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:
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.
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.
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.
Section 15 also provides:
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
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 —
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;
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
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:
within 14 days after the notification of the vacancy, or
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) 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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