ABC Staff Association. I particularly asked Professor Downing whether the Commission had given consideration to all aspects of Mr Flower’s case. I was told that it had and that after a review of the facts the Commission had upheld the decision not to continue Mr Flower’s employment. Professor Downing told me that the Commission considered that in its opinion no injustice had been done and that the decision had been properly made in the first instance.
I asked the Commission whether it was intended to make public the reasons for Mr Flower’s dismissal, but I was told by the Commission that it felt that this would create a bad industrial precedent. I am assured that Mr Flower was told by the Assistant Manager of the ABC’s Canberra office that the major reason for his dismissal was that his work was not up to the required standards of the Commission.
I am advised by the Commission that the tape to which the honourable senator has referred was not made available to the ABC Staff Association purely and simply because the tape has not been retained. In any event, I am assured by Professor Downing that termination of Mr Flower’s services was not the result of this particular incident in isolation. The Chairman of the Commission has assured me that the decision of the Commission not to reverse the decision to terminate Mr Flower’s services was made as a result of a review of several incidents which I am given to understand occurred over a period of time, and that in reaching its conclusion the Commission had before it a record of Mr Flower’s employment with the Commission, a report from the ABC’s Canberra manager, copies of a letter writtern by Mr Flower himself to the Chairman of the ABC, and a letter written to the ABC’s General Manager by the ABC Staff Association. I am advised by Professor Downing that the Commission gave the matter very great and detailed consideration and, after reviewing all the circumstances, decided not to reverse the earlier decision.
– Order! In accordance with normal courtesy that the Senate from time to time extends to visitors to this Parliament, I wish to advise honourable senators of the fact that sitting in the President’s Gallery is Mr Maori Kiki who is the Minister of Foreign Affairs and Defence in the new nation of Papua New Guinea.
– My question which is directed to you, Mr President, refers to Senator Gair’s statement in his letter that he endeavoured to communicate with you on 2 April to inform you of his intentions. Can you advise the Senate how many times Senator Gair tried to communicate with you through your staff and whether you were informed that Senator Gair wished to see you?
– I have looked at the first paragraph of Senator Gair’s letter and I prefer to disregard it. All I can say in answer to the honourable senator is that when the Senate is sitting I am never more than 100 feet from this chamber, except occasionally when I leave this area to discuss with Mr Speaker matters of mutual concern. In those circumstances, upon arrival in Mr Speaker’s office I telephone my staff advising that I am there. If I am delayed by discussions with Mr Speaker I contact my office several times to ensure that no honourable senator has expressed a wish to see me. On Tuesday I was in Mr Speaker’s office for a period of about 40 minutes.
– I ask the Minister for Primary Industry: In view of the report in today’s Canberra Times’ that legislation will soon be introduced by the Minister for the Capital Territory to cover egg quotas in the Australian Capital Territory, can the Minister give an assurance to the Australian egg producing industry that the legislation will be such as will fully protect all Australian egg producers from the possibility of the Australian Capital Territory becoming an avenue to circumvent the quota system agreed to by the State governments?
– There is a long history in relation to this matter involving the States. The previous Austraiian Government reached agreement on the production of eggs in Australia under a quota system. There was considerable opposition and disagreement in regard to the quota which was allotted to the Australian Capital Territory. I can assure the Senate that the Minister for the Capital Territory has no intention of breaking the agreement which has been entered into. Legislation will be introduced to cover the production of eggs in the Australian Capital Territory in accordance with the agreement that was reached by the Australian Agricultural Council.
– I ask the AttorneyGeneral: Did Senator Gair discuss with him at any time his intention to resign from the Senate as a result of his appointment as Ambassador designate in Ireland? If so, when did these discussions take place? Did Senator Gair inform him on what day he proposed to resign?
-I do not propose to answer the honourable senator’s question.
– I direct a question to the Minister for Repatriation. Since the establishment of the School of Medicine at the Flinders University of South Australia, has any action been taken to enable a wider use of facilities at the Repatriation General Hospital, Daw Park, by medical students, in view of its proximity to Flinders University?
– The answer to the honourable senator’s questions is yes. Since the establishment of the faculty there have been discussions with the dean of the medical faculty at Flinders University. As a result of these discussions, it has now been arranged that medical students will have access to patients in the repatriation hospitals in their first year of training, rather than, as at the present time, in their third year of training. Secondly, they have been given access to the rehabilitation facilities of the hospital and this would include a number of beds in the rehabilitation sector.
– Will the Attorney-General inform the Senate on what date the Government advised His Excellency, the Governor-General, to communicate with the State Governors proposing that the next Senate election be held on 18 May, as announced in both Houses of Parliament on 2 1 March last? Secondly, on what date did His Excellency communicate with the State Governors? Thirdly, did the communication to the Governor of Queensland refer to the existence, or even to the possibility, of an extra vacancy? Fourthly, if no reference was made to an extra vacancy, was this because there was clearly no vacancy existing or was it an attempt to conceal information from the State Governor? Fifthly, if the Attorney-General then considered, as he now claims he did, that a vacancy had been caused by a sitting senator’s self-disqualification, why did he, as the Commonwealth Crown law officer, not take whatever action was appropriate to have the President notify the Queensland State Governor that a vacancy had occurred?
-I do not know on what date the communications were sent. This is a matter which would come within the area of the Prime Minister. I can look it up for the honourable senator. As to the other matters, I do not think that it is profitable to go into the questions which are no doubt going to be discussed in some form or other and, we hope, in the appropriate forum. The honourable senator can just be assured that I did what was correct on all occasions.
– I direct a question to the Minister for the Media. Did the Australian Broadcasting Commission recently commence a new program entitled ‘Public Access’? Can the Minister say what form this program will take in the future and who or what groups will be appearing on it?
-About 12 months ago the British Broadcasting Corporation adopted a public access arrangement which has been very well received in the United Kingdom. Accordingly, the Australian Broadcasting Commission has given a lot of consideration to such programs and last night for the first time public access programs came to air in Australia. Two programs were put to air, one connected with freeway development and the other connected with people who are interested in a certain section of the arts. About 350 letters were received by the Commission from various organisations expressing interest in obtaining access to the public airwaves. About 150 applications have been received from a large crosssection of organisations throughout Australia. I understand that arrangements have already been made for about forty or fifty groups to have time made available to them by the Australian Broadcasting Commission.
– What sort of groups are they?
-A wide range of groups. One, for instance, is the Voluntary Euthanasia Society, another is a better hearing society, and I think another is a society connected with animals- groups of that nature. They mirror a cross-section of the Australian community. If the honourable senator saw the programs that went to air last night I am sure that he will agree with me that the venture looks like being very successful indeed.
– Will the Minister for Foreign Affairs advise the Senate of the date upon which Mr Brennan, Ambassador to Ireland, was advised of his appointment as Ambassador to Switzerland? When was the Government of Switzerland requested to approve the appointment? When was the Executive Council approval given to Mr Brennan ‘s appointment? Is Mr Brennan still Ambassador to Ireland? If so, when does he relinquish his appointment?
-I do not know the dates of that advice but I can find out. I am pretty sure that the Executive Council minute has not yet been put up. Did the last question ask about the date that he leaves Ireland?
– Is he still Ambassador?
-Yes, he is.
– In directing my question to the Attorney-General I refer him to an article titled ‘The night of the long prawns’ which appeared in the ‘Australian’. Will he take steps to investigate and ascertain whether a deliberate attempt was made to prevent Senator Gair not so much from informing the President of his intention to resign as from giving the President the information that he had vacated his seat? Will he also investigate the so-called manoeuvre to keep Senator Gair- or Mr Gair- otherwise entertained to the point of confusion so that he entered the Senate and voted without realising exactly what he was doing?
– I rise to a point of order. Is it right for a senator to cast aspersions on the ability of a senator to control his own actions? He said that Senator Gair had been brought to a point of confusion.
– I do not know whether it is Senator Georges ‘s phrase or the phrase of the Australian’ newspaper. Which is it?
– It is my phrase. I stand by it.
– All right. It is a question of the degree of aspersion. I do not think there is any point of order, but you were right to defend Senator Gair’s position.
– The honourable senator has referred to what was certainly an unedifying story, or rather a disgraceful episode. Perhaps the honourable senator who is alleged to have taken part in this despicable episode- Senator Maunsell- would care to inform us whether it is true.
-Did the AttorneyGeneral and the Leader of the Government in the Senate knowingly allow Senator Gair to take his seat in the Senate, vote in divisions of the Senate and accept emoluments as a senator without his taking action to inform the Senate, his Department or the Australian Treasury of the circumstances of Senator Gair’s appointment to the post of Ambassador? As a result of an answer that the Attorney-General has given this day, I ask: Is it a fact that it was only on Tuesday of this week that the Attorney-General advised Senator Gair not to take his seat in the Senate? Does the Attorney-General consider that this is a correct action by Australia’s chief law officer?
-Of course what I did was correct. I have informed the Senate about what happened at the Executive Council proceedings on 2 1 March. That was a Thursday. The honourable senator will recall that the Senate did not meet after that, that there was a break of some 10 days and we came back on the Tuesday. Even before we met on the Tuesday, not only was I aware, but I would imagine the whole Senate was aware- I think the President indicated that he might not have been officially aware, but the Prime Minister had announced it to the nationthat Senator Gair had been appointed as Ambassador. What happened was as much known to Senator Webster and to others as it was to me. It is absurd, all this nonsense and the suggestion whether I should allow him to come in. It had been announced that he had been appointed Ambassador to Ireland.
– It was your duty to inform us.
– Whatever was my duty I performed.
- Mr President, may I ask a supplementary question?
– I deprived you of the opportunity to ask a supplementary question yesterday. Yes, I will give you leave to ask a supplementary question.
-Thank you, Mr President. I ask the supplementary question because the Attorney-General did not answer my first one. I asked whether the Attorney-General knew prior to Tuesday of this week that Senator Gair had been appointed. Senator Gair had voted on earlier occasions. Did the Attorney-General knowingly allow Senator Gair to vote without informing this Senate that he had been appointed as Ambassador?
-I think that if the honourable senator would care to cast his mind over the advices that have been given in the matterand there were other advices given- he will see that the question relates to 2 1 March. While there might be some possibility as to an earlier matter, after 2 1 March the view was taken that a vacation occurred in his office. Whatever might have been done and could have been done or whether it was technically the right procedure or not to put a resignation in, the view taken on a close examination of the matter is that there is a vacation of office. If a resignation had been put in then, I suppose that no one would have cared much about it, and that could have happened. But it did not happen, and the question is when did the vacation of office take place under the Constitution. In the Government’s view it took place then- that at least by 21 March this vacation of office had occurred. Senator Webster is asking what should have happened from then on. One would expect and understand that Senator Gair would act in a certain way. I think that Senator Webster is familiar with the circumstance that Senator Gair’s appointment was publicly announced not only by himself but also by the Prime Minister of Australia early on Tuesday.
– My question, which is directed to the Attorney-General, is supplementary to the question asked a few moments ago by Senator Georges. I again draw the Minister’s attention to the article on page 1 of today’s ‘Australian’ which carries the heading ‘The night of the long prawns’. I remind the Minister that the substance of the article indicates that former Senator Gair was virtually held against his will by Senator Maunsell and other members of the Australian Country Party in the office occupied by Senator Maunsell. Can the Attorney-General inform the Parliament whether the former senator could possibly cast a valid vote in the division on Tuesday evening when, for all practical purposes, he was forced to enter the Senate under escort and left the chamber in the same manner?
-As I have indicated already, this disgraceful episode would be better explained by Senator Maunsell who is apparently so ashamed of his part in it that he has left the chamber.
– I rise on a point of order. Are the question and the answer consistent with standing order 418, which states that no statements which are offensive or reflect upon members of this place should be made? My submission is that this allegation is based upon a newspaper comment, which is as serious an imputation as any which can be made. My submission is that it is the sort of reflection which ought not to be allowed. If a senator wishes to make such an allegation the traditional forms of this Parliament should be availed of, because the matter affects the whole Senate.
- Mr President -
– Order! Senator Murphy, are you speaking to the point of order?
– Yes. I would agree with Senator Greenwood on one thing, and that is that the imputation in the story is of the most serious nature. It implies obstruction of and interference with the senator concerned. I agree that that is one of the most grave reflections which can be made. Senator Greenwood regards it as a serious imputation. So do 1. 1 would think that the Senate would. If it is correct, it is a disgraceful episode, and I suggest that Senator Maunsell ought to be answering whether it is correct.
– I deal with the point of order. The imputation is not against Senator Gair. The imputation is against Senator Maunsell. If he wishes, at an appropriate stage he can seek leave to make a statement. That stage would be at the end of question time.
– I ask a question of the Attorney-General. Last Tuesday, after advising Senator Gair not to enter the Senate, during the division why did the Attorney-General not advise the Senate that in his opinion there was a stranger in the Senate?
-The matter which affected Senator Gair was public knowledge and had been stated publicly. The position, as I would understand it, would be that Senator Gair had his duty, shall I call it, to perform or a course to follow. It was not my position to take certain action. His position had been publicly announced by the Prime Minister. It had been stated by Senator Gair. I took the action which I thought was appropriate in the matter, and I think that was the proper course for me to take, not some further course which Senator Townley suggested.
– I direct a question to the Attorney-General. As Attorney-General and as one who should know both the Standing Orders and the Constitution, at the time the AttorneyGeneral informed Senator Gair that he was not, in Senator Murphy’s view, a Senator, did the Attorney-General inform Senator Gair that he should not vote in this chamber?
– I have already indicated that something was said in the other chamber by the Prime Minister. I do not propose during this question time to go into the ins and outs of what I said to Senator Gair. I do not propose to be and I ought not to be led into that situation. This matter can be dealt with elsewhere.
– I address my question to you, Mr President. If the proposition in the question put by Senator Townley is correct, would it not have been the responsibility of the occupant of the chair, whoever he was, to notify the Senate that there was a stranger in the House and that the stranger should be removed?
- Senator Negus, if you had listened to yesterday’s debate or had read Hansard this morning you would have known or would have seen quite clearly thatI regarded Senator Gair as a member of the Senate and believed that he was entitled to enter into debates and to take part in the proceedings. That is the situation. It was not my function to discern whether Senator Gair was not a member of the Senate. I have made my position perfectly clear, namely that in the eyes of the President, who is responsible for the maintenance of the Standing Orders of this Senate, he was a senator.
- Mr President, I wish to ask a supplementary question. You say that in the eyes of the chair, Senator Gair was still a senator. But was it not a fact that it was publicly announced that he had been appointed Ambassador to Ireland and therefore that he was a stranger?
– Any senator or any member could be appointed by the Prime Minister to go and open a shire hall at Gunn’s Gully; but that would not deprive him of being a member or a senator.
– Will the Attorney-General inform the Senate of the method by which Senator Gair was made aware of His Excellency the Governor-General’s approval of the Government’s request for his assent to the appointment of Senator Gair as an ambassador? On what day was this done? By whom was it done? If it was not in writing, what was the authority of the person charged with conveying the verbal information to the senator? Were the same methods used to convey to Senator Gair the acceptance of him by the Irish Republic?
– Again this is a question which relates to the details of a matter which the Government would hope would be determined by the proper authority. I do not think it is convenient or sensible for these questions to be answered here.
– I direct my question to the Minister for the Media. What plans, if any, have been made for improvements of broadcasting reception in the Nhulunbuy/ Yirrkala area of the Northern Territory?
-This matter was raised recently with my Department by the parliamentary committee inquiring into Aboriginal affairs in the Northern Territory. I raised the matter with the Broadcasting Control Board, and arrangements have been made by the Board to establish a low power broadcasting station in that area. I am not able to provide the honourable senator with the exact details at the moment, but I can obtain them for him and I will have pleasure in giving them to him.
– I direct my question to you, Mr President. Is the Senate Hansard record of Tuesday 2 April correct in showing that you were in the Chair when Senator Gair voted in this chamber at approximately 10 p.m. on the Petroleum and Minerals Authority Bill? If so, is this not clear evidence of your unobstructed availability to Senator Gair on that day? Could you advise the Senate whether Senator Gair was paid as a senator and received the privileges of a senator up until yesterday?
– The record of the proceedings of the Senate is to be found in the Journals of the Senate, and Senator Gair’s name is in the Journals of the Senate as having voted on that Bill. That is the first matter. As to the second matter, I was present in the Chair and I saw Senator Gair in his place during the division. As to the third question, I never inquire into the private monetary affairs of honourable senators because that would be an impertinence on my part; but this morning, in view of the matters that are engaging the attention of the Senate at the present moment, I asked whether in fact Senator Gair’s proper emoluments under statute had been paid up until 3 1 March. I have not had that information, but I assume by virtue of the fact that no one in the Senate secretariat knew that Senator Gair was not a senator that the normal processes would have been applied, that is, with a warrant being sent to the Treasury and an automatic remission to his bank account of the emoluments to which he was entitled.
-My question is directed to the Minister for the Media. Has the Australian Broadcasting Commission been approached about the possibility of establishing the ABC orchestral studio and music complex within the general area of a performing arts centre in Brisbane? Can the Minister say what action has been taken on this proposal?
