6      Election of President

1. Whenever the office of President becomes vacant, whether because of section 17 of the Constitution or of the standing orders, the Clerk shall act as chairman of the Senate prior to the election of the President, and shall have the powers of the President under the standing orders while so acting.

2. A senator, addressing the Clerk, shall propose to the Senate as President some senator then present, and move that that senator take the chair of the Senate as President. The senator proposing the motion and any senator speaking to it may speak for not longer than 15 minutes.

3. If only one senator is proposed as President, the senator so proposed is called by the Senate to the chair without any question being put, shall express a sense of the honour proposed to be conferred on the senator, and shall be conducted to the chair.

4. If 2 or more senators are proposed as President, a motion shall be made regarding each such senator, that that senator take the chair of the Senate as President, and each senator so proposed shall express a sense of the honour proposed to be conferred on the senator, and may address the Senate.

Amendment history

Adopted: 19 August 1903 as SOs 16B, 17, 18 and 19 (corresponding to paragraphs (1) to (4)); SO 16B renumbered as SO 16 for the first printed edition

Amended:

• 5 October 1922, J.107 (minor clarification regarding seconding of nominations)
• 1 August 1934, J.459–61, with effect from 1 October 1934 (powers of Clerk clarified)
• 26 November 1981, J.716–17 (seconding requirement abolished)

1989 revision: Old SOs 16B, 17, 18 and 19 combined into one, restructured as four paragraphs and renumbered as SO 6

Commentary

Then Clerk of the Senate, Harry Evans, chairs the proceedings on 26 August 2008 pending the election of a President (Photo courtesy of AUSPIC)

The procedure for the election of a President has remained virtually unchanged since its first trial in 1901 and its formal adoption in 1903.

As proposed by the Standing Orders Committee, the precursors of paragraphs (2) and (3) were copied from SO 29 and 30 of the Victorian Legislative Council.[1] Although the committee had looked at the standing orders of other legislatures, including South Australia, they adopted the Victorian model “because the latter are short and quite as much to the point as any of the others”, according to the committee chairman and Senate President, Sir Richard Baker.[2] They were amended before being adopted, however, partly as a consequence of the decision to specify the President’s term of office (see SO 5), which rendered some of the proposed content unnecessary, and partly because of a desire on the part of Senator Clemons (FT, Tas) for more “felicitous” wording and a preference for the South Australian versions. The result of Senator Clemons’ efforts was, in President Baker’s view, “a mess” and Senator Drake (Prot, Qld) feared that a recommittal was inevitable.[3] Paragraph (1) resulted from an amendment moved by Senator Pearce (ALP, WA) during the 1903 debates. Its main purpose appears to have been to clarify who would chair the Senate before the President had been elected. Paragraph (4) was adopted as proposed by the Standing Orders Committee as a formulation of the practice adopted by the Senate for the election of its first President.[4]

George Henry Monahan, Clerk of the Senate 1920–38, whose experiences during the elections for President on 31 August 1932 led to the clarification of the Clerk's powers in this situation (Source: Commonwealth Parliamentary Handbook)

The Standing Orders Committee’s 1922 review[5] resulted in the qualifying phrase “before being entertained by the Senate” being added in respect of the requirement that a motion nominating a senator to be President be seconded. The need for this qualification is not illuminated by any contemporary debate. It disappeared when the requirement for seconding of such motions was removed in 1981.[6]

The most significant amendment occurred in 1934 as a result of events connected with the election of President Lynch in 1932. Old SO 16 provided for the Clerk to chair the Senate pending the election of a new President. Long established practice required the Clerk to allocate the call to a senator by standing up, pointing at the senator and resuming his seat. This “painful procedure”[7] was faithfully recorded in the Journals for every election of President commencing with the election of President Baker on 9 May 1901.[8] Though the standing order seemed straightforward enough, with hindsight it appears that use of the “painful procedure” for a mute chair masked unresolved questions about the legitimacy and powers of the Clerk as chair of the Senate in these special circumstances. Perhaps it also owed something to Blackmore’s insistence on adhering to the long established practice which was spelt out in the equivalent standing order of the House of Representatives, drafted by Blackmore.

