Odgers' Australian Senate Practice Thirteenth Edition

Chapter 4 - Elections for the Senate

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Casual vacancies

Casual vacancies in the Senate are created by death, resignation or absence without permission.[40]

In the case of resignation, a senator writes to the President, or the Governor-General if there is no President or the President is absent from the Commonwealth.[41] A resignation may take the following form—

(Date)

Dear Mr/Madam President

I resign my place as a senator for the State of , pursuant to section 19 of the Constitution of the Commonwealth of Australia.

Signature

Where the letter of resignation is sent to the Governor-General, the form may be as follows:

(Date)

Dear Governor-General,

Section 19 of the Constitution provides —

"A senator may, by writing addressed to the President, or to the Governor-General if there is no President or if the President is absent from the Commonwealth, resign his place, which thereupon shall become vacant."

As the President of the Senate is absent from the Commonwealth, I address my resignation to you.

I resign my place as a senator for the State of ..........., pursuant to section 19 of the Constitution of the Commonwealth of Australia.

Signature

The following principles have been observed in relation to the manner in which a senator may resign their place:

  1. (a) a resignation by telegram or other form of unsigned message is not effective;
  2. (b) a resignation must be in writing signed by the senator who wishes to resign and must be received by the President; whether the writing is sent by post or other means is immaterial;
  3. (c) it is only upon the receipt of the resignation by the President that the senator's place becomes vacant under section 19 of the Constitution;
  4. (d) a resignation cannot take effect before its receipt by the President;
  5. (e) a resignation may not take effect at a future time;
  6. (f) the safest procedure is for the resignation, in writing, to be delivered to the President in person in order that the President can be satisfied that the writing is what it purports to be, namely, the resignation of the senator in question; resignations transmitted by facsimile and confirmed by telephone are accepted.

(SEE SUPPLEMENT)

On 5 July 1993 Senator Tate, having just commenced a new term as a senator for Tasmania, resigned before taking his seat in the Senate. The resignation of Senator Tate before his swearing in did not affect the procedure for his replacement. Had he resigned before the commencement of his new term, however, this would have given rise to interesting questions. Presumably he would have had to lodge a sort of "double resignation", making it clear that he was resigning his place in respect of his term ending on 30 June and also in respect of his new term commencing on 1 July.

If the President resigns as a senator, the resignation is addressed to the Governor-General.[42]

The death of a senator-elect has been regarded as creating a casual vacancy to be filled in accordance with section 15 of the Constitution.[43] Presumably a senator-elect could resign or become disqualified and similarly create a casual vacancy. The disqualification of a senator at the time of election, however, does not create a vacancy but a failure of election which is remedied by a recount of ballot papers.[44]

The Constitution, section 20, states that the "place of a senator becomes vacant if for two consecutive months of any session of the Parliament" a senator fails to attend the Senate without its permission. In 1903 the seat of Senator John Ferguson was declared vacant owing to absence without leave for two months. For the purposes of section 20, a record is kept in the Journals of the Senate of senators' attendance.[45]


40. In some cases, disqualification of a senator may give rise to a casual vacancy, for example, where a senator is disqualified because of section 45 of the Constitution; see Chapter 6, Senators, under Qualifications of Senators.
41. Constitution, s. 19.
42. Constitution, s. 17.
43. Case of Senator Barnes, 1/7/1938, J.78.
44. See Chapter 6, Senators, under Qualifications of Senators.
45. See SO 46; and Annotated Standing Orders of the Australian Senate, under SO 46.

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