Senator DOUGLAS McCLELLANDShortly after I assumed this office the Professional Musicians Union of Australia made representations to the Australian Broadcasting Commission and to me for a new orchestral site in Brisbane. Recently the Australian Broadcasting Commission informed me that, in the absence of any firm decision by the Queensland Government on the establishment of a performing arts centre, the Commission could not delay any longer progress on the planning for an orchestral studio and music complex for the Queensland Symphony Orchestra which, I understand, is being planned for what is known as the Ferry Street site in Brisbane. All necessary approvals have been given to proceed with this project and it has been included in the ABC’s 1 974-75 works program. Apart from the fact that there has been no approval from the Queensland Government for the construction of a performing arts centre, the Commission advised me that it has received information that the land on which the ABC’s complex would be constructed within the general area of the performing arts centre its land owned by the Australian Post Office, that the Post Office itself is anxious to develop and use that land and that it would not release it to the ABC. It is the urgent desire of the Commission to proceed with the establishment of the orchestral studio on the Ferry Street site. I understand that it is expected that construction will take place over a period of 2 years and that the facilities should become available about March 1976.
– My question is directed to the Minister for Foreign Affairs and refers to some of the documents that were tabled by the Attorney-General yesterday in relation to the appointment of Senator Gair. The first document I shall refer to is the minute of the Executive Council dated 21 March which states, among other things, that such appointment of Senator Gair commences on and from a date to be determined by the Minister for Foreign Affairs. I ask the Minister for Foreign Affairs whether the document signed by him, dated 3 April and tabled yesterday, is his determination of the commencement of Senator Gair’s appointment?
– The appointment and terms and conditions signed by me? Yes.
– Is that your determination of the commencement of the appointment?
– How I can award questions fairly is a matter that has vexed me and continues to vex me. Yesterday, you will recall, you were called early and asked a question. Today I started at the other end of the chamber. Honourable senators try to attract my attention, but I accord some privilege to the party leaders by calling them first and try to award questions fairly and in rotation to the groups and parties represented here. In view of your long service to the Senate, after I have called Senator Bonner I shall call you.
– Is the Minister for Repatriation and Minister assisting the Minister for Defence aware that considerable unrest exists among members of the defence forces arising out of the failure to distribute the surplus funds of the Defences Forces Retirement Benefits Fund? Is the surplus $14m? If so, what steps, if any, is the Government taking to distribute these funds?
- Mr Barnard has responsibility for the Defence Forces Retirement Benefits Fund. The senator knows that we were the Government that in fact took up the Jess report and decided to improve on it. We gave servicemen a benefit which amounted to more than $50m last year. The Minister assured the organisation and the servicemen that further consideration would be given to any anomalies which might be presented. That consideration is presently being undertaken.
-I ask the Leader of the Government in the Senate: How does the Government reconcile its statements that Senator Gair ceased to be a member of this Senate on 14 March with the fact that Senator Gair made a statement in Brisbane last night in which, as reported, he claimed that he ceased to be a senator as of yesterday morning, Wednesday, 3 April.
– As I indicated before, in matters such as this it is possible sometimes that resignations might be tendered or expected and no one worries about the actual time of vacation of office. In this case, because of the manoeuvres that were taken by the Queensland Government, it was necessary for the Commonwealth Government to determine the position with some exactitude. That has been done. Advice given to the Government is that certainly after 21 March the senator had ceased to be a member of the Senate, having vacated his office by reason of the provisions contained in sections 44 and 45 of the Constitution. I am unaware of precisely what might have been said by Senator Gair, but in our view it would not touch the position that applies. If there is a vacation by force of the Constitution in the light of the events that have occurred then that is an automatic vacation and that is the end of the matter.
– I ask the Attorney-General: At what times of the day did the Executive Council meeting commence and finish on 21 March 1 974? ls it a fact that the journal records of the Senate show Senator Gair as having been present all day on 2 1 March 1 974?
-I do not know the answer to either of those questions. I recall that 21 March was a Thursday and I think that on that day the Senate rose at 5 o’clock or thereabouts.
-Does the AttorneyGeneral assure the Senate that the documents which he tabled yesterday are all the documents that have come into existence, particularly communications between Senator Gair and the Government, in relation to this transaction?
– As far as I am aware they are the relevant documents. The documents came from the Department of the Prime Minister and Cabinet and the Department of Foreign Affairs. The advisers of the Government looked at them. As to whether they are all the documents, I do not know. The honourable senator says ‘all the documents’. As far as the advisers of the Government were concerned these were the relevant documents. To take one example, who knows whether there might not have been 2 or 3 communications with the Government of Ireland? But the relevant documents were produced. As far as I am concerned, the documents were asked for, the advisers of the Government went and got the documents, and I produced what was made available to me. I do not know of any other document that is relevant.
– I direct a question to the Minister for Forreign Affairs. I refer to his answer to Senator Sim that Mr Brennan is at present the Ambassador to the Republic of Ireland. Is the Minister aware that the Prime Minister stated in Parliament this morning that Mr Brennan is not at present the Australian Ambassador to the Republic of Ireland? Were all the established formalities regarding the termination of Mr Brennan ‘s appointment completed, and on what date were these undertaken?
– As I see the situation, Mr Brennan is still the Ambassador in Ireland and Mr Gair is the Ambassador designate. This has been the usual thing that has gone on over the years. But I have noticed over the last couple of days that that appointment has raised more than ordinary interest in the Senate and that these things are being put under the microscope and talked about. The situation, as I understand it- I could be technically wrong on this as these are things to which Ministers generally do not apply their minds in detail because they have been going on for so long- is that Mr Brennan is the Ambassador to Ireland at the moment and the Ambassador designate to Ireland is Mr Gair.
– I direct a question to the Attorney-General. In view of the rather secretive legal method of appointing ambassadors extraordinary adopted by this Government, could I be advised whether there is any truth in a Sydney Press report that I am now the Ambassador Extraordinary to Brazil?
– The method of appointment of ambassadors has been traditional. A lot of fuss has occurred here because obviously some people do not like this appointment. But other persons from within and without Parliament have been appointed ambassadors. It is traditional that these appointments should not be publicly announced until the matters have been dealt with. It would be the height of wrongness, for example, to indicate that someone had been offered or was accepting an appointment until approval had been granted from the other government concerned. The honourable senator knows that. As for the suggestion that he may have been appointed Ambassador to Brazil, I only hope that he would be so appointed. Is this in the nature of an offer by him for the post?
– My question is addressed to the Leader of the Government in the Senate. I think he would agree that he owes loyalty to the staff in the Senate and should have some knowledge of the Standing Orders of the Senate. If that presumption is correct, I ask the Leader of the Government: If he was so certain that Senator Gair was not a member of the Senate after 1 4 March or 2 1 March, or whatever day prior to 3 April he wishes to choose, was he not in grave dereliction of duty and of decency and loyalty to the Usher of the Black Rod in not informing Black Rod that a stranger was in the House? Under standing order 445, as he should know, the Usher of the Black Rod, on being informed that there is a stranger in the House shall escort that stranger from the House.
– The answer to that is no. There ought to be a bit of common sense in this place. Here is a person who is in this place appointed as an ambassador. The appointment is made and the matters as pertaining to that are kept confidential. Leaving aside questions of technicalities of vacation of place or resignation, quite obviously, in any man’s language, after the matter had reached the stage that it reached after 2 1 March this year, under no circumstances, considering technicalities or otherwise, should Senator Gair have been coming into this chamber. No one would expect him to do so. At no stage have I done other than what I thought was right and proper and in the interests of this Government.
-My question is directed to the Attorney-General. I refer to the opinion given by the Solicitor-General which was tabled by the Attorney-General last night. When was the Solicitor-General asked to give that opinion?
-The Solicitor-General was asked to prepare the opinion in writing yesterday. I have given that information, but I want to say to the honourable senator and to others that that does not mean that he was not considering these questions prior to yesterday. The function of question time is not to ask Ministers in microscopic detail about every move and turn of the Government.
– Short memory.
-Whether or not I have a short memory, I want to say that Ministers are not here to be examined as to whom they spoke, where they went, what time of day it was, what clothes they were wearing and this kind of nonsense; and Ministers are not going to answer all these kinds of questions. We are here to answer questions on public affairs of importance and not to be subjected to this kind of microscopic examination which sometimes is absolutely ridiculous- it certainly has been on other occasions.
– Before I call Senator Wheeldon, who intimated to me earlier today that he would seek leave to make a personal explanation, I wish to draw the attention of honourable senators to a distressing habit that seems to have evolved in another place, namely, the using of the occasion of seeking leave to make a personal explanation on the ground of misrepresentation to further the debate. If leave is granted by honourable senators to other honourable senators to make statements on the grounds that they have been misrepresented, they must confine themselves to the matter on which they claim misrepresentation but must not debate the matter.
Senator WHEELDON (Western Australia) I wish to make a personal explanation.
– Does the honourable senator claim to have been misrepresented?
-Yes. In this morning’s issue of the ‘Australian’, an article appears which refers to events which took place yesterday in the Senate and the production by you, Mr President, of a letter written to you by Mr Gair. A paragraph which appears in the article reads as follows:
The letter, which was written with the advice of Senator Murphy, Senator Wheeldon ALP, WA also a lawyer and officials of the Attorney-General’s Department scrupulously avoided notifying a resignation, saying instead that he had vacated his seat.
At no stage did I act as Mr Gair’s adviser in a professional or in any other capacity. I had no knowledge of the letter until you, Mr President, read it to the Senate, nor did I know that the letter was being written. At no stage did the incompetent who wrote this article ask me whether I had any relationship with this matter. I had no relationship with this matter and I hope that the Senate will take note of that fact.
-Mr President, I wish to make a personal explanation.
– Does the honourable senator claim to have been misrepresented?
– Yes. My personal explanation concerns accusations that have been made against me by the Leader of the Government in the Senate and Attorney-General (Senator Murphy). The first point I want to bring to the attention of the Senate is that on the night in question, Tuesday night, there were no bar or dining room facilities available in Parliament House. 1 invited, as I often do, people around to my office. Those whom I have invited have included members of the Australian Labor Party. On this occasion I happened to ask Senator Gair whether he would like a drink and he accepted. He had not eaten a meal all day and so he had a meal there. Various people came into the room at different times and went out. This is what usually happens.
– They were all members of the Country Party.
-They were not all members of the Country Party at all. It was open to anybody. Whilst this was going on, I left my office with Senator Gair when a division was called. I was not hijacking him as Government senators would have us believe. He was free to come and go at any time. It must be the greatest joke of all time to think that anyone could tie down Senator Gair. I think that Government senators really underrate him in these circumstances. I was unaware as to whether he had put in a letter of resignation or whether he intended to put one in. The only information I had, which was around the Parliament, was that he was putting one in next day. I object to the fact that Senator Murphy did not consult with me as to whether this newspaper article that he referred to was true before he attacked me in the Senate. I think that honourable senators have rights. I have always thought that Senator Murphy was one who upheld the rights of honourable senators. I deplore the fact that he did not ask me whether everything was correct before making accusations against me. No doubt, this action is just a smokescreen to cover up the deplorable business that is going on concerning this matter.
- Mr President, I wish to make a personal explanation.
– Does the honourable senator claim to have been misrepresented?
– Yes. The honourable senator said that I have made accusations against him. I have made no accusations against him. The accusations were referred to by the honourable senator in a question referring to a newspaper article. I said that if the article was correct, it was a disgraceful matter. I understood this also to be the view of the Deputy Leader of the Opposition who said that they were grave imputations or something of this nature. I said that the honourable senator ought to give his explanation to the Senate. I was not there. I was not in a position to make any accusation. The accusation was made in a public newspaper. That is the position and it ought to be understood.
- Mr President, I lay on the table of the Senate the particulars of proposed additional expenditure for the service for the year ending 30 June 1974 and particulars of certain proposed additional expenditure in respect of the year ending 30 June 1974.
Motion (by Senator Willesee) agreed to:
That consideration of the particulars of proposed additional expenditure for the service of the year ending 30 June 1974 and particulars of certain proposed additional expenditure in respect of the year ending 30 June 1974 in the Committee of the Whole be an order of the day for the next day of sitting.
Senator MURPHY (New South WalesAttorneyGeneral) For the information of honourable senators I present a report entitled Towards an Australian Science Council’ which has been issued by the Honourable W. L. Morrison, Minister for Science. The report is accompanied by a statement by the Minister for Science, which I also table.
– I table the report of the Committee of Inquiry into the Citizen Military Forces and seek leave to make a statement.
-Is leave granted? There being no objection, leave is granted.
– In reading the statement when I use the first person singular pronoun I am, of course, referring to the Minister for Defence (Mr Barnard). It will be recalled that in April 1 973 I announced the establishment of an independent Committee to undertake a comprehensive review of the Citizen Military Forces. My intention was to initiate for the first time in the history of the CMF a thorough review of its role, the circumstances in which it might be used in the future, its organisation, conditions of service, training, title and its geographic disposition. This review was long overdue. The Committee was led by Dr T. B. Millar, Director of the Australian Institute of International Affairs and a former officer in both the Regular Army and the CMF. The other members of the Committee were: Major-General D. B. Dunstan, formerly Army Chief of Material and now Commander of Field Force Command; Major-General K. D. Green, a recently retired CMF Divisional Commander, who is Secretary of the Premier’s Department of Victoria; Mr W. A. Jarvis, a sociologist from the University of New South Wales; Mr J. G. O ‘Loghlin, a consulting engineer and former CMF officer, and Colonel L. A. Simpson of the CMF, a chartered town planner and surveyor from Hobart.
At the time the inquiry was set up, I indicated that I was aware of serious problems of morale in the CMF. These problems were, and of course still are, a cause for concern. They are, to a large extent, the result of the lack of interest given the CMF by successive Liberal-Country Party governments. The abortive re-organisation into pentropic divisions in the early 1960s played havoc with the organisation. However, the greatest damage resulted from the previous government’s attitude to the CMF during the IndoChina war. Indeed the Citizen Military Forces were a casualty of that war. They suffered not at the hands of a foreign foe but of their own government. In 1964, legislation was enacted to permit the CMF to be called out for continuous service, by proclamation, in a ‘time of defence emergency.’ However in the Vietnam conflict, conscription was used to provide junior officers and men when the size of the volunteer Regular Army was found inadequate for the scale of involvement which that government sought. As the report says: ‘There is within the Citizen Military Forces, considerable resentment of the fact that they were not called to active service in Vietnam, and a general lack of confidence in the national intention to employ them short of a fullscale mobilization, which is seen as a remote possibility. This lack of purpose is a fundamental cause for many of the present problems of the organisation. ‘
This Government will never deploy conscripts while volunteer reservists, willing to serve are unused. The previous Government increased the injury and compounded its failure to keep faith with the CMF by making service in that organisation an alternative to conscription. Thus an organisation made up of people willing to serve their country in war were burdened with a large influx of recruits many of whom were motivated by a desire to avoid active service. The CMF deserves better than that. It is a vital factor in Australia’s ability to expand our ground forces, should a threat develop. The Committee has undertaken an extensive examination of the CMF. It has obtained evidence from a wide range of sources including the general public. It has travelled to all Australian States, visiting units of the CMF. Some members made overseas visits as well. The Committee also conducted surveys of the attitudes and views of employers, Trade Unions, the public at large, and current and ex-members of the CMF.
The members of the Committee are to be highly congratulated and thanked for their efforts in producing the report. I am aware that they have all made many personal sacrifices in order to achieve the results I place before you. This report will serve as an invaluable basis for decisions about the Citizen Forces, now and in the future. The CMF Committee of Inquiry’s report argues persuasively for the need to make substantial changes to the role, organisation and conditions of service for the CMF. In this regard a large number of recommendations have been put forward, many of which will be implemented quickly, but some will require further consideration by the Government. Some will require legislative amendments.
Regarding the Committee’s general commentary on strategic factors, although there is much in the report with which everybody could agree, some judgments differ from those of the Government and its Service, Defence and Foreign Affairs advisers. Insofar as the Committee’s recommendations depend on these judgments, this aspect will need further consideration. The Government accepts the need for change to update the role, organisation and conditions of service of our citizen forces, which with the Australian Regular Army combine to form Australia’s ground force capability. That there is a need for change is not surprising when one considers the history of the CMF against the background of other development which has occurred since its creation in its current form in 1948. In the first instance, the strategic outlook is vastly different today from what it was in 1948. Secondly, there have been large changes in the size of our population, its skills and its distribution. Thirdly, there have been major developments in our industrial base which add to our potential for mobilisation. Fourthly, there have been a number of important changes to the size, organisation, composition, experience and pay and conditions of the Regular Army. These changes have not all been taken into account for the CMF.
The current position with the CMF is that it has no clear role. Its organisation is no longer appropriate to act properly as a reserve for the Regular Army, many of its units are not viably manned. Therefore I particularly welcome the Committee’s attention to the provision of a meaningful role for the Army Reserve. It suggests that the Army Reserve be responsible with the Regular Army for the ground defence of the Australian continent, that existing roles in defence emergency or mobilization be retained, that in the event of commitment beyond the resources of the Regular Army the Army Reserve be activated as the next force to be employed and that the Army Reserve have a role in civil emergencies. There is no practical alternative to the re-shaping of the CMF, if it is to be re-vitalised and be of value to our Defence effort. The changes to be made by the Government will be welcomed by those who are genuinely concerned with the need to protect our national interests. As honourable senators will appreciate, the Government has had only a short time to consider the wide-ranging recommendations of the Committee. The Army and the Defence Force Development Committee have not yet had time to consider the report in the depth it deserves. The Report, including the manpower and cost implications, requires further study and this is being pressed forward.
