Chapter 2 - Office of the President

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5      Term of office

  1. Subject to section 17 of the Constitution, the office of the President shall become vacant:

    1. on the day next before the first sitting day of the Senate after the 30th day of June following a periodical election; and

    2. on the date of a proclamation dissolving the Senate.

  2. A periodical election means any election for the purpose of filling the places of the senators of either of the 2 classes mentioned in section 13 of the Constitution.

Amendment history

Adopted: 19 August 1903 as SO 16A but renumbered as SO 15 for the first printed edition

Amended:

  • 9 September 1909, J.120 (to take effect 1 October 1909) (constitutional change to date of commencement of senators’ terms)
  • 5 October 1922, J.107 (tidying up exercise, replacement of terminology)
  • 6 May 1993, J.91, 96–100 (clarification of a long-standing anomaly concerning the presidential term of a senator standing for re-electionas a senator)

1989 revision: Old SO 15 restructured as two paragraphs and renumbered as SO 5; language of the original third sentence simplified

Commentary

Sir Richard Chaffey Baker, the first President of the Senate  

The Senate's first President, Sir Richard Chaffey Baker (FT, SA), a huge influence on the early Senate (Source: Commonwealth Parliamentary Handbook)

 

Amended on only three occasions since its adoption in 1903, standing order 5 provides for the term of office of the President of the Senate.

Any assumption that the requirement for a term of office tobe defined should be a self-evident and apparently straight forward matter is belied by the length and passion of the 1903 debates on this issue.

Neither Blackmore’s drafts (with Prime Ministerial revisions), tabled in 1901,[1] nor the Standing Orders Committee’s recommended draft, presented as its Third Report on 9 October 1901,[2] specified the term of office of the President. It was not until debate on the committee’s draft commenced on 10 June 1903, and the implications of the standing orders on the opening of Parliament were considered, that senators began to appreciate the lack of guidance in the Constitution and the draft standing orders on when “ordinary” elections for the office of President should occur and, hence, the lack of a common understanding of what the term of office should be. During the debate, it became clear that the senators of the first parliament had made conflicting assumptions about his term of office when electing Senator Sir Richard Baker as their first President.

Section 17 of the Constitution provides for the Senate to elect a new President whenever the office becomes vacant and specifies three grounds on which a vacancy occurs; namely, when the President ceases to be a senator, is removed by a vote of the Senate or resigns.[3] Early in the debates, senators voiced competing views about how long a President might serve in the absence of one of the grounds in s.17 for a vacancy. Arguably, a presidential term might last for three years (to coincide with half-Senate elections); for six years (to coincide with the maximum term of a senator); or for so long as the President continued to be re-elected as a senator (potentially for multiple terms).

Senator Richard O'Connor  

Senator Richard O'Connor (FT, NSW), Vice President of the Executive Council and soon to become one of the first justices of the new High Court, a former parliamentary officer of the NSW Legislative Council (Source: National Library of Australia)

 

As an alternative to relying on inferences, Senator Higgs (ALP, Qld) suggested that senators should have the opportunity later in the debate to consider fixing the term.[4] An amendment moved by Senator Pearce (ALP, WA) to another draft standing order, providing for a vacancy in the office to occur “by reason of a periodical or general election of the Senate” was carried by a vote of 16 to 6 on 10 June 1903.[5] When the subject came up again on 13 August 1903 for review, Senator Pearce proposed a new SO 16A as a consequence of the earlier amendment, as follows (with an amendment moved by Senator O’Connor (Prot, NSW) and agreed to on the same day shown in italics):

Subject to section 17 of the Constitution, the office of President shall become vacant on the 31st day of December following a periodical election, or on the date of any proclamation dissolving the Senate. But if the place of the holder of the office has not become vacant on the 31 st December following the periodical election, the office of President shall continue until the day next before the meeting of Parliament following such periodical election. A periodical election shall be taken to mean any election for the purpose of filling the places of the senators of either of the two classes mentioned in section 13 of the Constitution becoming vacant in the terms of such last-mentioned section.[6]

Not withstanding the apparent lack of consensus about President Baker’s term, new SO 16A and the amendment moved by Senator O’Connor were agreed to on the voices after further lengthy debate on 13 August. Consequently, an election for the office of President was held on 2 March 1904, the first meeting of Parliament after the periodic election on 16 December 1903. President Baker was re-elected.[7]

