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Senate Casual Vacancies
Gerard Newman
Statistics Group
Introduction
On 29 January 1996, Victorian Premier, Mr Jeff Kennett, suggested the
abolition of by-elections, albeit under certain circumstances. The proposal
was widely condemned as a denial of the fundamental democratic principle
of the right of the electorate to choose its own representatives.
During 1996, four new Senators were chosen to fill casual vacancies
in the Senate without any requirement for a by-election. The absence of
a by-election provision in the filling of Senate casual vacancies seldom
rates a mention in any discussion of representative government in Australia.
The by-election requirement for the Senate was abolished with the passage
of the Constitutional Alteration (Senate Casual Vacancies) 1977.
Background
Under Section 15 of the Constitution Senate positions becoming vacant
before the expiration of the term for which the holder was elected (or
chosen) are filled by Senators chosen by the Parliament (or appointed
by the Governor with the advice of the Executive Council) of the respective
State. Senators chosen under this provision hold office for the remainder
of the term of the previous occupant.
Table 1 Senators Chosen Under Section 15
Period Number Percent Average
per year
1901-49 38 36.5 0.8
1950-76 28 26.9 1.1
1977-86 12 11.5 1.2
1987-96 26 25.0 2.6
Total 104 100.0 1.1
The original Section 15 was changed by the Constitutional Alteration
(Senate Casual Vacancies) 1977 to ensure that Senators chosen under
this provision represented the same political party as the Senators they
replaced.
Since the passage of the Constitutional Referendum in 1977, there has
been a significant increase in the number of Senators chosen under Section
15. In the 96 years (to the end of 1996) of the Commonwealth Parliament,
104 Senators have been chosen to fill casual vacancies. In the 76 years
(1901 to 1976) prior to the passage of the Referendum some 66 Senators
were chosen, an average of less than one Senator per year (0.9). In the
20 years (1977 to 1996) since the Referendum, 38 Senators have been chosen,
an average of nearly two per year (1.9). However, in the last ten years,
26 Senators have been chosen an average of 2.6 per year. One quarter of
all Senators chosen under Section 15 have been chosen in the last ten
years.
The increasing number of Senators chosen under Section 15 since 1977
can be illustrated by the changing proportion of the Senate that is composed
of non-elected (ie chosen or appointed) Senators.
Apart from 1981 there has been a steady increase in the number and proportion
of Senators who are non-elected since 1978. At 30 June 1996 there were
11 non-elected Senators, the highest ever number of Senators chosen or
appointed in the Senate at the one time.
1977 Referendum
Following the political controversy surrounding the appointment of Senators
CE Bunton and AP Field to fill casual Senate vacancies in 1975, the Constitutional
provisions for filling casual Senate vacancies were changed by a Referendum
in 1977.
Table 2 Composition of Senate 1977 to 1996
Date Elected Senators Non-elected Total
Senators Senate
No % No % No
30 June 1978 62 96.9 2 3.1 64
30 June 1981 58 90.6 6 9.4 64
4 Feb 1983(a) 63 98.4 1 1.6 64
30 June 1985 75 98.7 1 1.3 76
5 June 1987(a) 71 93.4 5 6.6 76
30 June 1990 69 90.8 7 9.2 76
30 June 1993 67 88.2 9 11.8 76
30 June 1996 65 85.5 11 14.5 76
(a) Date of dissolution of Senate
The 1977 Referendum was an attempt to entrench in the Constitution the
previously held constitutional convention that Senators chosen to fill
casual vacancies should be from the same political party as the departing
Senator. It was the perceived flouting of this convention that led to
the requirement for the constitutional alteration.
As well as attempting to ensure that Senators chosen to fill casual
vacancies represent the same political party as the departing Senator,
the 1977 constitutional alteration dispensed with the requirement that
the Senator chosen to fill the vacancy be elected at the next available
House of Representatives or Senate election. The original Section 15 stated
that:
At the next general election of Members of the House of Representatives,
or at the next election of Senators for the State, whichever first happens,
a successor shall, if the term has not then expired, be chosen to hold
the place from the date of his election until the expiration of the term.
By reducing the uncertainty that Senators resigning from the Senate
will be replaced by a Senator from their own party and by removing any
possibility of losing the position at any subsequent election to fill
the casual vacancy, the result of the 1977 Referendum has been to greatly
increase the number of Senators resigning from the Senate before the completion
of their term.
Casual Vacancy Elections
The consequence of the original Section 15 was that at general elections
before 1977 there were often elections held to fill Senate casual vacancies.
In the period 1949 to 1977 there were separate House of Representatives
elections held on five occasions. On four of those occasions (1963, 1966,
1969 and 1972) elections to fill Senate casual vacancies were required
in at least one State. Of the seven Senate elections held in the same
period, (excluding the three simultaneous dissolution elections of 1951,
1974 and 1975), elections to fill casual Senate vacancies were required
on four occasions (1953, 1958, 1961 and 1970).
Table 3 Elections to Fill Senate Casual Vacancies, 1949 to 1977
Date Election States
1953 Senate WA, Tas
1958 Senate NSW, Vic
1961 Senate SA
1963 House Qld
1966 House NSW, Vic(2), Qld, WA(2)
1969 House Vic, SA
1970 Senate NSW, Vic
1972 House Qld
The requirement that Senators chosen under the original provisions of
Section 15 face the people at the next election might well have deterred
some Senators from resigning. Of the 17 elections held to fill casual
vacancies in the period 1949 to 1976, the party of the chosen Senator
lost the position at the subsequent election on seven occasions. By way
of comparison, in House of Representatives by-elections over the same
period the party of the departing Member lost the seat in only 5 of the
43 elections.
Reasons for Casual Vacancies Since 1977
Since the passage of the 1977 Referendum, 38 Senate vacancies have been
filled under the provisions of Section 15. An additional vacancy occurred
(Senator D Grimes) but was not filled before the 1987 simultaneous dissolution.
The recent vacancies caused by the death of Senator J Panizza and the
resignation of Senator R Woods have not as yet been filled and are excluded
from this analysis.
Although it is not always clear as to the reasons for Senate casual
vacancies, Table 4 provides some useful insights. Of note is the low number
of vacancies caused by health concerns (less than 15%) and the large number
(over 50%) caused by other concerns. Some frequently quoted reasons in
this category include: desire to spend time with family, pursue outside
interests and disillusionment with policies or the political party
Table 4 Reasons for Casual Vacancies 1977-1996
Reason Number Percent
Death 3 7.7
Ill health 2 5.1
Contest House of Representatives
Election 7 17.9
Government 6 15.4
appointment
Other 21 53.8
Total 39 100.0
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