At this stage, I have approved the Committee’s proposals for: (i) The CMF is to be more closely integrated with the Regular Army. Its units and formations are to be allocated to the Functional Command appropriate to their task, i.e. to Field Force Command, Logistic Command or Training Command; (ii) a MajorGeneral CMF officer to be appointed as assistant commander Field Force Command, a MajorGeneral CMF officer to be appointed assistant commander Logistics Command, and CMF Officers of the rank of Brigadier to be appointed assistant commanders at Training Command and at the First Division. The times at which these senior appointments are made will be directly related to the re-organisation of the present CMF Divisional structure; (iii) a CMF Major-General to be appointed as Inspector General at Army Office; (iv) a Regular Army Major-General to head a Reserve Branch at Army Office. The creation of the new Branch and this appointment will ensure that additional impetus is given to the re-organisation proposals.
The title ‘Citizen Military Forces’ is to be changed to a name which more appropriately reflects its basic role and function- the ‘Australian Army Reserve’, or more simply ‘Army Reserve’. The new Australian Army Reserve is to incorporate other Army reserves as well as the present CMF- the Regular Army Emergency Reserve, the Regular Army Reserve, the Citizen Military Forces and the Retired List of former Regular and CMF officers. These changes reflect the Government’s determination that we must have one Australian Army in the 1970s- a Regular component and a Reserve component. The acceptance of this concept, which the committee calls the Total Force concept, will give the citizen soldier a much clearer understanding of his role and place in our defence forces; it will mean that his training, function, equipment and other support will closely resemble that of the Regular Army.
The Committee of Inquiry has obtained considerable evidence which demonstrates the current impractical situation of grossly undermanned CMF units. The fact is that at present many of these units are so deficient in strength that they cannot satisfactorily train. Accordingly, as proposed by the Committee, I accept as a matter of principle that units must be manned at viable levels although I hesitate to apply the suggested requirement of 70 per cent of establishment across the board without first examining whether there should not be differing requirements for different types of units. This means that it will be necessary to amalgamate a large number of units. At present the CMF has some 900 units, and over 90 per cent of these are poorly manned. I assure honourable senators that we will endeavour to do this in a way which will preserve the best traditions and local identities of CMF units while taking account of the present and future practicabilities of having a viable reserve Army.
These changes could come as a disappointment in some ways to members of some individual units affected. The Government is sensitive to these feelings. However, changes are necessary if the Reserve is to be more than a paper army and be able to undertake the tasks it might be called on to carry out in the future. It is futile to continue the current practice of retaining battalions when in fact the reality is that the unit existing is something substantially less. Also, these changes must come because it is clear that many young men leave the CMF as they find the training boring, repetitive and unrealistic. The Committee has found that one very important reason for this is that units are so badly undermanned that it is not possible to provide realistic training at the level required.
The Committee has recommended a number of other important organisation changes including the creation of an Army Reserve Council and a Committee of Employer Support. I recognise there would be value in having such bodies, but before finally approving their establishment I wish further consideration to be given to their precise composition and role. I have ordered that this be done expeditiously.
Turning to the question of pay and conditions of service, the Committee has recommended a large number of improvements and changes. I accept the need for improvements and I want improvements implemented as quickly as possible. The Committee’s recommendations on pay and conditions will be given careful consideration in the appropriate Government machinery. Of course, such matters involve other portfolios as well as defence, and it will be necessary for me to consult my colleague the Treasurer and other appropriate Ministers.
Mr President, let me assure you that there must be no doubt that this Government is determined to improve the CMF. It will give this country a reorganised CMF which is not only attractive to the young men and women who wish to serve in it but with the Regular Army will also provide a viable base for expansion should this be necessary in the future. Let me be quite clear that the CMF- in future to be known as the Army Reserve- is an essential and honoured component of the Australian Army. The Committee will present to me in a few weeks’ time a separate report on the school cadets. I shall table this at an appropriate time.
- Mr Deputy President, I ask for leave to propose a motion.
The DEPUTY PRESIDENT (Senator Webster)- Is leave granted? There being no objection, leave is granted.
I ask for leave to make my remarks at a later stage.
Leave granted; debate adjourned.
The DEPUTY PRESIDENT- Order! The President wishes me to announce to the Senate that he will be absent from the Senate for a short time due to certain ceremonial duties.
Motion (by Senator Murphy) agreed to:
That leave be given to introduce a Bill for an Act relating to the Elimination of Racial and other Discrimination.
Bill presented, and read a first time.
Standing orders suspended.
– I move:
This Bill re-introduces, with improvements, the Racial Discrimination Bill 1973, which was introduced into the Senate on 21 November 1973. The purpose of the Bill is to make racial discrimination unlawful in Australia. It implements into Australian law the obligations contained in the International Convention on the Elimination of All Forms of Racial Discrimination. It is recognised in this Convention that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous and without any justification. Seventy-five countries have already ratified the Convention and the Bill will enable Australia to become a party to the Convention.
The basic framework of the 1973 Bill has been retained. The Bill will make it unlawful for a person to do an act involving discrimination based on race, colour, descent or national or ethnic origin which impairs the enjoyment of fundamental rights and freedoms. The Bill guarantees equality before the law without discrimination based on race or national origin. It will make it impossible to deny rights to members of a particular race of national origin, where those rights have been given to persons of another race or a different national origin.
The Bill goes on to deal in greater detail with discrimination in the enjoyment of rights on grounds of race, colour or national or ethnic origin. It deals with discrimination so far as it concerns access to places and facilities, the provision of land, housing and other accommodation, the provision of goods and services, the right to join trade unions and employment.
As was the case with the 1973 Bill, machinery to enforce the elimination of racial discrimination forms an important part of the legislation. The Bill sets out legal remedies that may be sought by an aggrieved person before the courts and offences of inciting racial disharmony are created. An Australian Race Relations Commissioner will be established to investigate alleged breaches of the Act and endeavour to achieve a settlement by conciliation. Where this cannot be achieved, the Commissioner will have power to commence legal proceedings on behalf of the aggrieved person. A Race Relations Council will be established to make recommendations on the action that should be taken to bring about the elimination of racial discrimination in Australia.
I have mentioned that this Bill incorporates some improvements to the legislation that was introduced in 1973. The main changes made to the 1973 Bill fall into 4 categories. In the first place, the Bill has been extended to deal with discrimination against persons on the ground that they are immigrants. The previous Bill applied only to discrimination that is made on the grounds of race, colour, descent or national or ethnic origin. This is the basis on which most discrimination is made against migrant people and the form of discrimination dealt with by the Convention against Racial Discrimination. However, I have decided that it would be desirable for the Bill to deal also with discrimination made against a person purely on the ground that he is an immigrant, and the Bill has been so extended.
Secondly, the provisions relating to the Australian Race Relations Commissioner have been revised. There has been some criticism of the provisions of the earlier Bill giving a commissioner compulsory evidence-gathering powers of the kind that are to be found in a royal commissioner and in other pieces of legislation. The New Zealand race relations legislation contains similar powers. There is much to be said for the inclusion of provisions of this nature, to enable issues to be assessed, to assist in the achieving of a settlement and to reduce the need for expensive litigation. However, I have decided that the provisions should be deleted to ensure that emphasis is placed on the Commissioner’s primary role, that of mediation and conciliation. The Bill has therefore been amended to further clarify this important role.
Thirdly, additions have been made to the functions of the Race Relations Council to reinforce its role with respect to the promotion of education and research. The Council’s role will encompass the areas of educational programs, the promotion of studies and research programs, the publication and dissemination of material to assist in the elimination of racial discrimination and the promotion of understanding, tolerance and friendship among racial or ethnic groups.
Finally, amendments have been made to the jurisdictional provisions of the Bill. The Bill invests the Superior Court of Australia with jurisdiction to hear matters instituted under the Act and, as from a date fixed by proclamation, State and Territory Courts will also be vested with jurisdiction to hear such matters. This will enable the Superior Court to establish guidelines for the operation of the legislation and will provide a ready means of extending jurisdiction to courts in country areas. These provisions will not prevent any court from exercising jurisdiction in respect of a matter arising under the Act in other proceedings before the court. The Bill also contains provisions for the removal to the Superior Court of matters arising under the Act in Territory courts or State courts, other than the Supreme Court. Until the Superior Court comes into operation, temporary jurisdiction will be exercised by the Australian Industrial Court.
The changing of community attitudes and the promotion of understanding, tolerance and friendship among racial or ethnic groups will form an extremely important part of the Government ‘s program for the elimination of racial discrimination. For too long has Australia isolated itself from these problems. It will be necessary for both the Government and the community to increase its awareness of the complexity of race relations. Australia must approach this problem with a sense of national unity to ensure that prejudice and racialism do not form any part of our national identity. I have observed on another occasion that anti-discrimination laws cannot operate in a vacuum. They must be accompanied by positive Government programs designed to bridge the gaps that result in racial tension. These programs must enlist the support of the community because public awareness and the changing of community attitudes will be of vital importance in achieving the objectives of the Government’s policy.
The Bill now before the Senate will provide a focal point for the realisation of these goals. The existence of the legislation will have a great educational value. The proscribing of acts of racial discrimination, will of itself, assist in reducing social pressures that result in discrimination. The legislation will not only provide important remedies that are not at present to be found in our law; it will also provide a framework within which broader social issues, as well as individual injustices, can be tackled. I commend the Bill to the Senate.
Debate (on motion by Senator Greenwood) adjourned.
Motion ( by Senator Murphy) agreed to:
That leave be given to introduce a Bill for an Act for the purposes of Statute Law Revision.
The DEPUTY PRESIDENT (Senator Webster)- Is it desired to postpone or rearrange the business?
– I understand that Business of the Senate will take precedence of General Business. I move:
This would enable debate on Business of the Senate to proceed without interruption 2 hours after the meeting of the Senate.
Question resolved in the affirmative.
Motion (by Senator Murphy) agreed to:
That the Senate at its rising adjourn until Monday next at 2 p.m.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Wriedt) read a first time.
– I move:
The second reading speech is identical to the one which was delivered in the House of Representatives. I seek leave to have it incorporated in Hansard.
The DEPUTY PRESIDENT (Senator Webster)- Is leave granted? There being no objection, leave is granted. (The document read as follows)-
This Bill is designed primarily to amend the Wool Industry Act 1972-73 to provide for financing the projected cost of programs of wool research and promotion and to finance the marketing administrative costs of the Australian Wool Corporation during the 3 years commencing in July 1974. So far as research is concerned, the program represents only a part of the total research effort from which the wool industry derives benefit, but the provisions of the Bill will ensure the continuation of arrangements which have a long history in the wool industry.
When the Wool Industry Act was amended last year, to provide for the financing of the wool research and promotion activities and the marketing administrative expenses for 1973-74, it was stated that the Government would be examining the whole question of the financing of research and promotion together with the need for longer-term forward programs beyond 1973-74. Honourable senators will recall that in introducing the amending legislation last year, I outlined the problems inherent in forward programming of research and promotion activities because of unpredictable and uncertain changes in wool income, and the effect of inescapable increases in salaries and other costs.
The Government has since reviewed the problems of co-ordinating, programming and financing wool research and promotion, and has decided on the arrangements for a 3-year forward program commencing on 1 July this year.
The Government approached the overall question of research and promotion expenditure with a view to taking account of the following major factors: Adequacy of the co-ordination and planning of research and promotion; the desirability of forward programs of research and promotion for particular periods; the overall philosophy that the beneficiaries of research and promotion programs should bear the greater proportion of total costs of those programs.
Budgets for appropriate programs of research and promotion for each of the 3 years commencing in 1974-75 have been developed in consultation with the Australian Wool Corporation, and, through the Corporation, with the International Wool Secretariat, with the Commonwealth Scientific and Industrial Research Organisation, and with the Bureau of Agricultural Economics. The views of wool growers on these programs are directed through the Corporation and achieve considerable force. The cost of these programs, together with the estimated costs associated with the administration of the marketing activities of the Corporation, and inclusive of an allowance for estimated wage and cost increases, amounts to $44.2m in 1974-75, $49.1m in 1975-76 and $53.1m in 1976-77. The program of research and promotion will be financed jointly by contributions from wool growers and the Government. The cost of marketing administration will be borne entirely by the industry. 1 will refer to major provisions of this Bill under the 3 main headings of research, promotion and marketing administrative costs of the AWC. I will then refer briefly to the wool tax which is levied on growers to provide for their financial contribution.
The extent of the Government’s involvement in the financing of the research program has been carefully examined, and it is considered that whilst rural producers benefit directly from many of the results of rural research, the Australian community, in general, also benefits in many ways from this research activity. Benefits accrue, for example, through more assured food and fibre supplies as a result of productivity increases in the rural sector. Further, research programs in agricultural and biological sciences often have broad implications for the quality of the environment generally, and for the maintenance of the productive capacity of renewable resources.
Recognising that the benefits of research are so widely distributed, the Government has decided that it would be appropriate for a greater share of the cost to be borne by a contribution from public funds than has been the case in the past. In other words, the Government has decided to increase its share of the cost of the research programs financed from the Wool Research Trust Fund. Accordingly, the Government has decided that it will contribute threequarters of the cost of approved programs of wool research, to be financed through the Wool Research Trust Fund, during the second and third years of the forthcoming triennium. Wool producers will be asked to finance the remaining one quarter. In order that there is adequate warning of these changed arrangements, the present cost sharing arrangement will be continued for 1974-75.
With regard to wool promotion, the Government has carefully studied the promotion activities of the International Wool Secretariat and the Australian Wool Corporation. It is agreed that there are strong economic arguments in favour of wool promotion expenditure and the benefits of promotion do spread to groups other than wool growers. In addition the Government recognises the need for continual development and improvement of the technical processing properties of wool as a fibre and the promotion of these advantages at all stages in the marketing chain. In this way the demand for wool is influenced, both absolutely and in relation to competing fibres. It is the Government’s judgment, however, that the balance of arguments concerning the distribution of benefits from promotion differs from that for research. The benefits from promotion activity accrue more directly to producers than to other members of the community, and accordingly it is considered that wool growers themselves should make the major financial commitment to promotion expenditure. On this basis the Government has decided to finance one quarter of the projected wool promotion budgets, leaving to wool growers the responsibility of financing the balance. Again, in order to ensure adequate advance notice of the changed arrangements for financing the promotion programs, the Government has agreed to defer implementation of the new funding basis until 1975-76. Accordingly, for 1974-75, the Government will continue to contribute on an equal basis with wool growers towards the cost of both research and promotion.
Marketing Administrative Costs
The administrative cost of discharging the marketing functions of the Australian Wool Corporation is currently met in total from part of the proceeds of the wool tax. This arrangement is to continue. Prior to 1973-74, these expenses were met by a charge levied by the Australian Wool Corporation, and its predecessor organisation, on shorn wool sold at auction by brokers. In 1973-74, this charge was incorporated into the wool tax and applied over all shorn wool sold. The operative rate of tax therefore incorporates a component related to the financing of marketing administrative costs. To summarise the effect of the decisions outlined above, programs of wool research and promotion, and the financing of the marketing administrative costs of the Australian Wool Corporation during the 3 years 1 974-75 to 1976-77, have been established at the following levels:
Funds to meet the expenditure will be provided on the following basis:
The Government will contribute on the basis of maximum amounts of $22m in 1974-75, $20m in 1975-76 and $21m in 1976-77. These amounts have been rounded upwards so as to provide a small margin for administrative convenience in the detailed allocation of the funds. Any benefit of the rounding will accrue to the industry.
Wool growers’ contributions are raised by means of the wool tax. A question of importance, therefore, is the level of the tax for the next 3 years, and particularly for 1974-75. At present the wool tax is set at 2.4 per cent of the value of shorn wool. It can be calculated that on the basis of a total seasonal return from shorn wool of about $ 1,000m, that is slightly below last year’s high level, there would be no need to increase the rate of tax in order to provide sufficient finance to meet the budget in 1974-75. However, should the return from shorn wool decline to the order of $850m for instance, then a levy of 2.75 per cent would be required. In view of the fluctuations often experienced in wool returns, the Government has decided that it would be prudent to raise the existing rate of wool tax to 2.75 per cent for 1974-75. The Treasurer (Mr Crean) is making arrangements for the necessary changes to the Wool Tax Regulations. Because of the conservative basis on which probable tax income for 1974-75 has been estimated, it is possible that a tax of 2.75 per cent will result in some surplus above the amount required for funding purposes during 1974-75, but any surplus would oe credited to the Wool Research Trust Fund where it would be carried forward to help finance expenditure in future years. I should make it clear that moneys placed in the Wool Research Trust Fund may be used only for expenditure on approved wool research, and thus there is full assurance for growers who contribute tax that money placed in the Fund will not be used for other purposes.
The Wool Tax Acts provide for a maximum rate of tax of 3 per cent. The present operative rate is 2.4 per cent. The increased rate which will apply as from 30 June next is thus still below the maximum rate already provided for. Depending on future movements in wool production and wool prices, it may be necessary to vary the rate of tax in subsequent years. I have discussed with the Australian Wool Industry Conference the financing and programming arrangements for the triennium. The conference, through its Chairman, has indicated agreement with the forward planning principles and accepted the advisability of the increased rate of wool tax which will bie levied during the coming financial year.
