Posted 18/09/2018 by Damon Muller
Upon being re-appointed to the Senate on 10 September 2018 to fill the casual vacancy created by Andrew Bartlett’s resignation, Queensland (Qld) Greens Senator Larissa Waters becomes the first senator to return to the Senate after having been disqualified under section 44 of the Australian Constitution for holding dual citizenship. Senator Waters’ return is also notable because she is filling a Senate position originally made vacant by her own disqualification, subsequently filled by Andrew Bartlett, and made vacant again by Bartlett’s retirement on 27 August 2018.
The casual vacancy mechanism
One of the interesting aspects of the Australian Constitution is that while it requires senators to be ‘directly chosen by the people of the State’ (that is, elected) under section 7, it also allows for senators to be appointed to the Senate without election in specific circumstances—namely, casual vacancies.
Section 15 of the Constitution provides that if a senator’s place becomes vacant before the expiry of that senator’s term (for example, due to resignation or death), a person is appointed to the vacancy by a joint sitting of the parliament of the state or territory for which the vacancy occurs (or just a sitting in the case of unicameral jurisdictions), or by the Governor of the state if the Parliament is not sitting (for confirmation by the state Parliament). Due to amendment of the Constitution by referendum in 1977, section 15 further requires that the replacement come from the same political party as the senator being replaced. As such, section 15 means that, prior to appointment by the relevant parliament, those filling casual vacancies are selected by the party of the departed senator, not the voters.
In total, there have been 157 casual vacancies since Federation—52 due to deaths, 104 due to resignations and one due to disqualification. Of the 76 members of the current Senate, 28 (37 per cent) entered the Senate by filling a casual vacancy; three have not yet faced election due to their appointment in the current term.
Notable casual vacancy situations
Larissa Waters (Qld) was one of the first senators in the 45th Parliament to be disqualified for holding dual citizenship, forcing a recount that resulted in Andrew Bartlett being elected to take her place. Vacancies created by senators found to have been ineligible to stand are filled with a recount rather than as a section 15 casual vacancy. Andrew Bartlett and Richard Colbeck (Tasmania (Tas.)) have each entered the Senate through being elected in their own right and through the casual vacancy and recount mechanisms.
Senator Waters will be only the second senator to return as a casual vacancy within a single Senate term (between elections). The case of the first senator to do so, Jeannie Ferris (South Australia (SA)), also involved section 44. Ferris resigned her Senate seat in July 1996 before taking office due to eligibility concerns in relation to her holding an office of profit under the Crown contrary to section 44(iv) of the Constitution (Ferris had been employed in a parliamentarian’s office). She was not referred to the Court of Disputed Returns and her election was never ruled ineligible. Less than two weeks later, Ferris was appointed to her own Senate casual vacancy by the South Australian Parliament.
Senator Waters and former Senator Ferris are not the only senators in the history of the federal Parliament to have found their way into the Senate through unusual situations involving section 15 of the Constitution.
When former New South Wales (NSW) Senator Bob Carr (himself appointed to the Senate to fill a casual vacancy in 2012) resigned in 2013, he had already been elected to the Senate for the next term, which had not yet commenced. His replacement, Deborah O’Neill, was therefore appointed through section 15 twice to replace Carr—once for the term he had not yet completed, and again for the term he had not yet started. Analysis of Parliamentary Handbook data suggests that, had the Senate not been dissolved for the 2016 double dissolution election, Senator O’Neill would have been the first senator to have completed a full six-year term without having been elected.
Five other senators have been twice appointed to casual vacancies. John Valentine MacDonald (Qld) was twice appointed to casual vacancies, and twice defeated at elections in the 1920s. He was later elected to the Senate, but died in office before completing his term. Charles Grant (Tas.) and Jacinta Collins (Victoria (Vic.)) were both appointed to casual vacancies (in 1925 and 1995, respectively), defeated at elections (in 1925 and 2004), and later appointed again to casual vacancies (in 1932 and 2008). Both went on to be re-elected and serve several more terms.
Edward Vardon was appointed to a casual vacancy for SA in February 1921 by the Governor-in-Council; however the South Australian Parliament failed to confirm his appointment as required under section 15 of the Constitution, so his appointment ceased on 4 August 1921. Five days later, the South Australian Parliament convened a joint sitting and Vardon was again appointed as of 9 August 1921.
The story of the final two-time appointee, Gordon Davidson (SA), is more convoluted. Davidson was an unsuccessful candidate at the 1958 federal election, and was appointed to a casual vacancy due to the death, in October 1961, of Rex Pearson (SA). Due to the electoral law at the time, Davidson could only fill the vacancy until the day before the next election (held on 9 December 1961). Nancy Buttfield (SA) resigned her place in the Senate and was appointed for the remainder of Pearson’s term (until 30 June 1965), with Davidson being appointed to fill the vacancy Buttfield created. Davidson and Buttfield both went on to contest the next Senate election in 1964, however due to drawing the second place behind Davidson on the Liberal Senate ticket, Buttfield was unsuccessful.
Several other senators have re-entered the Senate through casual vacancies after being defeated at elections. These include Joseph Cooke (Western Australia; defeated in 1951 and appointed in 1952), Albert Gardiner (NSW; defeated in 1925 and appointed in 1928), Sandy Macdonald (NSW; defeated in 1998 and appointed in 2000), Edward Mulcahy (Tas.; defeated in 1910 and appointed 1919), William Plain (Vic.; defeated in 1922 and appointed 1925), Charles Sandford (Vic.; defeated in 1955 and appointed in 1957), and Kerry Sibraa (NSW; defeated in 1977 and appointed in August 1978). A number of these (Cooke, Macdonald, Plain, Sandford and Sibraa) went on to win subsequent elections.