As already noted, under the Constitution each state is represented by a minimum of six senators. This number has been twice increased, in 1948 (taking effect at the 1949 elections) to 10, and in 1983 (taking effect in the election of 1984) to 12. The Senate’s size also increased after 1975 following election of two senators each by the Australian Capital Territory and the Northern Territory. The size of the Senate was 36 from 1901 until 1949; 60 from 1950 to 1975; 64 from 1976 to 1984; and 76 since 1985. The places of half of the senators for each state are open to election each three years, under the system of rotation. Electoral arrangements for territory senators are described below.
Senate terms of six years commence on 1 July following election. The commencement date was originally 1 January but was altered by referendum in 1906. (See supplement)
Section 13 of the Constitution provides that a periodical election for the Senate must “be made” within one year before the relevant places in the Senate are to become vacant. The relevant places of senators become vacant on 30 June. This means that the election must occur on or after 1 July of the previous year.
The question which arises is whether the whole process of election, commencing with the issue of the writs, must occur within one year of the places becoming vacant, or whether only the polling day or subsequent stages must occur within that period, so that the writs for the election could be issued before 1 July.
This question has not been definitely decided. In Vardon v O’Loghlin 1907 5 CLR 201, the question before the High Court was whether, the election of a senator having been found to be void, this created a vacancy which could be filled by the parliament of the relevant state under section 15 of the Constitution. The Court found that this situation did not create a vacancy which could be filled by that means, but that the senator originally returned as elected was never elected. A contrary argument was raised to the effect that, under section 13 of the Constitution, the term of service of a senator began on 1 January [now 1 July] following the day of his election, and it would lead to confusion if it were held that the subsequent voiding of the election, perhaps a year or more after the commencement of the term, could not be filled as a vacancy under section 15. In dismissing this argument, the Court, in the judgment delivered by Chief Justice Samuel Griffith, made the following observation:
It is plain, however, that sec. 13 was framed alio intuitu, i.e., for the purpose of fixing the term of service of senators elected in ordinary and regular rotation. The term “election” in that section does not mean the day of nomination or the polling day alone, but comprises the whole proceedings from the issue of the writ to the valid return. And the election spoken of is the periodical election prescribed to be held in the year at the expiration of which the places of elected senators become vacant. The words “the first day of January following the day of his election” in this view mean the day on which he was elected during that election. For the purpose of determining his term of service any accidental delay before that election is validly completed is quite immaterial.
This part of the judgment has been taken to indicate that, in interpreting the provision in section 13 whereby the periodical Senate election must be made within one year of the relevant places becoming vacant, the Court would hold that the whole process of election, not simply the polling day or subsequent stages, must occur within that period. This question, however, has not been distinctly decided. It would still be open to the Court to hold that only the polling day or subsequent stages must occur within the prescribed period, and there are various arguments which could be advanced to support this interpretation. The view that the requirement that the election “be made” within the relevant period means only that the election must be completed in that period is quite persuasive.
If it were decided, however, to hold a periodical Senate election with only the polling day or subsequent stages occurring within the prescribed period, there would be a risk of the validity of the election being successfully challenged and the election held to be void. This would lead to the major consequence that the whole election process would have to start again. It may be doubted whether the Court would favour an interpretation which would bring about this consequence.
Section 13 of the Constitution, as has been noted, also provides that the term of service of a senator is taken to begin on the first day of July following the day of the election. In this provision, the term “day of .... election” clearly means the polling day for the election. This is in accordance with the finding in Vardon v O’Loghlin. The day of election is polling day provided that the election is valid; if the election is found to be invalid then no election has occurred and the question of what is the day of election does not arise.
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