I now turn to the specific amendments of the Wool Industry Act 1972-73, which are required in terms of the Government’s decision, and to a number of amendments of a machinery nature which it is convenient to make at this time. The Bill provides for amendments to Part I of the principal Act by the deletion of references to the Interim Chairman of the Australian Wool Corporation. The permanent Chairman having assumed office, the position of Interim Chairman cannot be filled again. The various references to the Office of Interim Chairman in other parts of the Principal Act are also removed. Section 83 (2a) of the principal Act is amended to provide for a continuation of the existing arrangements whereby the Minister, after consultation with the Australian Wool Industry Conference, determines the total amount of Wool Tax to be paid to the Corporation in each year. The balance of tax receipts is paid into the Wool Research Trust Fund. Section 84a of the principal Act is amended to provide for payment to the Corporation and to the Wool Research Trust Fund of the Government contributions for the triennium commencing in 1974-75. Clauses have been included in recognition of relevant provisions of the Remuneration Tribunal Act, 1973, which relate to the remuneration of statutory office holders.
The Government’s commitment to contribute to the 3-year program of wool research and promotion will provide an immediate and sure base on which forward programs can be developed. The Government’s POliCY in relation to the continuation of assistance for wool research and promotion beyond June 1977 will be determined in the light of reports by the Industries Assistance Commission on the question of Government assistance for rural research and promotion generally. The present funding arrangements for wool research and promotion will terminate on 30 June next It is essential, therefore, in the interests of the wool industry, that this amending legislation to provide for the continuation of the funding arrangements be enacted prior to that date. I commend the Bill to honourable senators.
Debate (on motion by Senator Laucke) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Douglas McClelland) read a first time.
– I move:
Because my second reading speech is in the same terms as the second reading speech which was delivered in another place by my colleague the Minister for Tourism and Recreation (Mr Stewart), I seek leave to have incorporated in Hansard my second reading speech.
The DEPUTY PRESIDENT (Senator Webster)- Is leave granted? There being no objection, leave is granted. (The document read as follows)-
Honourable senators will recall that in her speech at the opening of this second session of the Twenty-eighth Parliament, Her Majesty, the Queen, foreshadowed the Government’s intention to introduce this Bill. Since its establishment in 1967 the Australian Tourist Commission has operated within its given charter of the encouragement of visits to Australia and travel in Australia by people from other countries.
In 1968, the year following the establishment of the Commission, some 237,000 short term visitors came to Australia from overseas. In the same period, short term departures from Australia totalled some 252,000. That is a difference of some 15,000 between arrivals and departures. During the same period our foreign exchange earnings from spendings of overseas visitors amounted to $98m whereas, on the debit side $150m was spent outside Australia by people departing this country on a short term basis. This left a travel gap of $52m. Between 1968 and 1971 the travel gap maintained a steady upwards pattern. For instance by the end of 1971 it had increased to $74m. In 1872, however, it increased dramatically to $ 1 76m. While in that year the number of short term visitors increased by 9.7 per cent over the previous year, there was a significant decline on the visitor growth rates of 14.9 per cent and 22.7 per cent respectively, experienced in 1970 and 1971.
While this situation can, in general terms be explained by currency ajustments, the cessation of the United States R and R program to Australia which terminated on 31 December 1 97 1 and in some cases by an uncompetitive fare situation from our major markets, there are no indications that the position is improving, nor can one be optimistic that it will improve of its own accord. For instance, based on current estimates for the year ended 31 December 1973 about 319,000 short term visitors came to Australia and short term departures amounted to about 460,000. In money terms in the same period, receipts amounted to $139m and spendings by Australians travelling overseas as short term visitors were $359m, a staggering gap of $220m- an increase of 25 per cent over the previous year. The Government believes this to be a serious situation and while, at this moment, Australia does not have a balance of payments problem the travel gap of $220m represents a serious imbalance. Clearly then, there is an urgent need to correct this situation.
The Australian Tourist Commission is doing an excellent job in promoting Australia overseas but given the many problems it faces in selling Australia as a tourist destination it is unrealistic to expect that the Commission would be able to increase Australia’s foreign exchange earnings from tourism to such an extent that it would balance the spendings of Australians abroad. How can we solve, or at least minimise, this problem? Certainly the Government has no intention of taking action to limit the numbers of Australians travelling overseas. We consider that Australians travelling overseas and people from other countries visiting Australia have more than an economic impact. The interaction of people leads to a better understanding between nations and thus barriers should not be placed on overseas travel. The Government considers, as do many associated with the tourist industry, that the Australian Tourist Commission could do much to help overcome this economic problem if it were given authority to encourage more Australians to have their holidays at home- a noble objective, and I may add, in accordance with the philosophy of my Government to encourage more Australians to see and learn more of their own country.
This leads me to the main purpose of the Bill which is to amend the existing Act to enable the Commission to enter into the domestic tourism promotion field. The role of promoting travel within Australia has in the past been left to the State governments and Territory administrations, through their tourist bureaux, to the Australian National Travel Association and to other private or government bodies such as airlines, shipping lines, railways, coach companies etc. But more can be done. Here I might add that the Minister for Tourism and Recreation has discussed this matter with his colleagues on the Tourist Ministers ‘ Council which includes Ministers from all States, and they have endorsed these proposals.
While the Department of Tourism and Recreation has the authority to promote domestic tourism in Australia it desires to take advantage of the expertise within the Australian Tourist Commission. The Commission has over the years built up the experience to engage in this type of activity and indeed has done a tremendous job of making Australia better known overseas. It thus has the ability to make Australia better known to Australians. The type of promotions which the Commission will be asked to undertake will be ‘umbrella’ nationwide promotions, in co-operation with the States and the travel industry aimed at complementing and supporting existing promotional and policy activities and encouraging wider travel in Australia. To give effect to the Government’s decision to widen the powers of the Australian Tourist Commission to enable it to enter into the domestic tourism promotion field section 1 5 of the principal Act is to be repealed. This section at present reads:
The Commission is established for the purpose of the encouragement of visits to Australia, and travel in Australia by people from other countries.
Under the proposed amendment section 15 will read:
The Commission is established for the purpose of the encouragement:
of visits to Australia, by people from other countries, and
of travel in Australia, including travel by people from other countries.
Similarly, the Bill provides that section 16, paragraph (b) of sub-section (2) be amended to read:
To induce and assist travel agents, transport operators and other appropriate bodies or persons to encourage people in other countries to visit Australia and to encourage travel in Australia including travel by people from other countries.
I turn now to the constitution of the Commission as stated in clause 5. The Australian Tourist Commission Act 1967-1973 provides that the Commission shall consist of 5 voting and 2 nonvoting members, the 2 non-voting representatives being persons nominated by the governments of the States and who serve on the Commission on a rotating basis. The Bill provides that all members of the Commission be entitled to vote. This is a basic principle. It is important that the Australian and State governments and industry interests work in close harmony to achieve our aims and accordingly, all members of the Commission should be equal and have full voting rights. The Bill also provides that the number of members should be increased from 7 to 9 members. It is the Government’s belief that the importance of tourism in the economy requires an expansion of the Commission to make it more representative of the various interests which might be expected to have a voice on such a body. At a later date the Minister for Tourism and Recreation will be announcing the 2 new members of the Tourist Commission.
The Bill, of course, makes other provisions. However, these are secondary to the factors I have already outlined to you and are made either because of the passage of other Bills enacted by the Parliament in recent months, or because the main amendments proposed in this Bill require other provisions to be made as a matter of administrative procedure. The Government is of the view that the measures which I have outlined will represent a further step forward in the development of our tourist industry. I believe that honourable senators on both sides of this House will recognise it to be an important step which will complement other measures which have already been adopted to assist the tourist industry and which the Minister for Tourism and Recreation will be striving to obtain for the industry in the years ahead. I commend the Bill to honourable senators.
Debate (on motion by Senator Laucke) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Wriedt) read a first time.
– On behalf of Senator Willesee, I move:
I understand that Sena or Willesee has indicated his desire to have the second reading speech incorporated in Hansard. Therefore, I seek leave to have it incorporated.
The DEPUTY PRESIDENT (Senator Webster)- Is leave granted? There being no objection, leave is granted. (The document read as follows)-
The principal purpose of this Bill is to implement the Government’s proposal to extend the charter of the Commonwealth Development Bank of Australia to provide finance for tourist development projects, especially smaller projects in selected areas. This proposal was first announced by my colleague, the Minister for Tourism and Recreation (Mr Stewart), on 22 August 1973, when he foreshadowed that the necessary amending legislation would be introduced this year.
The tourist industry is an important contributor to the overall economic prosperity of this country. The key to the industry’s continual growth to satisfy the needs of both domestic and overseas tourists is its ability to obtain adequate investment funds on reasonable terms. Most operators in the industry seeking development finance are experiencing difficulty in obtaining new funds on satisfactory terms, particularly for smaller undertakings in remote areas, and the proposed legislation is designed to help alleviate these problems.
Under the current legislation, the Commonwealth Development Bank’s principal function is to provide finance to assist primary production or to establish or develop industrial undertakings, particularly small undertakings, in cases where in its opinion finance is desirable but would not otherwise be available on reasonable and suitable terms and conditions.
The proposed amendment to section 72 of the Commonwealth Banks Act will widen the Development Bank’s function to enable it to provide finance for the establishment or development of undertakings, particularly small undertakings, providing accommodation or transportation for tourists or other facilities designed to attract tourists. The provision of such finance will be subject to the same statutory provisions as those applicable to the Bank’s existing lending operations, including the requirement that the Bank should be satisfied the finance would not otherwise be available on reasonable and suitable terms and conditions. The amendment to section 72 will also empower the Development Bank to provide advice and assistance to tourist enterprises. The Development Bank will be particularly concerned with financing smaller enterprises involved in the development or improvement of tourist facilities away from main population centres. In accordance with the Government’s wishes the Development Bank will consult as appropriate with the Departments of Tourism and Recreation, Urban and Regional Development, and Environment and Conservation in carrying out its financing role in the tourist industry.
This Bill also brings into line with the Remuneration Tribunal Act 1973 the provisions in the Commonwealth Banks Act relating to the determination of the remuneration payable to members of the Commonwealth Banking Corporation Board and the various statutory officeholders under the Act. The amendments effected by clause 4 and the schedule to the Bill will thus formalise in the Commonwealth Banks Act the requirement that the remuneration payable to the statutory office-holders concerned be determined in future by the remuneration tribunal established under the Remuneration Tribunal Act.
In accordance with current practice, clause 4 also makes provision for allowances payable to the statutory office-holders specified to be prescribed by regulations. I commend the Bill to honourable senators.
Debate (on motion by Senator Laucke) adjourned.
Message received from the House of Representatives returning the Bill with an amendment.
Motion (by Senator Murphy) proposed:
That the message from the House of Representatives be considered in the Committee of the Whole forthwith.
– I do not know what arrangements have been made with regard to this Bill and I do not know how substantial the amendment is. Until I have had an opportunity to consider the amendment, I will not be willing to proceed with a substantial debate.
– by leave- After the Senate dealt with the Legislative Drafting Institute Bill- I think it was after, but in any event this is how it has operated- the Parliament passed the Remuneration Tribunal Act. Now, instead of Parliament fixing the remuneration, provisions to this effect are being inserted in all measures dealing with such officers:
That is perfectly in accordance with the intent of the Senate in regard to such officers. The amendment has been made to accord with the decision of Parliament in regard to the Remuneration Tribunal. This is a simple machinery provision which is being incorporated in all the measures which come through. There is no change in the substance of the Bill.
Question resolved in the affirmative.
Clause 11. 11.(1) The Director shall be paid remuneration at such rate, and an annual allowance at such rate (if any), as the Parliament fixes, but, until1 January 1975, the rate of remuneration and the rate (if any) of that allowance shall be as prescribed.
House of Representatives amendment-
Leave out the clause substitute the following clause:
1 . (1 ) The Director shall be paid such remuneration as is determined by the Remuneration Tribunal, but, until that remuneration is so determined, he shall be paid such remuneration as is prescribed.
Subject to the Remuneration Tribunal Act 1973, the Director shall be paid such allowances as are prescribed.
Payments under this section shall be made out of the funds of the Institute. ‘.
Motion (by Senator Murphy) proposed:
That the amendment made by the House of Representatives be agreed to.
– I indicate that I do not propose to proceed to debate this matter now. I recall that the Remuneration Tribunal Act was pushed through this chamber under exceedingly great pressure, if not guillotined, and the provision that gives the Tribunal final determination of these matters in substitution for the Parliament has not been fully considered.
– I am happy to move that progress be reported if there is to be a real debate. I understood that this was not to be. I had not realised that there might be a full debate. We thought it convenient to put the matter through because we did not think there would be any objection.I have no objection to the course suggested, and I move:
-I am grateful to the Attorney-General (Senator Murphy) for that indication of courtesy. I was about to say that I did not propose to take the opportunity provided by this debate to raise the general principle because I think that subsequently there will be a more appropriate occasion in the Senate. I do not wish to delay honourable senators; I simply indicate my concern so that if any other senators are interested in this question it will be on notice to them when such a debate comes on.
– I ask for leave to withdraw my motion that progress be reported.
-(Senator Brown). - Is leave granted? There being no objection, is is so ordered.
House of Representatives amendment agreed to.
Resolution reported; report adopted.
Sitting suspended from 12.50 to 2.30 p.m.
Yesterday the President of the Senate read out to the Senate a letter sent to him by Mr Vincent Gair in which he said that he had vacated his seat by accepting the office of Ambassador to the Republic of Ireland. That, in brief, is what the letter states. Section 47 of the Constitution provides:
Until the Parliament otherwise provides, any question respecting the qualifications of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.
In the case of R. v. The Governor of South Australia in 1907 and reported in 4 Commonwealth Law Reports, page 1497, the High Court refused to determine whether a senator had been validly appointed under section 15 of the Constitution because this was, amongst other things, a question respecting a vacancy within the meaning of section 47. Arising out of that case the Australian Parliament, in the exercise of its power under section 5 1 (xxxvi), passed a special Act to otherwise provide for such questions to be referred to the High Court of Australia sitting as a Court of Disputed Returns. This Act was the Disputed Elections and Qualifications Act 1907. Following its enactment the High Court, in the case of Vardon v. O’Loghlin, reported in 1907, 5 Commonwealth Law Reports, page 201, determined the question arising in the Governor of South Australia case. The present provisions for referring such questions to the High Court sitting as a Court of Disputed Returns are to be found in section 203 of the Commonwealth Electoral Act 1918-73. Those provisions read:
Any question respecting the qualification of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament may be referred by resolution to the Court of Disputed Returns by the House in which the question arises and the Court of Disputed Returns shall thereupon have jurisdiction to hear and determine the question.
The procedure outlined in section 203 provides a proper means of ensuring that complicated questions involving the interpretation of the Constitution can be determined by the highest judicial tribunal in the country, the tribunal which is charged by the Constitution with the function of interpreting and applying the provisions of the Constitution. The questions raised by Mr Vincent Gair’s letter to the President are questions of constitutional law. The answers to those questions in the Government’s view are clear, but if there is a dispute about them quite obviously, on the view taken by one of my distinguished predecessors as Attorney-General, the correct and only way in which the questions respecting the vacancy can be resolved is by the Senate referring them to the High Court of Australia. enator Wilkinson- Was that Senator Green- >d?
– No. It was not Senator Ceenwood, but Senator Greenwood did have some words to say about such matters. On 24 August 1 97 1 , at a time when he was AttorneyGeneral, he said:
I would have thought that where a Senator’s constitutional right to sit in this chamber is conferred by the Constitution, the High Court is the appropriate body charged by the Constitution with the duties of interpretation, lt would be an unreal situation if this Parliament or any one House of the Parliament were to decide whether or not a senator had the qualifications to remain in this chamber. I believe it would be mischievous to embark upon an inquiry in the assumption that this Parliament or this chamber does have that power.
That was said in the course of a lengthy speech by then Attorney-General Greenwood. The position has been put that the constitutional provisions under which this question has been put forward enable the chamber to refer this question to the Court of Disputed Returns, but that and the other provision made by the Act of Parliament in relation to questions respecting a vacancy have been viewed as exhausting the power which the Senate previously had to determine such questions.
– Would you say that again?
-That the provision which has been made by the Commonwealth Electoral Act -
-Section 203, and there are some other sections.
– Do you say that that overrides section 47 of the Constitution?
– I do not say that it overrides section 47 of the Constitution. It could not override section 47. It is a provision under section 47 of the Constitution. Section 47 states:
Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises.
Part XVIII of the Commonwealth Electoral Act deals with the Court of Disputed Returns and states under division 1 which refers to disputed elections and returns: 183.- ( 1.) The validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise. (2.) The choice of a person to hold the place of a Senator by the Houses of Parliament of a State or the appointment of a person to hold the place of a Senator by the Governor of a State under section fifteen of the Constitution shall be deemed to be an election within the meaning of this section, and the provisions of this Division shall, so far as applicable, have effect as if that choice or appointment were an election within the meaning of this Division.