President of the Senate, Senator the Hon. John Hogg, taking the chair after his election as President on 26 August 2008 (Photo courtesy of AUSPIC)

These matters came to a head on 31 August 1932 with Clerk George Monahan chairing the Senate while it proceeded to elect a new President. Senator Lynch was the first candidate to be nominated and seconded. Senator Dunn (Lang Lab, NSW) then nominated Senator Arthur Rae (Lang Lab, NSW) and made a long, rambling speech which was interrupted by a point of order taken by Senator Pearce (UAP, WA) on the grounds that Senator Dunn’s speech must be relevant to the motion. The Clerk ruled in Pearce’s favour but Senator Dunn moved dissent from the ruling. Normally, debate on a dissent motion is adjourned to the next sitting day unless the Senate agrees to a motion (without debate) that the question requires immediate determination (see SO 198). Without a President, the Senate had little choice but to resolve the dispute immediately and Senator Pearce moved the necessary motion. Further points of order and discussion followed on the powers of the Clerk under the standing orders in these circumstances. Senator Pearce reminded the Clerk that the motion must be put without debate.

Senator the Hon Alan Ferguson is escorted to the chair by the Usher of the Black Rod following his election as President on 14 August 2007 (Photo courtesy of AUSPIC)

In putting the question, Monahan summed up the position as follows: “There being at the moment no President of the Senate, the Clerk takes the place of the President for the time being, in which case I assume that he must administer the Standing Orders as he finds them”.[9] The motion was carried on a division, the dissent motion was lost on the voices, Senator Dunn withdrew his nomination of Senator Arthur Rae and Senator Lynch won the ballot for President against a third candidate. Shortly afterwards, the question whether the standing orders required amendment as a result of this incident was referred to the Standing Orders Committee which reported some time later with recommendations to specify the powers of the Clerk when in the chair (old SO 16) and impose a time limit of 15 minutes on speakers addressing a nomination for President (old SO 17). These recommendations were adopted and took effect on 1 October 1934.[10] Senators Dunn and Rae both spoke and voted against the proposal to vest the Clerk with the powers of the President, questioning why control of the chamber should be given to an unelected official, even for so limited a purpose.[11] Conferral of the powers of President on the Clerk meant that the Clerk could now call a senator by name (see SO 186), allowing the “painful procedure” of pointing to be abandoned.

Odgers’ Australian Senate Practice refers to a practical consequence of the time limit on senators addressing a nomination for President; namely, debate cannot occur until all nominations have been received (and, by implication, accepted by the nominee saying “I submit myself to the will of the Senate”) so that senators speaking may address all nominations.[12] This interpretation was upheld by the Clerk at the 2007 election of President Ferguson when he called Senator Bob Brown (AG, Tas) to order for speaking immediately to his nomination of Senator Nettle (AG, NSW) before the candidates had addressed the Senate.[13]

With the powers of the Clerk clarified and the requirement for seconding of motions removed, the first draft of the revised standing orders, tabled on 17 May 1988, proposed that the requirement for a senator elected as President to “express in his place a sense of the honour proposed to be conferred upon him” (old SO 18) should be removed and “left to practice and the discretion of Senators”.[14] When a revised draft was tabled on 1 November 1989, the accompanying explanatory notes explained that this requirement had been restored at the request of senators.[15] The 1989 revision was therefore confined to the consolidation of four separate standing orders into one, renumbering and minor simplification of language.

The process of choosing a President is initiated by the Leader of the Government in the Senate referring to the need for the Senate to choose a senator to be President.[16]

Until the late 1980s ballots between government and opposition candidates were common, but from September 1987 till August 2005 when the Australian Greens nominated a candidate, government nominees were elected unopposed.[17]