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Chapter 4 - Elections
for the Senate
Filling casual vacancies
Casual vacancies are filled in
accordance with section 15 of the
Constitution.
The purpose of the current section 15, inserted by an amendment of the
Constitution in 1977, is to preserve as much as possible the proportional representation
determined by the electors in elections for the Senate.
The main features of the section are as follows:
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When
a casual vacancy arises, the Houses of the Parliament, or the House where there
is only one House, of the state represented by the vacating senator chooses a
person to hold the place until the expiration of the term.
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If
the Parliament is not in session, the Governor of the state, with the advice of
the Executive Council thereof, may appoint a person to hold the place until the
expiration of 14 days from the beginning of the next session of the parliament
of the state or the expiration of the term, whichever first happens.
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A
person chosen is to be, where relevant and possible, a member of the party to
which the senator whose death or resignation gave rise to the vacancy. The
pertinent paragraph of section 15 states:
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 and publicly represented himself to be such a
candidate, a person chosen or appointed under this section in consequence of
that vacancy, or in consequence of that vacancy and a subsequent vacancy or
vacancies, shall, unless there is no member of that party available to be
chosen or appointed, be a member of that party.
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Section 15 also provides:
Where —
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in accordance with
the last preceding paragraph, a member of a particular political party is
chosen or appointed to hold the place of a senator whose place had become
vacant; and
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before taking his
seat he ceases to be a member of that party (otherwise than by reason of the
party having ceased to exist),
he shall be deemed not to
have been so chosen or appointed and the vacancy shall be again notified in
accordance with section twenty-one of this Constitution.
Casual vacancies
arising in the Senate
representation of the Australian
Capital Territory or the Northern Territory are filled by the respective
territory legislative assemblies. If the legislature is out of session, a
temporary appointment can be made in the case of the Australian
Capital Territory by the Chief Minister, and in the case of the Northern
Territory by the Administrator. Provisions relating to political parties,
similar to those of section 15 of the Constitution, also apply. (Commonwealth
Electoral Act, s. 44).
When a senator
is appointed to a vacant place by the governor of a state and the appointment
is “confirmed” by the state parliament within the 14 days allowed by section
15, the senator is not regarded as commencing a new term on the appointment by
the parliament and is not sworn again (ruling of President Baker, upheld by
Senate, 3/9/1903, J.157; 4/9/1903, J.162). The 14 day period is regarded as
commencing on the day after the first day of the session, in accordance with
the normal rule of statutory interpretation. If there is a “gap” between the
expiration of the 14 day period and the appointment of the senator by the
parliament, the senator is sworn again (case of Senator Vardon, 5/8/1921,
J.330; 9/8/1921, J.332).
The 1977 alteration of the Constitution has not entirely solved all
problems in the filling of casual vacancies. There is nothing to compel a state
parliament to fill a vacancy. This was illustrated in 1987 following the resignation
of Tasmanian Senator Grimes, who had been elected to the Senate as an endorsed
candidate of the Australian Labor Party. In accordance with the Constitution,
section 15, the Parliament of Tasmania met in joint sitting on 8 May 1987. The Leader of the
Australian Labor Party in the House of Assembly and Leader of the Opposition, Mr Batt, nominated John Robert Devereux to fill the
vacancy. In the ensuing debate it became apparent that government members as
well as a number of independent members of the Legislative Council intended to
vote against the nomination. The basis for doing so, in terms of the
Constitution, was expressed as follows by Mr Groom, Minister for Forests:
It has been suggested by some people
that there is a convention which requires us to accept Mr Devereux’s
nomination without question, but section 15 of the Constitution clearly states
that it is for the Parliament to choose the person to fill the vacancy and not
the party. We can choose only a person who is a member of the same party as the
retired senator — that is well recognised — but we are not bound to accept the
nomination of the party concerned. (Tasmanian Hansard, Joint Sitting, 8 May
1987, p. 1208)
The matter shortly came to a vote. Votes were tied at 26 each. The
question was thus resolved in the negative in accordance with the rules adopted
for the joint sitting.
Subsequently a member of the Legislative Council who had voted “No” in
the division nominated William G McKinnon, a financial member of the Australian Labor Party and
former member of the Tasmanian Parliament, to fill the vacancy and produced a
letter from the nominee agreeing to the nomination. After a brief suspension
the chairman of the Joint Sitting declared that the “letter is not in order”.