Section 184 refers to the High Court as the Court of Disputed Returns, and there are provisions about petitions and so on, what the powers of the Court would be, inquiries by the Court, certain matters of illegal practices and so on. In Division 2, which concerns qualifications and vacancies, appears section 203. The view was taken, as I said, by a person who later became AttorneyGeneral of the Commonwealth-
– Why do you not cite it to us, and the context?
– Well -
– This is a shabby way to treat anybody you regard as an authority.
– Order! As I anticipate it, the Leader of the Government is trying to protect an element in the judiciary.
– Yes, subject to some comment.
– All right, but the lawyers here know the proprieties of this. The Leader of the Opposition indicates his attitude and I will not rule on the matter.
-Let me say that the view precisely on this point which has been expressed by this most distinguished legal authority is that even though the matter may not be one to be expressed dogmatically, nevertheless the provision in section 203 displaced the former provisions and the use of the word ‘may ‘ is not in the circumstances strong enough to amount to a reservation of the former jurisdiction of the House- and it applies to either the House of Representatives or the Senate. Section 203 means that in respect of such a question this Senate retains a sufficient jurisdiction that where there is a question- and there undoubtedly is here, because the President has put the matter to the Senate- it is within the jurisdiction of this Senate to refer the matter to the Court of Disputed Returns.
It is clear that there is a question and that there is some dispute about the matter being raised here. Last night I read the opinion by the SolicitorGeneral. I also state that an opinion has been given by the General Counsel to the AttorneyGeneral, which I shall read. It is headed:
Re: Senator Gair, Sections 44 and 45 of the Constitution and his appointment as Ambassador.
The document states:
– It is signed ‘Colin Howard General Counsel to the AttorneyGeneral ‘.
– Did he have the benefit of the views of the Minister for Foreign Affairs as they occurred today that the appointment took place on 3 April?
– I thank the honourable senator for interpolating because what he has just said illustrates the very danger of the senator’s presuming to come to a judgment on a single statement which has been made in relation to a practice which has been pursued, not only in this case but also in other cases, which does not touch the question at all. If one were to look at and approach this matter in a judicial manner and see how various appointments were made over the years one would realise that the suggestion that the office was created by the statement of terms and conditions, or the signing in the way which the Minister for Foreign Affairs referred, was nonsense. I heard the honourable senator exclaim with some glee and he probably thought: ‘Ah, here is the solution to the problem’. It is not a solution to the problem at all. In the view of the advisers of the Government, based on the practices which have been pursued not only in this case but over decades, the conclusion which the honourable senator thinks he has reached is completely baseless. I suggest caution to the honourable senator. If he thinks he can come to a concluson because of something which was said in that way at question time, or if he thinks that that was some surprise or that in some way it resolves the question, it just shows how dangerous it is for him to be making up his mind on questions of a legal nature on considerations such as that.
– We will see who is right in the end. He is only a designate at the moment.
-I trust that the honourable senator means what he says. He said: ‘We will see who is right in the end’. Here is a question on which the Solicitor-General of Australia and the General Counsel have given opinions showing that there is a vacation of office. On a consideration of the whole of the case and the documentation -
– And the Constitution.
– I thank the honourable senator- the Constitution and the law. Here is a legal question. The Parliament of Australia has provided that when such a question arises, under section 203 of the Constitution, it may be referred to the High Court of Australia. The Government takes the view that the correct course in these circumstances is not that the opinion of one person or another in this chamber may prevail or that there should be a decision along party political lines in the Senate on a question which concerns not only the rights of senators or would-be senators but also the people of Queensland. Indeed, it affects the people of Australia, and the composition of this Parliament. The matter should be determined in the way that has been contemplated by the Parliament, that is, by reference to the High Court of Australia. Mr President, I have indicated to you that the nature of the provision is such that the view has been taken that section 203 and the other provisions I have mentioned have exhausted the power of the Senate to deal with such matters except that when a question arises it may refer such a question to the High Court.
-What meaning does the honourable senator give to the words ‘may be referred “? Does he interpret that as meaning must be referred’?
– No. There are authorities on such a matter. The honourable senator would be aware of the case of Julius v. the Bishop of Oxford and a whole line of other cases which indicate that, in a proper case, ‘may’ virtually means ‘shall’. One might say that there is virtually a duty on a body, in an appropriate case, to take the appropriate action.
– Is the honourable senator suggesting that interpretation?
-I would think that how one enforces it is one question. The other courses that may be taken involve another question. But I would say that there is a plain duty on the part of the Senate in the proper exercise of its authority to refer this question to the High Court of Australia.
– Would the honourable senator suggest why this has been written in the permissive and not in the imperative.
– This is a common matter. Although some question may arise, it may not. Let us suppose that a case was regarded as frivolous or something like that. It may be that in a certain case it may be said that it was not a proper case to be referred.
– But the honourable senator said that the Senate had exhausted its power once it had passed an act. Now he is saying that it has not.
-I have not said that. I said that the view had been expressed that the
Senate’s power to determine the questions for itself had been exhausted.
– That is what I am talking about.
– Yes, and instead -
– Then, later, the honourable senator said there may be cases in which it has not.
-No. If any real question was to be determined, it should be referred to the High Court of Australia. There was no longer the power in the Senate to determine the question for itself. As I said, the view which I have put has been expressed by the highest of legal authorities some time ago in relation to this very matter. One would think that it is a very powerful indication, firstly of the jurisdiction here and secondly, it strongly fortifies the view that, in any event, the power being here, it should be exercised by the Senate to refer the question. What has been the history of the matter? The Senate originally had the power to look at such questions. The Senate has made no determination on such a matter since 1 907. It is true that under standing order 38 there is a provision for a Standing Committee of Disputed Returns and Qualifications. The standing order in that regard reads as follows:
A Committee, to be called the Committee of Disputed Returns and Qualifications, to inquire into and report upon all questions as to the qualification of a Senator chosen or appointed in accordance with section IS of the Constitution or as to the validity of such choice or appointment, and as to the vacation of his seat by any Senator, shall be appointed at the commencement of each Parliament in the following manner:
Such Committee shall have power to send for persons, papers and records. The President shall fix the time for the first meeting ofthe Committee. Four to form a Quorum.
We know that since 1907 that Committee has never met. Such a Committee has been appointed at the commencement of the sitting of each Parliament. One has been appointed for this Parliament. What is the course to be takenIs it to be said that the provisions of section 203 of the Constitution are not to be availed of? Despite the view that there is an exhaustion of the power which was formerly available under section 47 of the Constitution because the Parliament made another provision which now appears in substance in section 1 8 of the Commonwealth Electoral Act, is it to be said that nevertheless the Senate will have its Committee of Disputed Returns and Qualifications inquire into and report upon the matter? When the power under section 47 of the Constitution was originally unimpaired by provision made by the Parliament it was understood that a decision on a matter of this nature was to be a decision made at least after consideration in a judicial manner.
We are familiar with the concept that applies to all sorts of bodies- this applies to a whole host of them- when they are determining questions which affect the rights of persons. It is a rule of infinite application that those bodies are under a duty to approach a decision in a judicial manner. It is possible, even if we did not have section 203 of the Constitution, to have a body approach such a question, even though it may not be a court, in a judicial manner. This is a concept well understood as a rule of conduct applying to administrative bodies and other bodies which have to decide questions which affect the rights of persons.
If we are not to proceed under section 203 of the Constitution, and if we are to ignore the view which has been put that the Senate’s power has been exhausted, does the Senate intend to have this question, which affects the rights of persons, determined in a judicial manner by the Standing Committee of Disputed Returns and Qualifications? It would receive material and opinions, hear submissions and come to a proper decision in a way which is expected of a body concerned with the rights of persons and which is especially concerned with the right to vote- something which affects every person who is entitled to vote in Queensland, candidates who might wish to stand for election and in general the people of Australia. Or is it the intention of those who sit opposite to say: ‘Let us fling away the rule book. Let us forget about a decision arrived at in some judicial manner. We will not have this determined by the body which Parliament has contemplated should determine it’- that is no minor judicial body, but the High Court of Australia ‘We will not even send it to, say, our own Committee of Disputed Returns and Qualifications. But we will do it by Rafferty ‘s rules, and we will sit here and determine the rights of people according to a party political vote’? Honourable senators opposite will, in effect, put up their hands in their party rooms and then come in here and decide questions of the rights of persons, not only of senators or would be senators, according simply to a party political vote -
– Do they do that in the House of Representatives?
-. . . so that Mr Justice Webster can give his opinion on the question whether the power has been exhausted and other persons can exercise a vote on questions which are clearly legal questions. Honourable gentlemen opposite will say: ‘I disagree with the Solicitor-General’ or ‘I disagree with the General Counsel’ or ‘I disagree with the opinion that was given by a former Attorney-General ‘. This is the very situation which section 203 of the Electoral Act was designed to avoid. Are these questions to be determined in this way? The Government wants the highest tribunal in Australia to determine whether it is right or wrong. A lot has been said in this chamber about the correctness of a view that has been put forward. The Government’s view is that the body contemplated by the Parliament in the Act- the High Court of Australia- should determine the question which the President has said needs to be determined. What kind of excuse is to be put up to say that the viewpoint of the Governmentthat the decision should be made by the High Court of Australia- is not to be accepted? Are honourable senators opposite to say: ‘No, we do not want this matter determined by the High Court of Australia. We are going to do it ourselves. Let us have a party political vote. It does not matter about the rights or wrongs, or who is correct; let us have a party vote and let us in some way determine this question’? If they do that, they will set a precedent which will break that which has prevailed for nearly 70 yearssince 1907. It could be done then because then there was no section 203; but since the provision was made by the Parliament there has been no endeavour by this Senate to determine any such question. As questions have arisen, they have been dealt with by the High Court of Australia. Is this Senate now to embark upon a course which means that it will decide these questions- legal questions affecting rights and especially the right to stand or the right to vote- and that they will be determined here on party political lines? Where is it to stop? Are we to say that because one side has a sufficient majority in the place it can do whatever it likes and exclude other persons, ignore disqualifications or alleged disqualifications which might arise, and just carry on as if legal rights can be determined on a party political vote? If that is started and honourable senators opposite thus refuse to pursue the contemplation of Parliament, which may be further than the contemplation of Parliament, that the only way such questions may be dealt with by this
Senate is by referring them or not referring them, then we will start on a road which is away from the rule of law and from the practices which have been accepted on all hands in this country and will determine to use naked numbers rather than appeal to the rule of law. I put this to you, Mr President: You raised a question. You said that there was a question to be determined. What warrant, what justification, would you, Mr President, have for not saying that this question should be referred to the High Court of Australia?
– I hope that is a rhetorical question.
-I put it to you, Mr President. I put it to each of those who hold positions of responsibility in this chamber.
– We all do.
– Yes. In varying degree all hold positions of responsibility; but, at the very minimum, all hold positions of high responsibility. What justification is there for not following the course prescribed by section 203 of the Electoral Act? This clearly comes within the terms of section 203. To avoid this very kind of happening the Parliament determined that there would be a procedure as set out in section 203, and now comes a case. But honourable senators opposite say: ‘Because of some political advantagewe happen to have the numbers- let us just decide it on political lines; let us have a vote’. That is what they will do if they do not choose the proposed course. The question which has been put to this chamber by the President is covered- manifestly covered- by section 203. I put it to the Senate that that is the only proper course in these circumstances. It may well be so on the authority to whom I have referred -
– Who is that authority?
– The honourable senator asks me who is that authority. If I do not tell him, it may indicate that I am not anxious to answer. But I feel that I ought to answer him. The author of that opinion was Garfield Barwick. It was given on 2 February 1952. The Senate ought to be cognisant of the fact that the Parliament has otherwise provided in terms of section 47. The provision that it has made is wise and proper. I suggest that those who were responsible for the passage of that legislation would regard it as unthinkable that in a situation such as this the Senate would not carry a motion to refer this question to the High Court of Australia so that it can be determined according to the rule of law and not according to the rule of the numbers which happen to prevail in this chamber.
– For some 38 minutes we have listened to a very interesting piece of advocacy by Senator Murphy, the burden of which, as I understand it, is that the Senate ought to do certain things in accordance with the motion he has moved, because to do otherwise would be to vote on political lines. I ought to make it quite clear from the outset, as I have on numerous occasions, that we in the Liberal Party do not caucus, and no Liberal senator is bound to vote on political lines in this chamber on any question. I will go further As far as it is within my power to direct- I do not believe I have such a power- I now state quite categorically that I would direct every Liberal senator to vote upon this question according to his conscience, and under no circumstances to vote on this matter according to his political affiliation. If he did so he would not only be unfaithful to his political allegiance but he would be untrue to his position as a senator in still a free society. I would be shocked to think that the 20 Liberal senators here would vote merely upon miserable, narrow political lines. As always, they will vote according to their belief that they are putting their vote where their vote ought to go as a matter of principle.
As I said, we have had from the AttorneyGeneral a very interesting discussion which lasted some 38 minutes. I rather felt a bit sorry for Senator Murphy because, strange as it may seem, I like him very much personally. I should not say ‘strange as it may seem’ but it is strange when one considers the impression that gets abroad. But I do like the Leader of the Government as a person. Therefore I feel somewhat sorry for him. From the little I read of the media, I saw that last Wednesday morning he was presented as the new colt. This magnificent horse they had found to win the Grand National, the Grand National being the event in this chamber. They had found a new colt. I do not know what he was previously but I think by last night that colt had been gelded and had turned into a draft horse, and this afternoon was floundering in a bog and a mire attempting to get out. For that reason I am rather sorry for the AttorneyGeneral. For 38 minutes he floundered and wandered around in this bog and this mire. He knows, as does every other honourable senator in this place, that the facts are so much against him that he has to go back to the law. That is an old trick on which every person who practises in the courts relies. One always gets rather suspicious when someone relies too much upon the law. It is reasonable evidence, at least to those people who practise in the courts, that the case is pretty soandso shaky and your facts are pretty crook. The facts in this case are so open and so well known- it is the Watergate situation again. It is the trick that did not come off. So to justify his action the Attorney-General goes back to the law.
-What about the facts?
-1 will come to the facts shortly. The facts are well known. They have been the cartoonists ‘ dream for some days. The media has had an absolute bonanza because, as the facts became known, the Government looked more and more foolish. The Government has to extricate itself from this situation. So what does it do? lt puts up a number of specious, almost phoney, arguments which are alleged to be legal arguments. Senator Murphy says: ‘I come in here with an opinion from the Solicitor-General and one from my general counsel and I have one from somebody else, and I tell you that that is the law’. He does not say: ‘I put forward the argument or I attempt to persuade you’; he says: ‘I tell you’. With respect, Senator Murphy has the right to argue his point of view and to persuade in this place, but he certainly does not have the right to tell.
– He did not tell; he just told you what the Solicitor-General said.
-Thank you, senator; that makes it quite clear. I am delighted that Senator Murphy at last has realised the enormous weight which is embodied in the opinion of the Solicitor-General. I remember an occasion a year or two back- I have not looked up the facts; 1 am relying on memory- when we had in this chamber a very great argument which extended over a day or so in relation to standing order 448, as I remember it. At that time an opinion was produced from a Solicitor-General of the 1 930s. 1 do not know whether it was Sir Robert Garran or Sir George Knowles. I think an opinion was put up by Mr N. H. Bowen, as he then was, which, I think, was supported by the then SolicitorGeneral whose name escapes me.
- Mr Mason.
-Mr Mason, who I understand is now a distinguished judge of the High Court. What did Senator Murphy say on that occasion? He said: ‘How dare these people intrude upon the procedures of the Senate. We have a right under section 23 of the Constitution’ I cannot recall whether that is the correct section; I do not think it is relevant anyhow- ‘to come to the decisions the Senate wants. What right have these lawyers to tell honourable senators these things’. I see that even Senator Murphy is laughing. He is doing so because he recalls the incident. I only wish I had enough time to do what I did on one previous occasion and read as my speech on this occasion the speech that Senator Murphy made on the previous occasion. I would have sounded very persuasive, because on that occasion the honourable senator won. So if two or three years back the opinions of Solicitors-General, AttorneysGeneral, past Solicitors-General and distinguished lawyers were of no account because the Senate ‘s will ought to prevail, why should the position be different today? However, 1 do not want to get involved in this interesting and technical but sterile and arid argument as to the effect of section 203 of the Constitution.
Supposing the Senate voted against this proposal. What will happen then? What will the Senate do if this matter is not referred to the High Court and then, as was alleged this morning, Senator and/or Mr and/or the honourable Vincent Clair Gair decides that he no longer desires to reside in Dublin and he walks through that door at 2 p.m. next Monday and takes his seat somewhere on the Opposition benches?
– Why should he take his seat over there? They expelled him.