On 12 December 1906, the first referendum to alter the Constitution was carried by the required majorities. The referendum coincided with a general election for the House of Representatives and a periodic election for half the Senate. The purpose was to amend s.13, relating to the rotation of senators, to enable elections for both Houses to be held concurrently if convenient. Because the elections for the first Parliament were not held until March 1901, and the senators’ terms were back dated to 1 January, the Houses were already out of kilter. As a result of the referendum, the date for the commencement of a senator’s term was changed from the first day of January following the election to the first day of July following the election, except in the case of a simultaneous dissolution when the new terms were taken to have begun on the first day of July preceding the election. the Constitutional change meant that the President’s term of office was now out ofkilter with the rotation of senators, but the amendment of the standing order, replacing “31st day of December” with “30th day of June”, was not immediately required. In mid 1907, the Standing Orders Committee instructed its chairman, President Gould and its secretary, then acting Clerk of the Parliaments (Charles Boydell) to draw up a list of suggested amendments for the committee’s consideration.[8] This was one of more than twenty suggested amendments which were considered at meetings on 26 September 1907 and 15 October 1908, the day on which the committee presented its First Report of 1908.[9] The report was not considered until the following year but the amendment was finally agreed to on 9 September 1909[10] with effect from 1 October 1909,[11] in good time for the next half-Senate election held on 13 April 1910.

The letter presenting Anson's interpretation of section 17 of the Constitution  

Letter from Sir William Anson, author of The Law and Custom of the Constitution (1886–92), in response to queries from E.G. Blackmore about the interpretation of section 17 of the Constitution

 

The Standing Orders Committee conducted another review in October 1922 for the purpose of tidying up the standing orders before a reprint. The report was tabled on 4 October 1922 and adopted the following day after minimal debate.[12] The amendment to standing order 15 replaced “meeting of Parliament” in the second sentence with “first sitting day of the Senate after such 30th day of June”, recalling aspects of the 1903 debate and anxiety about using terminology that implied “a certain amount of subserviency on the part of the Senate to the House of Representatives”[13] by tying important events in the Senate to the timetable of the House.

The 1989 revision made no changes of substance to this standing order, now renumbered as SO 5, but the style and format were significantly updated:

5   Term of office

  1. Subject to section 17 of the Constitution, the office of the President shall become vacant on the 30th day of June following a periodical election, or on the date of a proclamation dissolving the Senate.

  2. If the place of the holder of the office has not become vacant on the 30thday of June following the periodical election, that Senator shall continue to hold the office until the day next before the first sitting day of the Senate after that 30th day of June following that periodical election.

  3. A periodical election means any election for the purpose of filling the places of the Senators of either of the two classes mentioned in section 13 of the Constitution.

As a result of the Senate’s adoption of amendments recommended in the Procedure Committee’s Third report of 1992 (PP No.510/1992), current paragraph (1) replaced paragraphs (1) and (2) of the 1989 formulation (with consequential internal renumbering from the next reprintingin June 1993).

  A copy of the 1903 Standing Orders, highlighting the anomaly found in Standing Order number 5
 

A copy of the 1903 standing orders, annotated by Rupert Loof to highlight the anomaly inherent in the original version of SO 5

Attention had been drawn to the anomaly inherent in Senator O’Connor’s 1903 amendment and, incidentally, noted in former Clerk Rupert Loof’s annotated copy of the 1903 edition of the standing orders. As it stood, the standing order provided for a President whose place as a senator is not subject to election at a periodical election to continue as President until the day before the Senate next meets after the terms of the senators elected at that election begin. But a President who has been re-elected as a senator ceases to hold office as President on 30 June after the election. In this case there is no President in office until the Senate next meets and elects one.

Before the enactment of the Parliamentary Presiding Officers’ Act 1965, there had been three occasions when Presidents, facing re-election as senators, had vacated the office of President after 30 June but, having been re-elected as senators, were then re-elected as President.[14] Technically, this left no President in office during those periods, although the annual estimates provided for the immediate past President’s salary to continue to be paid (if re-elected as a senator) until the eve of his successor’s appointment.[15] Furthermore, authoritative reference works such as the Parliamentary Handbook and the Biographical Dictionary of the Australian Senate rightly avoided confusing pedantry by showing the terms of those Presidents as unbroken.

After the enactment of the Parliamentary Presiding Officers’ Act 1965, no President was affected by the anomaly until President Sibraa who would be the first serving President since 1965 to face re-election at a normal half-Senate election. The anomaly in SO 5 revealed an oversight in the legislation which had been enacted to provide for the exercise of the statutory powers of the President during periods when there is no President in office. Under SO 5 as it then stood, President Sibraa would cease to be President after 30 June 1993. Because of the oversight referred to above, he would not be able to exercise the statutory powers of the President between 1 July 1993 and 17 August 1993 when the Senate was due to elect a new President. His re-election as a senator actually put him outside the class of persons able to exercise the President’s authority under the Act.

