You cannot legislate for doing the right thing.
Queensland Premier Rob Borbidge says he has legal advice that if Queensland Senator Mal Colston leaves the Senate (over accusations about travel allowances), he can replace him with an independent, despite the clear and obvious words of the Constitution (as amended in 1977).
Colston was elected under the Labor Party banner. It was stated as much on the ballot paper. He has since become an independent.
The Constitution gives the states the power of appointing replacement senators but it says: “”Where a vacancy has at any time occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly recognised by a particular political party as being an endorsed candidate of that party, a person chosen or appointed under this section in consequent vacancy or vacancies, be a member of that party.”
That is fairly clear cut. Colston was elected as a Labor senator and should be replace by one.
Incidentally, this used to be the convention without these specific words which were inserted after the 1977 referendum. That referendum was necessary because another Queensland Premier Joh Bjelke Petersen flouted the convention of replacing senators from the same party in order to deny Labor a crucial Senate seat in 1975.
The original convention incidentally was created by Robert Menzies in the days when doing the decent and proper thing was second nature. It meant in Menzies’ case appointing a Labor nominee.
Now not even the strict obvious words of the amended Constitution are enough to ensure the propriety. Borbidge has hustled up a lawyer from somewhere to say white is black.
If he goes ahead, it will result in a High Court challenge and egg of Borbidge’s face. Unless, of course, Borbidge wants to lose so he has further “”evidence” of High Court bias.
But there is something that Borbidge should consider. A High Court challenge may gain the Coalition a month or two of having a crucial extra number in the Senate, but such a challenge would weaken and/or embarrass the position of the state governor, a matter dear to the Queensland National Party.
The High Court could not sit idly by and watch the words of Constitution be so obviously ignored, but to do something about it would require the judicial examination of an action by a governor and the overruling of that action.
This is because the Constitution says: “”The name of any (replacement) senator chosen or appointed under this section shall be certified by the Governor of the State to the Governor-General.”
Courts have usually been reluctant to go behind the actions of a Governor, though the High Court did so in the Darwin land -rights case in the early 1980s when the Northern Territory Administrator (on the say so of the Northern Territory Government) extended the city limits of Darwin way out bush in order to circumvent the provision of the Federal NT Land Rights Act which precluded claims in the city area.
Borbidge’s threat would most likely result in an injunction against the non-Labor nominee for replacement and acute embarrassment for the Governor of Queensland who would be formally putting up Borbidge’s dodgy appointment.
Unless, the Governor refused to put up Borbidge’s recommendation. Remember, in 1977 and 1987 Bjelke-Petersen got the Queensland Constitution changed to give literal power to the Governor so he or she could ignore the advice of the Premier.
Either way, it means egg on Borbidge’s face