-He can take his seat on the Government side of the chamber because the Government bought him. What will be his position if this matter has been referred to the High Court? What happens if Senator Gair, whom I still believe to be a senator from Queensland as at the time you made your statement, Mr President, walks through the chamber door when the Senate meets on Monday? What do we do? Do we say: ‘Senator Gair, you can sit there while the High Court ruminates’, or do we say: ‘Senator Gair, you may not come inside’. Mr President, this is a heap of nonsense. This is supposed to be the Senate, a part of the Parliament of Australia. In old fashioned English terms it is part of the High Court of Parliament. It is proposed to refer this matter to the High Court, but what do we do if that rotund figure should walk through the door when the Senate meets on Monday? It is not on. It is unreal. While no doubt it is a very good exercise which allows Senator Murphy to indulge in the realms of fantasy and which allows him to quote sections of the Constitution and sections from the Commonwealth Electoral Act, it is an unreal situation because it does not come to the nub of the question. Therefore, I move as an amendment to Senator Murphy’s motion:
Leave out all words after ‘That ‘, insert ‘That the Senate, in pursuance of its powers under section 47 ofthe Constitution, resolves
that, at the time that the President made his statement on 3 April 1974, Senator Gair had not resigned his place in the terms of section 19 of the Constitution and he was therefore, at the time of the statement, a senator for Queensland and accordingly, at the time of the statement, the Senate was entitled to regard Senator Gair as a senator for Queensland;
that there is abundant evidence that the Prime Minister and his responsible Ministers knew and intended that Senator Gair would cease to be a senator by resigning his seat in the Senate in the terms of section 1 9 of the Constitution;
that, following the issue of a writ by the Governor of Queensland for an election to fill 5 vacancies in the Senate, in compliance with a request from the Prime Minister, the Government’s attempt to assert that Senator Gair had vacated his seat under section 44 or 45 of the Constitution on either 1 4 or 2 1 March 1 974, and did not now need to resign as originally intended, deserves the gravest censure and the Government should resign.’
It is as simple as that. You ought to resign. I will work through what I have said in my motion. In the Senate yesterday, Mr President, might I say with respect, you put down a very proper statement of the facts of the situation. I think it is accurate to say that at the time you made your statement you had neither been notified of the death of Senator Gair nor received a resignation in terms of section 19.
As I understand the burden of your statement, you just did not have the capacity to notify anybody. You had not the capacity to notify the Senate, let alone the Governor of Queensland, that a vacancy existed in the Senate for a senator for Queensland. That is as I understand the burden of your statement. You went on to say that Senator Gair had made certain assertions that he might no longer be qualified and that that was not for you to pass judgment thereon. As you properly said, in my view, that is a matter upon which the Senate must take judgment. In the second leg of my motion I state that there is abundant evidence that the Prime Minister and his Ministers knew and intended that Senator Gair would resign in the normal process. One of the few advantages of the Prime Minister’s weekly Press conference, or what passes for a Press conference, is that occasionally there is some interesting information afterwards. On page 2 of the transcript which I have of the Press conference of Tuesday, 2 April, the following appears:
Question- Prime Minister, has Senator Gair officially accepted the position?
Prime Minister- Yes. He has not, I understand, resigned from the Senate yet.
That was said on Tuesday. I do not know at what time it was said but obviously it was before the
Premier of Queensland trumped the ace. At that stage it was said that Senator Gair was going to resign. At page 5 of the transcript this appears:
Question- Can you tell us, is there still time between now and 18 May to have the sixth vacancy elected in Queensland?
Prime Minister- The Queensland Government, if the Queensland Legislative Assembly is not sitting, or the Queensland Legislative Assembly if it is sitting, can make an appointment to fill a casual vacancy. The replacement is made at the first federal election after the occurrence of the casual vacancy in the Senate. The balance of Senator Gair’s term will be taken by a person elected on 1 8 May.
Question- That depends on when Senator Gair retires. Do you know when that will be?
Prime Minister- No.
Obviously the whole arrangement was to be brought to a conclusion by a resignation and there is no escaping from that factual situation. It was to be brought about by a resignation directed to the President in terms of section 19 of the Constitution. There is no doubt about that. The facts speak for themselves. After Mr BjelkePetersen did his thing this week the Government was in a desperate situation. It had tried, it had succeeded, and then it had fallen flat on its face. How was the Government to get out of this dilemma? I suppose the first thing that was said by Government supporters was: ‘We failed on the facts. What is the law now?’ One would have thought better of these great constitutionalists who seem to have solicitors-general, general counsel and about 200 lawyers in the AttorneyGeneral’s Department to help them. One would have thought that they would have canvassed the law first instead of waiting for a blunder to occur and then trying to find whether the law could help them out of it. But still, what did they do?
The answer is in my amendment. The Government now attempts to assert that Senator Gair vacated his seat under section 44 or 45 of the Constitution. That did not go off too well last night with Professor Lane, who was described by Kerry O’Brien as an expert. The Government cannot deny what he says because the Government is very close to the media and it would not like to say that Kerry O’Brien would not tell the truth. Kerry O’Brien said that Professor Patrick Lane of Sydney University is an expert in constitutional law. On a media man’s say-so he produces an expert- Professor Lane. I have no doubt that Professor Lane is a man of great reputation. He is certainly well acknowledged within the profession as a man who knows his subject.
– He did not even know what the facts were.
-Yes, I think he did. He knew what the facts were.
– Is he a member of the Liberal Party?
-1 think it is unfair to ask whether he is a member of the Liberal Party. Do I ask whether the persons from whom you obtain your opinions are members of a political party? I think that is an unfair question to ask about a person who has given an opinion in a legal capacity, providing he is not in this place. When a lawyer in this place gives a legal opinion, of course that opinion is suspect because he sits in here as a politician; but to say that a lawyer who expresses a view outside Parliament has that view coloured by his political affiliations is unfair to the profession. What did Professor Lane say? As I understand the transcript he said:
The point in issue is just when Mr Gair resigned. In all events I suppose we can call him Mr Gair from now because if nothing else, he has formally resigned today . . .
Admittedly that was incorrect. He went on:
But the Government is setting up a different case, a rather preposterous case that since March 14 or possibly March 20 -
I wish the Government would make up its mind about which date it was-
One can hardly describe Senator Gair as the man who never was. I suppose he is the man who never is. Professor Lane went on to make this very interesting comment:
There’s another more drastic consequence, Sir Phillip Game sacked his Ministry in 1929, notwithstanding that the Ministry the lay Ministry had control of the House and Sir Phillip Game sacked his Ministry because said Sir Philip Game, his Ministry wasn’t obeying the law of the land. Now Sir Paul Hasluck, the Governor-General if he wished, in the exercise of his undoubted discretion, could call his Ministers to task and suggest to them that on their own admission since March IS or March 2 1 they have put into Parliament a man who just shouldn’t be there.
– Utter nonsense.
-‘ Utter nonsense’ says the Attorney-General. He cannot have it both ways. Either Senator Gair was properly in this chamber when he was voting here on Tuesday night of this week or he was not properly here. If the Attorney-General likes to assert, and if the Government likes to assert, that Senator Gair was not properly here, then they ought to have known that he was not properly here. Whether or not they knew is irrelevant. They ought to have known, and that is as bad as knowing and not disclosing.
– You knew he was an ambassador; you heard it yourself.
-I did not know. It was alleged he was an ambassador. It is all very well for Senator Murphy to say that I knew. If Senator Murphy does not know the difference between knowledge and allegation, he needs a dictionary if nothing else. There may have been allegations and there may have been rumours, but as I understand the proposition there was no real knowledge of it in the community until the Prime Minister disclosed it in the House of Representatives on Tuesday. That is when it came to my knowledge and that of other senators on my side of the chamber and of the community in general. But the Attorney-General knew or he ought to have known that he was permitting to sit in this chamber a person whom he now alleges- and wishes the High Court to rule- had no right to sit here. That is the gravamen of our charge. It is no use Senator Murphy saying that he did not know. He can say he did not know or he can say he ought not to have known, but he cannot have it both ways, and that is what he is attempting to do. That is why this whole exercise of the Government to have the matter sent off to the High Court is nothing but a smoke screen to cover up its political ineptitude, to attempt to have the facts swept under the carpet, to have the political consequences of this very smart trick that did not come off buried under some formal legal process.
It is one of the oldest tricks in the book, that when a government has a problem it sets up a royal commission, gives it a tangled set of terms of reference, the royal commission can go off into limbo and go on and on and the thing is forgotten. Of course, the Government wants this forgotten. It must be haunting honourable senators opposite. They cannot like this situation at all. They do not like it. They are all embarrassed. They would be ashamed of themselves if they had the capacity to be ashamed. They do not like what they did. They not only do not like what they did, they are annoyed that it did not come off. So what do they do? They take refuge in the High Court. As far as we are concerned, they are not going to take refuge there. They will stand up in this chamber and be counted because whatever else happens within a parliamentary system, the executive arm of government is still accountable to parliament and that is what this is all about. The Government is not accountable to the
High Court; it is accountable to this Parliament of Australia. That is what honourable senators opposite are really all about. They are trying to take away our capacity to bring them to account by taking the matter off to the High Court. We- and I speak for the Liberal Party- will do our utmost to see that that does not happen. That is the very simple reason why the government must be called to account and it ought to be called to account here. That is the reason why I moved the amendment.
We can sit here all day, if we like, and indulge in legal argument, quote from sections and go through the documents. There have been some odd answers to questions as to appointments. There have been a lot of odd factors about this. But whatever else honourable senators in this place have to decide, they have to decide between 2 simple propositions, either the one of Senator Murphy’s, which is a proposition to sweep this whole nagging question under the carpet, sweep it off to the High Court where it will get lost, or the one to have enough courage to take it on and deal with it as senators. If honourable senators opposite are great believers in open government, let us deal with it here.
– If it goes to the High Court–
-Oh, yes, it will go off and the lawyers will argue day after day. They will argue about this and about that, and that is the whole idea. Get it out of this place; get it out of the public area; get it into the courts; get it into some other place so that every time we attempt to ask a question here somebody will say: ‘Oh, but that is sub judice, that ought not to be raised ‘. That is the oldest trick in the book. I cease as I commenced: The Government is so short on the facts that it is taking refuge in the law. I believe that the Senate has a duty and a responsibility under section 47 of the Constitution for itself to take on board this very vexed question. That is why I moved the amendment. I now table a signed copy ofthe amendment.
- Mr President, I propose to take the Leader of the Opposition (Senator Withers) at his word when he states that honourable senators opposite are not bound by any party allegiances in their attitude towards the proposal that has been put to the Senate by Senator Murphy but will vote according to their conscience. That being the case, I assume that they approach this question with an open mind and will want to listen to argument as to why they should support the proposition that has been put to them by Senator Murphy. The first question that occurs to me- and I think that it should occur to any people looking at this matter with an open mind- is that if the Opposition is so overwhelmingly confident that the facts are all on its side, why does it worry about having those facts examined by the highest court in the land?
I do not know in what courts Senator Withers spent his time before he came to this place or since he has been in this place, but he has certainly given the Senate a curious notion of what goes on in the High Court. He says that the proposition that we put before the Senate is a proposal to sweep all the facts under the rug. I suggest to him that he should examine the very provisions of the Commonwealth Electoral Act which has been referred to by Senator Murphy. Is Senator Withers seriously suggesting that the facts will not get a proper airing or will not be properly examined in the High Court or will not get just as accurate, detailed and microscopic an examination as has been sought to have them given in this place? Section 208 ofthe Commonwealth Electoral Act reads:
The provisions of sections one hundred and ninety-three, one hundred and ninety-five, one hundred and ninety-seven, one hundred and ninety-eight, two hundred, two hundred and one and two hundred and two shall apply so far as applicable to proceedings on a reference to the Court of Disputed Returns under this Part of this Act.
If the honourable senator would refer to the various powers which the High Court may exercise in considering any of these applications- I omitted to refer to the most important one of all- he will see that section 206 states:
On the hearing of any reference under this Part of this Act the Court of Disputed Returns shall sit as an open Court and shall have the powers conferred by section one hundred and eighty-nine of this Act so far as they are applicable . . .
If Senator Withers seriously believes that if and when this matter gets to the High Court, which is an open court, the facts will not be properly examined by the Court, I suggest that he should have a look at section 189 which is specifically invoked by section 206 that I have just read. Section 1 89 says, inter alia:
1 ) The Court of Disputed Returns shall sit as an open Court and its powers shall include the following:
That would include any documents that have been produced here and, one assumes, any documents which the Opposition suggests are being suppressed. In other words, the facts will be submitted to an even closer scrutiny in the High Court than they would get in this Parliament. Section 1 89 continues: (iia) To grant to any party to a petition leave to inspect in the presence of a prescribed officer the rolls . .
The other provisions make it quite clear that the suggestion by Senator Withers of a sweeping of the facts under the rug, in what can be termed only as a gesture of contempt of the High Court, is a travesty of what would go on in the High Court. Another most important safeguard is contained in section 205 of the Act, which states:
The Court of Disputed Returns . . .
Which, for the purposes of this section, is defined in this Act as being the High Court -
This is what we get. This is what we are suggesting. What is undemocratic and what is there in this proposition which we are putting to the Senate which will not ensure that this matter is properly ventilated and properly examined by the best legal minds in this country? We have heard gibes or implied gibes from Senator Withers at the legal advice which has been tendered to the Attorney-General. I take it that Senator Withers is casting some sort of a slur on the SolicitorGeneral or on the counsel assisting the AttorneyGeneral. If honourable senators opposite are not satisfied with this advice or if they believe that there is something partial about it, one would think that they would hasten to embrace the proposition that the matter should be decided by the most disinterested minds in the community. 1 heard one or two interjections suggesting, in a further slur upon the High Court, that somehow or other the judgment of this Court could not be trusted because, as one interjector asked: Who appointed the members of the High Court? With 2 exceptions, the 7 members of the High Court were appointed by our opponents. I am certain that one would never hear from Senator Wright, for example, any suggestion that we would get from the High Court anything but an impartial decision. So our suggestion is a proposition which has much greater fairness and much greater impartiality about it than any suggestions that the matter be decided in the heat of Party political passions, according to numbers or in any way that would not ensure a proper hearing of this matter.
We have heard also from Senator Withers a suggestion that Senator Murphy in this exercise today is involved in some sort of exercise of swallowing his own words- words which he used in argument on a previous occasion. I hope that before this debate is over we will hear something from a previous Attorney-General- namely Senator Greenwood- who was referred to by Senator Murphy in his speech. It will have become perfectly clear to honourable senators that Senator Greenwood will be involved in a lot of word swallowing if he is to oppose this motion because, as Senator Murphy made perfectly clear, in a contribution to a debate in this place in August 1971 Senator Greenwood wenton record as saying that the appropriate place to have a matter of the type that we are discussing today resolved is the High Court of Australia.
– What matter was then under discussion?
-The matter then under discussion was whether the appointment of an Assistant Minister involved some sort of vacating of his office as being an office of profit under the Crown. I am not suggesting for one moment that we are discussing the same problem now. But Senator Greenwood stepped way outside any application to that matter when he said, in the words which have been quoted by Senator Murphy:
I would have thought that where a senator’s constitutional right to sit in this chamber is conferred by the Constitution, the High Court is the appropriate body charged by the Constitution with the duties of interpretation.
That precise question will be involved if this matter is not resolved. Are we to hear from Senator Greenwood today that what applied in August 1971, when it suited his case, does not apply in April 1974, when it does not suit his case? If that is so, let us not have any further gibes from Senator Withers about Senator Murphy having to swallow his words.
– Read the rest of it.
– I am invited to read the rest of it. These words follow immediately after that statement by Senator Greenwood:
It would be an unreal situation if this Parliament or any one House of the Parliament were to decide whether of not a senator had the qualifications to remain in this chamber. I believe it would be mischievous to embark upon an inquiry on the assumption that this Parliament or this chamber does have that power.
That brings me to the nub of the amendment moved by Senator Withers. He has not circulated copies of the amendment, but as I heard it the opening words which it seeks to have inserted were:
That the Senate, in pursuance of its powers under section 47 of the Constitution-
– Copies have been circulated.
– I have a copy now. I withdraw what I said. The first words which are sought to be inserted are:
That the Senate, in pursuance of its powers under section 47 of the Constitution resolves . . .
Let us look at section 47 of the Constitution, which has already been referred to by Senator Murphy. It states:
Until the Parliament otherwise provides, any question . . .
That is very wide-
I submit that under the provisions of the Electoral Act which have been referred to, and some which were just touched on, the Australian Parliament has otherwise provided, and it has left out nothing in providing. I refer to sections 203 to 208 and then refer back to section 183 and the following sections. Every aspect of the powers referred to in section 47 of the Constitution has been provided for by the Parliament.
This phrase ‘Until the Parliament otherwise provides’ permeates the Constitution. It appears in many other sections of the Constitution as well as section 47.I have looked through the books in an attempt to find in the decided cases some words from the High Court to define what is meant by ‘Until the Parliament otherwise provides’. It is a curious fact that there is not to be found, or at least not to be found by me- I stand corrected if anybody’s research is more thorough- any cases on the meaning of this phrase ‘Until the Parliament otherwise provides’. I can conclude only that when the Parliament has otherwise provided, either under this section or any other section of the Constitution, it has been accepted by everybody affected that that resolves the question; one does not then look at the Constitution but one looks at the legislation until the Parliament has otherwise provided. I am suggesting that the matter is totally exhausted by the provision in the Electoral Act of machinery for meeting every possible challenge and every type of situation in which there is some doubt about qualifications, some doubt about vacancies or some doubt about the sort of matter that we are considering today.
So there is this illusion enshrined in the opening sentence of the amendment- an amemdment which speaks of the Senate doing something in pursuance of its powers under section 47. But the powers under which the Senate should now act are the powers conferred by the Electoral Act. By way of interjection Senator Byrne asked Senator Murphy why the permissive word ‘may’ instead of the word ‘shall’ is used. I am prepared to grasp that nettle. I am prepared to admit that the Senate may or may not take the steps that we are suggesting. But I submit that it may not take any other steps.
