Election and vacation of office of President
Section 17 of the Constitution provides that the office of President must be filled whenever it becomes vacant; the Senate cannot function without a President.
The office of President becomes vacant if the President dies, ceases to be a senator, resigns from office, or is removed by a vote of the Senate. The office also becomes vacant on the day before a sitting of the Senate after 30 June following a periodical Senate election (that is, following a turnover of the state senators), and on a proclamation of dissolution of the Senate and House of Representatives under section 57 of the Constitution. If a territory senator is the President and is re-elected at a general election, the office of President does not become vacant because there is no break in such a senator’s term of office as a senator; he or she remains in the Chair as President but takes the oath or affirmation as a senator at a subsequent sitting of the Senate. (Constitution, s. 17; SO 5(1); Parliamentary Presiding Officers Act 1965; Procedure Committee, Third Report of 1992, PP 510/1992, pp 7-11; case of President Reid, 10/11/1998, J.4-6; 12/2/2002, J.5-6.)
The President may resign as President or as a senator by writing addressed to the Governor-General (Constitution, s. 17).
Before the election of the President, the Clerk of the Senate acts as chair of the Senate, and has the powers of the President under the standing orders while so acting (SO 6(1)).
A senator, addressing the Clerk, proposes to the Senate as President some senator then present, and moves that that senator take the chair of the Senate as President. When only one senator is proposed, the senator is called by the Senate to the chair without any question being put, and the senator then expresses a sense of the honour proposed to be conferred, and is conducted to the chair by the senator or senators who proposed the motion (SO 6(3)).
When two or more senators are proposed as President, a motion is made regarding each senator — “That Senator take the chair as President”. Each senator so proposed may address the Senate; in practice this is usually no more than a short statement, “I submit myself to the will of the Senate”. The senator proposing the motion for the election of a President, and any senator speaking to it, may not speak for longer than 15 minutes (SO 6(2)). This means that debate cannot occur until all nominations have been received, so that any senator speaking is able to refer to all nominations. The candidates address the Senate before other senators speak (SD, 14/8/2007, p. 1). There is no provision in the standing orders for a reply by the movers of motions proposing senators as President.
When there are two or more candidates for President, an election is conducted by secret ballot. This practice was established at the first meeting of the Senate in 1901, senators regarding it as the best way of ascertaining the choice of the majority. Each senator is provided by the Clerks with a ballot paper upon which to write the name of the candidate for whom the senator votes.
In the case of two candidates the votes are collected and counted by the Clerks, under the supervision of senators, usually whips from the party or parties sponsoring the candidates, and the candidate who has the greater number of votes is declared by the Clerk to be elected President. The successful candidate is then conducted to the chair (SO 7(1)).
When there are more than two candidates, the votes are taken in the same way, and the senator who has the greatest number of votes is declared the President, provided that there is also a majority of the votes of the senators present (SO 7(2)). If no candidate has such a majority the name of the candidate having the smallest number of votes is withdrawn, and a fresh ballot is taken. This is done as often as necessary, until one candidate is declared elected as President by majority, and that senator is conducted to the chair (SO 7(3)). There have been more than two candidates twice. On 9 May 1901, three candidates contested the first election for President, which was won by an absolute majority on the first ballot by Senator Richard Baker (J.3-4). On 17 February 1987, three candidates stood for election, and on this occasion two ballots were required to elect Senator Kerry Sibraa as President (J.1591-2).
If the votes are equally divided, the Clerk declares accordingly, and the votes are again taken. If again the votes are equally divided, the Clerk determines, by lot, which candidate should be withdrawn (SO 7(4)). This has happened only once in the history of the Senate, on 1 July 1941 (J.83). The constitutionality of standing order 7(4) providing for the drawing of lots was raised in the Senate on 25 November 1908 (SD, p. 2158), in connection with the election of a Chair of Committees. Senator Neild pointed out that section 23 of the Constitution provided that where the votes of the Senate are equally divided the question shall pass in the negative, and contended that the standing order providing for the drawing of lots was in derogation of the Constitution. President Gould held that section 23 of the Constitution related to ordinary questions submitted to the Senate, and stated that he was obliged to follow the standing order.
No subsequent examination of any ballot papers of a secret ballot of the Senate is permitted (ruling of President O’Byrne, SD, 11/7/1974, pp 81-3, 101). This ruling was given in response to a suggestion by a senator that ballot papers be examined to refute a press claim about his vote. It would not prevent a formal inquiry by the Senate into an election if such proved necessary.
Having been conducted to the chair, the senator elected acknowledges to the Senate the honour conferred and assumes the chair. The President then receives the congratulations of the Senate, and a minister informs the Senate of the time for presentation of the President to the Governor‑General. Before the Senate proceeds to any business, the President, accompanied by senators, is presented to the Governor-General (SO 8; for a suspension of this SO, see 1/2/1994, J.1143). This presentation is a custom of courtesy only and does not affect the President’s tenure of office or powers.
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