Chapter 4 - Elections
for the Senate
Casual vacancies
Casual vacancies in the Senate are
created by death, resignation or absence without permission.
In the case of resignation, a senator writes to the President, or the
Governor-General if there is no President or the President is absent from the
Commonwealth (Constitution,
s. 19). A resignation may take the following form —
(Date)
Dear
Mr/Madam President
I resign my place as a senator for the
State of ..........., pursuant to section 19 of the Constitution of the
Commonwealth of Australia.
Signature
Where the letter of resignation is sent to the Governor-General, the
form may be as follows:
(Date)
Dear Governor-General,
Section 19 of the Constitution provides —
“A senator may, by writing addressed to the President, or
to the Governor-General if there is no President or if the President is absent
from the Commonwealth, resign his place, which thereupon shall become vacant.”
As the President of the Senate is absent
from the Commonwealth, I address my resignation to you.
I resign my place as a senator for the
State of ..........., pursuant to section 19 of the Constitution of the
Commonwealth of Australia.
Signature
The following principles have been observed in relation to the manner
in which a senator may resign the senator’s place:
-
a
resignation by telegram or other form of unsigned message is not effective;
-
a
resignation must be in writing signed by the senator who wishes to resign and
must be received by the President; whether the writing is sent by post or other
means is immaterial;
-
it is
only upon the receipt of the resignation by the President that the senator’s
place becomes vacant under section 19 of the Constitution;
-
a
resignation cannot take effect before its receipt by the President;
-
a
resignation may not take effect at a future time;
-
the
safest procedure is for the resignation, in writing, to be delivered to the
President in person in order that the President can be satisfied that the
writing is what it purports to be, namely, the resignation of the senator in
question; resignations transmitted by facsimile and confirmed by telephone are
accepted.
On 5 July 1993 Senator Tate, having just commenced a new term as a senator for Tasmania, resigned before
taking his seat in the Senate. The resignation of Senator Tate before his
swearing in did not affect the procedure for his replacement. Had he resigned
before the commencement of his new term, however, this would have given rise to
interesting questions. Presumably he would have had to lodge a sort of “double
resignation”, making it clear that he was resigning his place in respect of his
term ending on 30 June and also in respect of his new term commencing on
1 July.
If the President
resigns as a senator, the resignation is addressed to the Governor-General (Constitution, s.
17).
The death of a senator-elect has been
regarded as creating a casual vacancy to be filled in accordance with section
15 of the Constitution (case of Senator Barnes, 1/7/1938, J.78). Presumably a senator-elect could resign or become
disqualified and similarly create a casual vacancy. The disqualification of a senator at the
time of election, however, does not create a vacancy but a failure of election
which is remedied by a recount of ballot papers (see Chapter 6, Senators, under
Qualifications of Senators).
The Constitution,
section 20, states that the
“place of a senator becomes vacant if for two consecutive months of any session
of the Parliament” a senator fails to attend the Senate without its permission.
In 1903 the seat of Senator John Ferguson was declared vacant owing to absence without leave for
two months.
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