The Senate may not decide the matter itself when there is a procedure under section 203 to go to the High Court of Australia. It can, if it likes, with the use of numbers, decide that it will not take this procedure of referring the matter to the High Court. But, of course, there are other provisions under section 185 etc., which make it possible for an individual then to lodge a petition and to challenge the result of an election after the election has taken place. Of course, this may be a method which appeals to the Opposition more than the method which we are suggesting. But is that not a much more messy way of approaching this problem? Is it not much better to clear up any doubt which may exist before the election takes place? That, I suggest, is the real purport of the word ‘may’ in section 203. The Parliament did provide a method- a neat, tidy and eminently fair method when read along with the other sections in this Part of the Act- whereby questions of this nature might be resolved in advance of the election taking place. All we are inviting the Senate to do is to take advantage of this eminently fair method of resolving this matter. Anybody who is interested, as I have said, may be represented before the High Court at the hearing. It will be an open hearing. The Court will have the opportunity of calling for all the papers, of inviting any witnesses, including, if necessary, Mr Gair himself, or the Prime Minister ( Mr Whitlam ) or the Attorney-General.
What is it that the Opposition fears? All we heard from Senator Withers was the statementwhich, I must say, struck me as an outrageous statement for a lawyer to make- in that we were seeking to refer this matter to the highest tribunal in the land in order that the problem and facts could be swept under the rug. Is that really what the Leader of the Opposition sees as the function of the High Court of Australia? He also said that because we found that the facts were against us we were resorting to the terrible strategem of going to the law. This also strikes me as a most extraordinary statement, especially coming from a lawyer. What does it mean? Does it mean that we should have no regard for the law of
Australia; that we should go ahead if we think the facts are with us, and if we think we have the numbers to make that stick we should not bother about the law? Is this the proposition that came from the Leader of the Opposition in this place, himself a lawyer? If so, and if members of the Opposition are, as he assured us, genuinely to vote today according to their conscience and not according to the numbers, I cannot see how they can fail to reject his substitute for an argument and pay some regard to the arguments which have been advanced from this side of the chamber.
Section 203 has been in the Commonwealth Electoral Act since 1907. It was inserted in its present form in 1918, but a section in almost identical words- identical except that ‘qualifications’ read ‘qualification’- was in the Act in 1907. It was inserted, as I understand it, after the confusion arising from the case of Vardon v. O ‘Loghlin and was specifically put into the statute by this Parliament in order that provision and machinery would exist for the resolution, the harmonious and orderly resolution, of a problem just such as this. Part XVIII of the Act, from section 183 to section 208, provides an elaborate code designed to meet every sort of situation of this kind that one can imagine.
What is the outrageous proposition advanced by the Government? In effect we say: Let an independent, highly respected- highly respected by me anyhow, no matter what Senator Withers may say about it, and highly respected, I think, by Senator Wright and other lawyers on the other side of the chamber- and impartial body examine all the facts about which there are so many heated passions in this place. Let the Court examine witnesses and documents and then come down with a definitive ruling on what is the real state of affiairs. We on this side have no guarantee as to how the Court will find. If the facts are so overwhelmingly in favour of the Opposition, as the Opposition suggests, what has it to fear from this tribunal looking at those facts and giving a ruling? That is all we are asking. We are asking that the highest court in the land be given the opportunity to examine these facts, to examine the law and then to bring down a definitive and authoritative ruling on the matter which will satisfy this Parliament and which will satisfy the people of Australia.
– For many years I have been a student of political tactics and strategy. I studied at the feet of 2 very eminent professors in this field. One was former Senator Kennelly and the other was Mr Fred
Riley, the secretary of the Manufacturing Grocers Union in Victoria. One thing that they taught me can be summed up in a common expression- ‘when you’re done you’re done’. Mr Riley frequently used this statement: ‘When you are beaten you crawl into a cave, lick your wounds and come out and fight on some other occasion’. I think that the Government would be well advised to accept that advice. What it ought to do is to cut its losses. It ought to say: ‘All right, we have been done’. What it ought to do is to say that there will be 5 senators to be elected in Queensland, and go on from there. All this backing and filling, all this twisting and turning, does not get it anywhere. It increases the public contempt into which its manoeuvres have taken it. My advice- the Government will not accept it- is this: Accept the situation; forget all the talk about court cases and everything else and let the people decide. The people are going to decide.
One thing that has interested me is the number of people who wanted to claim the credit on the morning after the first big event. I read in the newspapers that Mr Whitlam had been responsible for this masterly political stroke. I read that Senator Murphy had been responsible for it. I read that Senator O ‘Byrne had been responsible for it. I have seen that Senator Wheeldon has been accused of being responsible for it, but he has emphatically denied -
- Mr Deputy President, I raise a point of order. The Senate will recall that this morning Senator Wheeldon made a personal explanation to the Senate disclaiming any association with the statement that Senate McManus is now repeating.
The DEPUTY PRESIDENT (Senator Webster)- Order! There is no substance in the point of order.
– I point out that the sentence which I was not allowed to complete was that Senator Wheeldon had been accused of being in it but Senator Wheeldon had told me that he had nothing to do with it. I suggest that our friend, Senator McLaren, be a little more careful before jumping up with points of order. We have been told that Mick Young was responsible for this masterly political stroke; that Eric Walsh was responsible for it; and that a character named Hogan, who has been hanging around Parliament House in their company and who I understand is on the verge of being appointed to Mr Whitlam ‘s strategic and elections operations secretariat, had a lot to do with it. But that was on the first morning. All of a sudden, when the news came through of what had happened in Queensland, nobody wanted to own the unwanted baby; everybody was trying to leave it on somebody else’s doorstep.
I am interested in this office of strategy and election tactics which has been set up by Mr Whitlam and which is being paid ibr by the Commonwealth. It appears to have some interesting functions. One of the functions of Messrs Young and Walsh is to conduct a salon of an evening between 5 o’clock and 6 o’clock, in a place frequented by members of the Press at that period, where hospitality is freely available and advice is freely available on how they should write the stories. Everybody knows the way it is done: ‘Come in, have a drink. You should not be writing that this way. This is the way you ought to write it’. There are delicate suggestions that if they do the right thing- and pressmen have got diplomatic appointments abroad- pressmen will be given free trips abroad on the two 707 aircraft that are to be bought for the purposes of the Prime Minister. I appreciate that this is an extraordinary kind of operation, but the attitude appears to be that this office of strategy and election tactics was justified in the last election when it nobbled an eminent ecclesiastic and that it is justified by its organisation of libel cases against the propaganda of the Democratic Labor Party at election times. Now it has entered into the field of diplomatic appointments. Who knows which of us may not secretly have a diplomatic appointment at the present time.
– That is my problem.
– I know. Senator Murphy said in his speech yesterday:
If one cared to look carefully into the matter one would probably find previous occasions, although not rarely, when there has been a vacation of office under the relevant sections of the Constitution. In the normal run of things the person has resigned from the Senate, and no one has worried about looking closely at when offers were made, what was done about them and when the post actually became vacant, because it was immaterial.
My God! Fancy the Leader of the Government in the Senate (Senator Murphy) saying that it is immaterial at what time a person resigned to accept an office of profit under the Crown. It is immaterial; it does not matter. People may be here, he says, who have accepted an office of profit under the Crown and are disqualified as senators. He says: ‘Why worry about it? It has happened before today’. I am in a difficult position. How do I know that when my friend Senator Wheeldon is speaking and voting in the Senate he may not have been appointed as the first Australian Ambassador to North Vietnam? How do I know whether other senators may have received appointments? How do I know that
Senator Georges has not secretly been appointed chairman of the Turtles Board? How do I know that some of my other friends have not received appointments, for example, that Senator McLaren has not been appointed in charge of the Egg Board? According to the Leader of the Government in the Senate it is not a matter to worry about, that secretly a member of this Senate may have been given an office of profit under the Crown. If it is not anything to worry about, had not the Senate better close up shop? We do not know who is a senator and who is not. That is the opinion of the Leader of the Government in the Senate. He placed it on record this afternoon that it was none of his business if he knew that a man who was not a senator was voting in this place.
– I did not say that.
- Senator Murphy said he had no responsibility to inform people that Senator Gair was not a senator. He admitted that he had informed Senator Gair that he was not a senator. He admitted that he told Senator Gair that he was not qualified to come here and vote. Yet he admits that he sat in his chair and saw Senator Gair vote. Senator Gair voted in 9 divisions in the period when Senator Murphy said he was no longer a senator. He watched turn do that and says that as Leader of the Government in the Senate he had no obligation to stop him or inform the President. Senator Murphy also says that as Attorney-General, the man who is supposed to look after the laws of this country, he sat in his place and watched a gross breach of the law happen and did not regard himself as having any responsibility to do anything about it. This is a matter that has to be taken further. Can the Senate tolerate -
-Take it to the High Court.
-No. The other matter may go to the High Court but the matter of Senator Murphy’s conduct is a matter which has to be considered by the appropriate tribunal. Here we have a case where the Attorney-General of the Commonwealth, the Leader of the Government, says straight out that it has happened before and can happen again. Senator Murphy’s view is that because the Government does not choose to notify the Senate or the people that a person has been appointed to an office of profit under the Crown, he has no obligation to stop that person from coming into this Senate, acting as a senator, receiving emoluments from the Government and doing all the things a senator is supposed to do- at a time when he is breaking the law and doing those things which are an insult to this Parliament. I express my regret. I think that the President of this Senate was insulted by the Whitlam Government when he was not informed by the Whitlam Government that it had made an appointment which in its view disqualified a person from being a member of this Senate. I think the Senate has to defend its rights in this matter. It has to defend its prestige. If this kind of conduct is to be tolerated then the Senate should be abolished. Unless we can rely on the Leader of the Government in the Senate and on Ministers of the Crown to defend the rights, privileges and honour of the Senate, where are we? We were told by Senator Murphy when I asked the first question today that Senator Gair ceased to be a senator on 14 March. Senator Murphy has now qualified that and said that Senator Gair ceased to be a senator on 2 1 March. The Minister for Foreign Affairs (Senator Willesee), who should know, has told us today in definite terms that Senator Gair occupied his official position as from yesterday.
– No, he did not. He said he was Ambassador-Designate.
– I accept the correction. What he said was that he was an AmbassadorDesignate, which makes worse the position from the Government’s point of view because the Minister for Foreign Affairs says that he is not the Ambassador. If that is so, what is the purpose of taking a case to the High Court when the relevant Minister who has the right of issuing the document appointing Senator Gair says that Senator Gair was appointed by him yesterday as Ambassador-Designate and not as an Ambassador. No wonder an eminent law professor last night said that in this matter the position of the Government was preposterous. We have been told that Senator Gair was appointed as from 14 March. A document was sent out at the wish of the Government on about 21 March or so, or later for all I know, asking the States to prepare for the election of senators. I am advised that in the case of Queensland Mr Bjelke-Petersen’s Government was asked to arrange for 5 senators to be elected. Senator Murphy claims that prior to that document going out Senator Gair was not a senator. That means that there were 6 vacancies, if his view is accepted. Can honourable senators understand anybody trying to bolster up a case by that kind of nonsense? The Government sent out its own document saying that there were 5 vacancies and 5 senators to be elected. The senator himself says that at the time the document was sent out there were actually 6 vacancies. Fancy the High Court being asked to listen to that kind of tommy rot.
We were told that Senator Gair was appointed on 14 March. Now the Government has shifted ground. He was appointed on 2 1 March, according to some. The Minister who has the right to appoint Senator Gair says that he is only a designate, he is not even appointed yet and that he was only made designate yesterday. I believe Senator Gair who says that as far as he is concerned he ceased to be a senator yesterday. After all, he used his parliamentary office as a senator until Tuesday. He came to and went from Canberra on his transport vouchers as a senator. He used the car which he is allotted as a senator. He collected the allowance paid for being in Canberra and he collected his salary. In addition, I believe he told me the truth when I saw him on Tuesday night to ask him not to accept the position. He told me that he could not do what I asked him because he said that he was committed. I said to him: ‘When are you ceasing to be a senator?’ He said: ‘Tomorrow, Wednesday, when I hand in my resignation’. When I asked him when he would become Ambassador he said: ‘In June, because the position does not become vacant until then’.
I appreciate the frankness of Senator Willesee who took the action to cut the Gordian knot when he made it clear that as far as he was concerned, as Minister for Foreign Affairs, Senator Gair did not become Ambassador to Eire, that he has not yet become the Ambassador to Eire. Senator Willesee disagreed entirely with the recital of dates that was given to us by Senator Murphy. In regard to the papers that we have been given Senator Murphy was careful to qualify himself and say that he was not prepared to go on record as saying that all the papers had come to us. I think he was very wise.
– I said ‘all the relevant papers’.
– I think he was very wise to qualify any admission there. Surely when a man is appointed an ambassador or an ambassador designate for this country there is a document which places on record the offer and the acceptance. I challenge this Government to produce the offer and the acceptance in writing. I say emphatically that there must be an offer and an acceptance in writing, and I challenge the Government to produce it. I ask categorically: Has it not been produced because it contains the date of acceptance? That is something that any honourable government must answer. I ask the Government to be honourable and to answer it.
I heard the Prime Minister of this country, who should be an authority, say in another place that Senator Murphy had warned Senator Gair not to come into the Senate. It is an extraordinary situation when the Attorney-General, a Government leader, knows that an individual is breaking the law and that he is doing something which is a dreadful and shameful breach of parliamentary practices, privileges and traditions, and the Attorney-General does nothing about it. Surely he should have told the Prime Minister. Perhaps he did. Perhaps he told Eric Walsh or Mick Young. Perhaps he told Mr Hogan. But whom did he tell? He did not tell anybody. He recognised no obligation to inform the President of the Senate that a non-senator in his view was speaking and voting. What is the effect upon the proceedings. Are the proceedings of those 3 weeks invalid? Did we spend 3 weeks wasting our time because the Leader of the Government had secret knowledge which he decided not to make available? That is the point which I should like answered. Is everything that has been done in the Senate over the last few weeks invalid because a person participated in the proceedings of the Senate whom the Leader of the Government, the Attorney-General, says was not qualified? I believe that we have to ask the Government, or we have to take steps ourselves, to ensure that a procedure is formulated under which, when the Commonwealth appoints any person who is a member of Parliament to an office of profit under the Crown, the President of the Senate shall immediately be notified. I ask any senator here to object to that. Is there any senator who believes that a person should be appointed to an office of profit under the Crown and that we should not be informed and that the President should not be informed? That is elementary, but it is disagreed with by the Leader of the Government.
Mr Whitlam did not appoint Senator Gair because of any feeling he had that Senator Gair should be appointed to the position. Mr Whitlam has demonstrated on many occasions his profound antagonism towards Senator Gair. Since Mr Whitlam became Prime Minister of this country he has taken the opportunity on two occasions to grossly insult Senator Gair. He made a statement which indicated that Senator Gair had been nominated for a knighthood and that he had cancelled the arrangement- which he was entitled to do- but he said so in the presence of the Press with a smile and a sneer on his face. He said that the appointment in his view was the most disgraceful since the appointment of Sir Toby Belch. Now Mr Whitlam pretends that he has appointed Senator Gair to this position out of natural love, affection and admiration. He read a long list of his achievements, and they were achievements for which Senator Gair deserves the utmost credit. But few people will ever forgive Mr Whitiam for the action which he took in the case of a man trending towards the end of a long and admirable career, offering him a position- and I make these words clear- not to honour him but to destroy him.
– I say that it was a calculated act to destroy a political opponent, by a man who in these matters has no principle or decency at all. I want to say only this in conclusion: I will remember Senator Gair not for what happened in the last three or four days but for the many honourable things that he did in a career during which he earned the admiration of the people of Queensland and, later, of Australia. I have made clear to him my view of what happened in the last few days, but I will remember him for what happened before the events of the last few days. The person whom I will never forgive for what was done is the man who, in the way the Prime Minister did, coldly and calculatingly set to work to wreck the reputation of a man whom he hated for political reasons.
The final thing I say is that this matter will not be settled here or in the High Court. There is only one place to settle this and that is before the people. Some years ago I read that when Cromwell became tired of the Parliament and said that it was not working effectively he walked into the Parliament of those days and said: ‘You have been here too long for any good that you do. In the name of God, go’. That is what I say to this Government.
– We have just heard an oration from the Leader of the Democratic Labor Party (Senator McManus) during which he at no time addressed himself to either the motion or the amendment. It was an address typical of Senator McManus: He threw a lot of mud, hoping that some of it would stick. His final remarks surely must condemn him for his unfair approach to the whole question. He says that the Prime Minister (Mr Whitlam) was responsible for trying to destroy Mr Gair. He himself is now offering the greatest possible insult to a person who he says has been a champion in the eyes of the people for so many years. Does he seriously suggest that Mr Gair would not have sufficient political nous to realise that he was being made a pawn in the game? Of course he would have that knowledge. But he had become so disillusioned with Senator McManus and his colleagues in the Democratic Labor Party that he wanted to get out of the Party altogether. He had lost all confidence in them because some time previously they had railroaded him into relinquishing the position of Leader of their Party. That is why Mr Gair was anxious to get away from the unseemly politics with which he had to associate himself when he was in the Democratic Labor Party. Senator Little is interjecting. If he proposes to start his yap-yap, let me ask: How often have we heard Senator Little say what a wonderful leader Mr Gair was? But the minute Mr Gair got out of the job, Senator Little immediately denounced him and said that recently his leadership had been poor. That is the quality of members of the Democratic Labor Party.