As the Procedure Committee found by examining the 1903 debates,[16] it was the Senate’s clear intention that a President facing re-election as a senator should not continue to hold office as President after senators’ terms ended on 30 December (now 30 June):

The debate does not indicate, however, why it was thought that a President whose place as a Senator is not subject to election should continue in office as President until the Senate next meets, but a President who has been re-elected as a Senator should not continue in office as President beyond the following 30 June. It may have been thought that it would not be proper for a Senator to continue to be President while serving a term in respect of which the oath or affirmation under section 42 of the Constitution had not been taken, but as such a Senator would cease to be President immediately before the Senate next meets, there would appear to be no difficulty. Thus, there would appear to be no rationale for the distinction between the two classes of President, or any reason why a President who is re-elected as a Senator should not continue in office as President until the Senate next meets.[17]

Having found no rationale for distinguishing between classes of President, the Procedure Committee then examined the Parliamentary Presiding Officers’ Act 1965:

The Act works by deeming a person to be the President during periods when there is no President in office. The person so deemed to be President is the person who last held the office of President or the person who is, or who last held the office of, the Chairman of Committees, depending on the circumstance. The Act does not apply to the procedural duties of the President, which can be provided for only by the Senate itself.

Due presumably to an oversight, which is nowhere elucidated in the debate on the bill which became the Act, the Act does not clearly apply to the circumstance of the vacation of the office of President under the standing order. The Act covers only the following circumstances:

  • resignation of the President as President or as a Senator

  • the President ceasing to be a Senator by reason of the expirationof the term of service

  • the death, absence from the Commonwealth or incapacity of the President or the person who is deemed to be the President

  • the dissolution of the Senate under section 57 of the Constitution.

It may have been thought that the vacation of the office of the President under the standing order is covered by the provision relating to the President ceasing to be a Senator, but this is by no means clear: a President who has been re-elected as a Senator has ceased to be a Senator in the sense that one term as a Senator has concluded, but another term as a Senator has immediately commenced, and it cannot accurately be said that a person who has continued to hold office as a Senator in two consecutive terms has “ceased to be a Senator”.

Thus, if the current President is re-elected, there will be a period between the following 30 June and the day on which the Senate next meets when, by force of the standing order, there is no President in office, and there is no person authorised to perform the statutory duties of the President.[18]

Senator the Hon. Kerry Sibraa  

Senator the Hon. Kerry Sibraa, President of the Senate 1987–1994, whose circumstances revealed the anomaly and led to its correction (Source: Government Information Service)

 

The Procedure Committee recommended that the most rational solution would be to amend the standing order to remove the distinction between a President re-elected as a senator and a President continuing as a senator after 30 June. There would then be no need for reliance on the provisions of the Act for the performance of the President’s statutory duties between 30 June and the Senate’s next meeting because there would continue to be a President in office.

The Senate agreed to this course of action on 6 May 1993, the third day of the new Parliament and well before the potential anomalies arising from President Sibraa’s re-election as a senator, with a new term commencing on 1 July 1993, would have eventuated. The recommendation was one of a number of procedural issues considered that day and attracted no debate before being agreed to on the voices.[19]

In the same report, the Procedure Committee also considered the implications of the President being a representative of one of the territories and concluded that there would be no difficulties if the proposed amendment were adopted:

The term of such a Senator expires on the day before the polling day of a House of Representatives election, and if the Senator is reelected a new term begins on that polling day. If a territory Senator who is the President is not reelected, the office of President becomes vacant at the expiration of the Senator’s term, but for statutory purposes the person who held the office is deemed to continue to be the President until the Senate elects a new President. If a territory Senator who is the President is reelected, he or she continues to be a Senator and continues to hold the office of President until the next meeting of the Senate after 30 June following a periodical Senate election. Under the existing provisions, a turnover of territory Senators does not affect the tenure of the President, and a fresh election for President is held only in consequence of a turnover of state Senators. There would appear to be no reason for disturbing this arrangement.[20]

These issues were canvassed during the presidency of Senator Margaret Reid (1996 to 2002) who represented the ACT and the practices adopted were a confirmation that the Procedure Committee’s analysis was correct. While servingas President, Senator Reid was re-elected as an ACT senator at the general elections on 3 October 1998 and 10 November 2001. When the Senate first met after these elections, President Reid took the chair in accordance with the usual procedures for an opening of Parliament when there is a President in office (see SO 1). The Governor-General’s Deputy attended the Senate chamber and, having performed the customary formalities, administered the oath of allegiance which Senator Reid made from the chair. The Deputy retired and President Reid then swore in the remaining territory senators. In 1998, as the President continuing in office, she held a commission of authority to administer the oath or affirmation of allegiance to senators, issued by the serving Governor-General immediately after the President’s election.[21] In 2002 a new commission was issued, not because of any doubt about President Reid’s continuity of service as a senator, but in accordance with the generally observed (though not legally necessary) practice of reissuing such instruments when a new Governor-General had taken office in the meantime.[22]

The office of President is not designated as an office to be occupied by a member of the party in government. In practice, however, this is the case except following a change of government when the President remains in office until the end of his or her term as President.[23]

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