Odgers' Australian Senate Practice Thirteenth Edition

Chapter 4 - Elections for the Senate

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Delay in filling casual vacancies

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.[49]

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.[50]

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".[51]

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".[52]

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.[53] 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".[54]

On 3 June 1992 the Senate passed the following resolution:

That the Senate —

  1. (a) 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;
  2. (b) 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
  3. (c) 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:
  1. (i) within 14 days after the notification of the vacancy, or
  2. (ii) 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.[55]

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.[56]

(SEE SUPPLEMENT)

The Senate passed a resolution on 4 March 1997 calling on two states to fill casual vacancies expeditiously.[57] 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 referred to the tardiness of the Victorian government in filling vacancies.[58]

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.

(SEE SUPPLEMENT)

A list of casual vacancies filled under section 15 of the Constitution is contained in appendix 7.[59]


49. Tasmanian Hansard, Joint Sitting, 8/5/1987, p. 1208.
50. Tasmanian Hansard, Joint Sitting, 8/5/1987, p. 1226.
51. Senator Durack, SD, 12/5/1987, p. 2703.
52. SD, 11/5/1987, p. 2550.
53. J.1698.
54. J.2085; SD, 5/3/1992, pp. 857-72.
55. J.2401.
56. 7/5/1997, J.1864.
57. J.1538.
58. J.1940-1.
59. Information on filling casual vacancies before 1977 may be found in ASP, 6th ed., pp. 147-59.

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