Senator McManus got on the wrong track immediately when he said that the early newspaper reports of the matter stated that the Prime Minister had taken the credit for the appointment. I challenge Senator McManus to go to the public library and to look at last Tuesday morning’s issue of the ‘Courier-Mail ‘, which was the first newspaper in Australia to break the news, and then to state whether that report said anything about the Prime Minister accepting the credit for this. His name was used once by Wallace Brown, when he said: ‘The Prime Minister is allegedly reported to have stated that Senator Gair accepted this position some time last month’. From there on there is no mention of the Prime Minister, Senator Murphy or anybody else. That was the first report of the matter in Australia- and Senator Condon Byrne nearly died when he first saw it.
Let me take issue with Senator McManus on a second point. He said that Mr Gair himself had said that he had resigned when he tendered his resignation to the Senate the other night. The honourable senator can say all these things, but unless he has facts to support him his case crumbles to the ground. This is a report of what Mr Gair said in Canberra, as published today on page 3 of the ‘Courier-Mail’:
He believed he had stopped being a Senator when he accepted the appointment as Ambassador to the Republic of Ireland.
Senator McManus has said that that is incorrect. But that is a report of Mr Gair himself making the statement. We have heard a long, detailed report of the private conversation between Senator McManus and Mr Gair. I do not know whether it is the politics of the Democratic Labor Party members to have a private conversation with someone and then to come into the Senate chamber and ventilate what was said. That is not my idea of ethical conduct for the leadership of a party. Perhaps it is Senator McManus ‘s.
I refer now to the amendment moved by Senator Withers. In paragraph (ii) of it, Senator Withers, on behalf of the Opposition, says this:
That is the Opposition’s considered opinion in writing. Who would have more responsibility to the Senate- Senator Withers and those who sit behind him or the President of the Senate? What did the President of the Senate say in his statement? The President said this:
If Senator Gair’s letter were a simple one of resignation, in the usual form, my course would be clear and I would take immediate steps to notify the vacancy to the Government of Queensland.
The President said, in effect, that this was not a resignation. What else could it be? It could only have related to the Constitution, for it refers to the acceptance of an office of profit under the Crown. Therefore, the President of the Senate, who is highly regarded by all sections of the community and most certainly by senators on this side of the chamber, concluded by saying:
In all the circumstances, I think this is a matter which should be determined by this Senate and, accordingly, I refer to the judgement of the Senate the question of whether a vacancy has happened in the Senate and when such vacancy happened.
The Government then put up a proposition that this question should be determined by the High Court of Australia. But what does the Opposition say about the High Court of Australia? The Opposition says that the highest court in Australia is not the appropriate body; it is not qualified to discharge this duty. We have on the other side a body of people, who parade the virtues of democracy and who have pledged themselves to uphold law and order, denying the highest authority in Australia the opportunity to determine an issue that is of importance to all Australians.
I now come to what is claimed to be Mr Gair’s resignation. I challenge any honourable senator in this chamber to indicate which part of his letter states that it is a letter of resignation. I wish to read 2 sections of it. In his letter Mr Gair states:
My appointment was approved by the Governor-General on 14 March 1 974, with my knowledge and consent.
Senator McManus implied that former Senator Gair was incapable of making a decision, but Mr Gair, who Senator McManus now says is a wonderful man, says that he was appointed to the position with his knowledge and consent. In his letter Mr Gair continues:
I was informed on 20 March that the Government of Ireland had communicated its agreement to my appointment.
Is that significant? Of course it is. The letter continues:
As you are aware, the position of Ambassador is an office of profit under the Crown and also carries with it fees for services rendered to the Commonwealth, within the meaning of section 45 ofthe Constitution, which I had agreed to take.
Surely, Mr Deputy President, that indicates that the President of the Senate received no resignation. Mr Gair himself said that he ceased to hold his position as a senator when he accepted the appointment on 20 March. Of course, the reason that so much is being made of this matter is because of its political content. The fact remains that on 21 June 1973 in the Commonwealth Gazette- all honourable senators have had a copy of this document to read- Her Royal Highness stated:
Now therefore, acting with the advice of the Executive Council of Australia, and in the exercise of all powers Us thereto enabling, we do hereby assign to the GovernorGeneral of Australia, in addition to all other powers and functions previously assigned to the Governor-General, all our powers and functions in respect of the following matters:
the appointment of Ambassadors Extraordinary … to represent the interests of Australia and the termination of appointments of Ambassadors Extraordinary . . .
The Governor-General has that authority. What do we find in the remainder of the papers that were tabled in the Senate by the Leader of the Government? One of the documents is a letter written by the Minister for Foreign Affairs and dated 14 March 1974. It reads:
The Government wishes to appoint The Honourable Mr Vincent Clair Gair, who is presently a Queensland member of the Australian Senate, as its Ambassador to the Republic of Ireland.
The letter goes on to say other things about Mr Gair. The penultimate paragraph states:
The Government considers that Mr Gair is well suited to the position of Ambassador to the Republic of Ireland and I recommend that you approve his appointment.
The letter is signed ‘E. G. Whitlam’. The notation on that letter by the Governor-General is this: ‘Approved. Paul Hasluck. 14 March 1974’. Are honourable senators opposite disputing the fact that that correspondence was entered into with the Governor-General? Are honourable senators opposite disputing the fact that Sir Paul Hasluck, consistent with all the powers that this Parliament gave him, approved that appointment on 14 March 1974? The next document which was tabled is an inward cablegram addressed to the Department of Foreign Affairs. It reads as follows:
Agreement for Gair has been given. Irish Government would appreciate advance information of date of announcement.
That cablegram was forwarded on 19 March 1974 and received in Australia on 20 March 1974. Does that not indicate that the Government asked Mr Gair whether he wished to take this position? Mr Gair said that he accepted it quite voluntarily. The Irish Government returned the compliment and said: ‘Yes, we are quite happy to have him’. That affirmative reply was communicated by means of the cablegram that was received on 20 March 1974. The next document which was tabled is a Minute Paper for the Executive Council, and its subject is the appointment of Senator the Honourable Vincent Clair Gair as Ambassador Extraordinary of Australia to the Republic of Ireland. The Minute states:
Recommended for the approval of His Excellency the Governor-General in Council that
in relation to the appointment of Senator the Honourable Vincent Clair Gair as Ambassador Extraordinary … of Australia to the Republic of Ireland, he shall be paid such salary and allowances . . .
There are 3 paragraphs in that Minute which indicate that this matter had been before the Governor-General in Council. Again the Minute was signed by the Governor-General, Sir Paul Hasluck, on 21 March 1974, and it was filed in the records of the Executive Council. These are the steps that were taken to achieve the appointment of Mr Gair to the position of Ambassador of Ireland. What more does anybody want? The facts are that Senator Gair, as he then was, was asked whether he would take this position. He accepted the position. The Governor-General was asked whether he would approve the appointment, and he did so. The next step was to ask the Irish Government whether it approved the proposal. The next step was to take the matter to the Executive Council and again the Governor-General, Sir Paul Hasluck, approved all those steps being taken. Therefore it is inconsistent with the facts for other people to say that Mr Gair terminated his association with the Senate on Wednesday night last. The fact remains that the Governor-General said that he terminated his association with the Senate on or about 20 March 1974. But the legal eagles on the other side of the chamber have tried to make all the capital they can out of it by saying that these were snide moves on our part.
If we are to talk about snide moves, let me now refer to the actions of the Queensland Government which is headed by Premier Joh BjelkePetersen. Honourable senators opposite talk of democracy but when it comes to the crunch as to whether democracy is being observed we must have a look at some of the activities of these people who claim to be so righteous in their attitude towards democracy. I remember quite well an episode which occurred at a time when the present Premier was a Cabinet Minister in the Queensland Government. On that occasion a Senate vacancy was caused by the death of a senator from Queensland, and this man who now professes to have all the rights to democracy made a complete and utter joke of the process by which a successor was appointed. Upon being asked to nominate and appoint a successor, the Australian Labor Party nominated a person who had run third on the Australian Labor Party ticket at the previous election. But this gentleman from Queensland said that because the person we nominated was a wharf labourer he was completely unacceptable to the Country-Liberal Party Government in Queensland at that time. A tremendous political argument ensued. At last the Queensland Government submitted 2 names and said that unless we selected one of those 2 people it would give the position to a member of the Liberal Party or the Country Party. They are the ethics that are paraded by the Opposition as those of a great democrat. They are the ethics and standards that were observed in Queensland by the people with whom honourable senators opposite are proud to associate. I believe that they should be ashamed to associate with them. In order to provide a replacement senator from the Australian Labor Party we were required by the Queensland Government to submit 2 names. Otherwise the position would have gone to a member of another political party. Mr Deputy President, you would be aware of those circumstances. I rest on the fact that the Government has a responsibility, if there is any uncertainty at all, to ask the highest court in the land to determine the issue. People more qualified than I to speak on this subject have said that that is the proper course. I will now read the final paragraph of the opinion of Mr Colin Howard, General Counsel to the AttorneyGeneral:
On this basis I am of opinion that on some date before 2 April 1974, that being the date upon which writs were issued for the election of senators from the State of Queensland, most probably on 2 1 March 1 974, but possibly on 14 March 1 974, Senator Gair ceased to be qualified to be a senator.
Honourable senators opposite put the view that the General Counsel to the Attorney-General is wrong. Let us see who is right. Surely members of the Opposition would regard the High Court of Australia as the proper authority to determine whether they as laymen are correct or whether the General Counsel to the Attorney-General is correct. Honourable senators opposite also dispute the opinion of the Solicitor-General of Australia. That is their fundamental right, but surely they would not place themselves in the same category in respect of knowledge of the law as the Solicitor-General of Australia. No one on this side of the chamber has tried to put himself in that position and I do not think that anyone on the other side should try to do so. The next proposition is to refer the whole matter to the highest legal authority in Australia. I commend to the Senate the proposition of the Government.
– I will endeavour to put my views as an independent senator who is not a member of any political party and I sincerely trust that they will be accepted as such. If I were qualified to be a judge and the matter came before me in court I would make exactly the same decision. I would have to examine 2 sections of the Constitution, especially if they were drawn to my attention. The first provision is sub-section (iv.) of section 44, which states:
Any person who-
The second provision is sub-section (iii.) of section 45, which states:
If a senator or member of the House of Representatives-
The note alongside section 45 states:
Vacancy on happening of disqualification.
In my opinion after examination of those provisions Senator Gair disqualified himself from sitting in this House by the fact that he did accept a position from the Parliament as an ambassador. That appointment has been verified by the Governor-General of Australia whose signature appears on the appropriate document. The Leader of the Opposition in the Senate (Senator Withers) in his wisdom has stated that Senator Gair had not resigned. Senator Gair had no chance to resign because he disqualified himself from holding the position of senator immediately he was accepted as an ambassador. I have been a senator for only a few years and in that time I have noted- I do not think anyone would deny it- that this chamber is run on party political lines, much to my disgust. If the Senate were to try to reach a conclusion on this issue it would be decided on party politics. If it were agreed to put an even number of members of the major parties on each side of the House and to appoint a completely independent chairman a fair result might be gained; but as long as there are uneven numbers of representatives of the political parties in this chamber there will be a result which nobody could honestly accept as unbiased. That must be realised.
As an independent senator I would like to believe that we could get an unbiased result but we all know that we could not. We owe it to the Senate not to be put in a position where we have to decide this matter. If we do, many people will point a finger at us and say: ‘That was not a fandecision ‘. We have always tried to be fair in our decision in the Senate. Let us stick to that policy and that way of working. We must not let it be said that this issue was decided by party politics. We know that there are some sticky aspects of this matter that we do not like. It is not the first time that this has happened. They tell me that that is politics. That is why I do not very much like any part of politics. I did not wish to be a politician, but here I am. I am trying to give an unbiased and independent opinion. With an even number of members on each side of the chamber and 3 judges appointed to cast their deciding votes we could achieve a fair result, but not otherwise. We would be doing the wrong thing if we decided this issue in the Senate.
No one can accurately predict the result if 5 or 6 senators are to be elected in Queensland because the people themselves will vote on that. They will make that decision. Who knows? Perhaps 5 or 6 Liberals would be elected, or 5 or 6 independent or Country Party senators. We must not make the decision here because it could never properly be termed unbiased. That result could be achieved with an even number of members on each side of the chamber and 3 judges who could cast their votes. No one could point a finger at that result.
I believe that this is purely a political move. I do not know that we can believe everything we read in the newspapers, but it has been written that the appointment of Senator Gair as Ambassador to Ireland was a brilliant move. Perhaps it was brilliantly countered. I do not know whether that is so and no one will know until we get the final result- the vote of the people of
Queensland on whether it is 5 or 6 senators. I believe that Government senators are not proposing to place themselves in a position which is any different from that of other senators. If the Government sends this matter to the High Court it will be placing the matter in the hands of people who should be and I believe are without any doubt completely unbiased. Their decision should be a fair decision which, without any doubt, would be accepted by all the Australian people.
I strongly recommend that we allow this matter to go out of our hands for decision because if we try to make a decision here we will make a decision for someone in this chamber, and it is wrong for us to do that at this dme. Therefore, when this question comes to a vote I will support the proposal to send this matter out of this chamber for decision, unless we can agree to have it decided by an equal number of senators from both sides of the chamber and 3 independent judges sitting where you, Mr Deputy President, are sitting at the present time.
-Mr Deputy President, this Senate is constituted by 60 elected senators, and its first duty is to maintain its own integrity. That is particularly important in this House of the legislature where the division between the major parties is so close and it is more particularly important for those individual senators who have no protection of a party but who rely alone upon their so-called individual independent strength. It has been one of the risks of politics ever since the game began that the Crown should benefit its men, and members of the legislature who appeared to be capable of being useful to the Crown were the objects of its patronage and preferment. But rarely did you get such impudent indiscretion on the part ofthe Crown and its advisers, who today are Ministers, or attempts so brashly made on the eve of an election for the purpose of traducing a member of the legislature and procuring a vacation of his seat for electoral advantage so transparently corrupt as this.
The surprising thing is that, having been treated to the benefit of considered opinions by the Solicitor-General and the Counsel of the Attorney-General (Senator Murphy), the Senate has not been afforded a single comment upon that aspect, the corrupt aspect, of this approach. We sit here in this chamber, a chamber whose significance has been growing year by year and will grow until it more nearly approaches the ambit of power in the comprehensive jurisdiction of the Senate of the United States if we accept the first principle of our existence, to guard and defend our own integrity.
It is suggested that this chamber should abdicate its function to decide on its own Constitution at the present time when an assault has been made upon its integrity by the Prime Minister of the day, Mr Whitlam, offering an office of profit, as is admitted, to one of our members, keeping it secret until the appropriate time, now claiming to have maintained it clandestine for some 20 days, and then purporting to trundle it out before the public at a time when the advantage would be unassailable. There has been not a word of that in any of the Crown counsel’s opinions that have been laid before us. This chamber would do the worst disservice in its history of it forsook the opportunity that confronts it today to safeguard and decide the integrity of its own composition.
A lot of garbled talk- garbled beyond descriptionhas been indulged in by pressmen in Australia. It is a disgrace to the medium that pretends to present public issues to the country to find such garbled and ignorant use of terms that are of very different connotation in the Constitution. Two kinds of vacancies occur in this Senate. One is the ordinary vacancy upon the effluxion of a senator’s term, and the other is an extraordinary vacancy, and that is the only kind with which we are concerned today. I suggest that an extraordinary vacancy may occur, firstly, if a senator dies; secondly, if he is expelled; thirdly, if he resigns by writing to the President as required by section 19 of the Constitution; and, fourthly, if he forfeits his seat.
The garbled Press continues to refer to forfeiture as a kind of resignation. Is it because the standards of the Press are so degraded that it is unable to distinguish between an honourable resignation and a discreditable and infamous forfeiture incurred by a secretly contrived acceptance of an office of profit under the Crown- or, to come still lower a contrived case which is categorised as an agreement to take a fee or honorarium for services rendered to the Commonwealth? There are other occasions of forfeiture, and just so there will be a context in which to discuss this claimed forfeiture, let us remind ourselves that they are treason, bankruptcy and a few infamies of that sort.
But what is put forward in an endeavour to rescue the old nag from the bog in which my Leader so appropriately said she was floundering and striving to get out of? After there has been a procedure which effectually meets this corrupt manoeuvre, there is invented an idea that there has been a contrived forfeiture, which has lain secret in the archives of the Government and in the consciences of the Prime Minister and of the Attorney-General whereby Senator Gair contrived to forfeit his seat.
The DEPUTY PRESIDENT (Senator
Webster)- Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question:
That the Senate do now adjourn.
Question resolved in the affirmative.
Senate adjourned at 5 p.m.
The following answers to questions were circulated:
Non-payment of Teachers in the Northern Territory
Advertisments Relating to Sexuality
asked the Minister for the Media, upon notice:
– The answer to the honourable senator’s question is as follows:
Cite as: Australia, Senate, Debates, 4 April 1974, viewed 22 October 2017, <http://historichansard.net/senate/1974/19740404_senate_28_s59/>.