He continued:
It does not comply with rule 16(6) in
that the letter does not declare that the person is eligible to be chosen for
the Senate and that the nomination is in accordance with section 15 of the
Constitution of the Commonwealth of Australia. Therefore I am in the position
of being unable to accept the nomination. (Tasmanian Hansard, Joint Sitting, 8
May 1987, p. 1226)
The joint sitting adjourned soon afterwards without any further voting.
The filling of the casual vacancy was, in the event, overtaken by
simultaneous dissolutions of the Senate and the House. In the subsequent
election John Devereux was among the
endorsed ALP candidates in Tasmania who were elected.
In the Senate itself, the Opposition granted a pair to the government
following Senator Grimes’ resignation so that in party terms relative strengths were
maintained. The Opposition’s position on the matter was stated in the following
terms: “the person appointed to fill casual vacancies of this kind ought to be
the person nominated by the retiring senator’s political party” (Senator
Durack, SD, 12/5/1987, p. 2703).
There was no certainty as to the outcome of the dispute. According to Senator Gareth Evans, representing the
Attorney-General in the Senate, “we have all the makings, however, of a
deadlock, and that is what will prevail in the absence of legal challenge and
in the absence of a change of heart in Tasmania at the moment” (SD, 11/5/1987, p. 2550).
Failure to fill a casual vacancy promptly means that a state’s
representation in the Senate is deficient and the principle of equality of
representation infringed. The Senate itself takes a keen interest in prompt
filling of casual vacancies and has on several occasions expressed by
resolution concern about delay. On 19 March 1987, in the case of
the Tasmanian vacancy, the Senate expressed the view that the nominee of the
relevant party should be appointed (J.1698). Because of the delay in filling a
casual vacancy created by the resignation of Senator Vallentine on
31 January 1992, the Senate passed a resolution on 5 March 1992 expressing
its disapproval “of the action of the Western Australian Government for failing
to appoint Christabel Chamarette [the candidate endorsed by the relevant
political group] as a Senator for Western Australia, condemns the Western
Australian Government for denying electors of that state their rightful
representation in the Senate, and condemns the Western Australian Government
for the disrespect it has shown to the Senate” (J.2085; SD, 5/3/1992, pp
857-72).
On 3 June 1992 the Senate passed
the following resolution:
That the Senate —
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believes that casual vacancies in
the Senate should be filled as expeditiously as possible, so that no State is
without its full representation in the Senate for any time longer than is
necessary;
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recognises that under section 15
of the Constitution an appointment to a vacancy in the Senate may be delayed
because the Houses of the Parliament of the relevant State are adjourned but
have not been prorogued, which, on a strict construction of the section,
prevents the Governor of the State making the appointment; and
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recommends that all State
Parliaments adopt procedures whereby their Houses, if they are adjourned when a
casual vacancy in the Senate is notified, are recalled to fill the vacancy, and
whereby the vacancy is filled:
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within 14 days after
the notification of the vacancy, or
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where under section 15
of the Constitution the vacancy must be filled by a member of a political
party, within 14 days after the nomination by that party is received,
whichever is the later. (J.2401)
This resolution was passed because the government of Western Australia had adopted the
“strict construction” referred to in the resolution, that the state governor
could not fill the vacancy because the state Parliament was not prorogued but
the Houses had adjourned. Other states from time to time have adopted the view
that their governors fill vacancies when their Houses are adjourned. This
resolution was reaffirmed in 1997: 7/5/1997, J.1864.
The Senate
passed a resolution on 4
March 1997 (J.1538) ç calling
on two states to fill casual vacancies expeditiously. The resolution was prompted
largely by statements by the Premier of Queensland that a casual vacancy in
that state caused by a mooted resignation of a senator might not be filled in
accordance with section 15 of the Constitution. A resolution of 15 May 1997 (J.1940-1) referred to the tardiness of
the Victorian government in filling vacancies.
The obligation
on states to fill casual vacancies as expeditiously as possible is matched by
an obligation on the Senate to swear in and seat the appointees at the earliest
possible time. The Senate has always adhered to this principle.
A list of casual vacancies filled under section 15 of the Constitution
is contained in appendix 7. Information on filling casual vacancies before 1977
may be found in ASP, 6th ed., pp 147-59.
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