«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»
“…. came completely out of the blue..…... I could i m m e d i a t e l y see problems: Lionel had been elected to the Senate for six years but had served only eighteen months. I saw t h a t i f he were to be appointed to t h e H i g h Court, six New South Wales Senators would have to r e t i r e a t t h e t i m e o f the next half-Senate election and the ALP could gain only three of those places. Under normal circumstances five New South Wales Senators would have retired and we would h a v e g a i n e d t h r e e o u t of five. Therefore, when Murphy went to the High Court, we stood to lose a seat and possibly fail to gain control of the Senate. We were literally giving the conservative forces at least one extra Senate position, which might have been the vital vote to give us a majority in the Senate at the next half-Senate elections”. 5
“In Cabinet I argued strongly on t h i s point, but also questioned w h a t Premier Lewis would do concerning the casual vacancy: ‘Who is to say that Lewis will appoint a Labor man to fill Murphy’s vacancy?’ ”. 6 U r e n f r a n k l y a d m i t s t h a t p a r t o f his concern was m o t i v a t e d by i n t e r n a l
Labor politics, his fear that Murphy would probably be replaced by:
“….. a right-wing T a m m a n y Hall machine appointment, not a left-wing c a n d i d a t e. I w a s a l s o w o r r i e d t h a t t h e p o s i t i o n o f t h e L e f t would then be weakened in the ALP caucus. Murphy’s a p p o i n t m e n t c r e a t e d a n i m b a l a n c e in the caucus and on the federal executive”. 7 Lewis, for his part, would not have had much experience of filling Senate c a s u a l v a c a n c i e s. I n h i s t i m e f e w vacancies c a m e t o t h e N S W P a r l i a m e n t, a n d those that did so were a consequence of death or terminal illness. What he d i d have experience of was vacancies in the New South Wales Legislative Council, where there was no convention or practice about selection of someone from the party of the member who had died or resigned. In the words of Neville Wran’s biographers, “[w]here single vacancies were caused by death or retirement, they were filled by the m a j o r i t y P a r t y ”. 8 Only recently two vacancies h a d been engineered to expedite Wran’s transfer from the Council to the Assembly without d i s a d v a n t a g i n g Labor. This manoeuvre was f a c i l i t a t e d by a p p o i n t m e n t of a Liberal MLC to the Federal Bankruptcy Court bench, t h u s ensuring t h a t, including Wran’s resignation, there were two vacancies. The Commonwealth Attorney-General involved in the stratagem was Senator Lionel Murphy.
It is not surprising that Lewis was unmoved by Prime Minister Whitlam’s invocations of conventions in an effort to have the Murphy vacancy in the Senate filled by a Labor nominee. What is surprising, given Whitlam’s general disregard of conventions in so many fields of government, is that he should have based his case on so transparently infirm a foundation.
The two incidents in 1975 were not the first attempts to manipulate casual vacancies in p a r t y interest d u r i n g t h e W h i t l a m p e r i o d. T h e Coalition h a d i t s own grievances stemming from the previous year, when the Government s o u g h t to engineer an advantage for itself in the up-coming periodical elections of Senators by appointing long-term Senator Vince Gair, former Leader of t h e Democratic Labor P a r t y, a s A m b a s s a d o r t o Ireland, a t his own s u g g e s t i o n a s former Prime Minister Whitlam has lately disclosed.
W i t h s i x r a t h e r t h a n f i v e vacancies to be contested in Queensland, Labor thought it had a chance of securing three seats, instead of two in the event that only five s e a t s were a t issue. H a d the W h i t l a m t a c t i c succeeded, i t would inevitably have h a d the effect of changing voter preference a s i t h a d been expressed at the periodical election of Senators in 1970. But the manoeuvre was bungled, and instead of periodical elections for half the Senate, Australians went to the polls at double dissolution elections for the third time in their history.
Ironically, the advantage which Whitlam sought to secure for his own party w i t h t h e G a i r a p p o i n t m e n t w a s, a s Uren pointed out, t h e s a m e a d v a n t a g e h e proposed to give to his opponents should a periodical election of Senators have taken place on 13 December, 1975, as would have occurred h a d the GovernorGeneral accepted the advice which Whitlam unsuccessfully sought to s u b m i t t o him on 11 November, 1975.
Did the Constitution need a new section 15?
The long history of the 1977 change: The events of 1974–75 brought the problem of filling casual vacancies in the Senate to a head. They manifested rather than created a long-standing, unresolved issue in the composition of the Senate, a r i s i n g f r o m t h e twin f e a t u r e s of direct election by all eligible electors in a S t a t e, and t h e m u l t i - m e m b e r c h a r a c t e r of r e p r e s e n t a t i o n e s s e n t i a l t o c a p t u r e the main streams of electoral opinion. Valuable as proportional representation is in reflecting a diversity of electoral opinion, it has a major defect in handling casual vacancies. None of the proponents of proportional representation has yet come up with a satisfactorily workable formula.
In the initial draft of the Constitution, Senators were to be chosen by State Parliaments, following the method then used in the United States. Under such a procedure the issue of filling a casual vacancy by a State Parliament would have been simpler to the extent that there was no change in the selecting body. But when it was decided that Senators would be directly chosen by the people of the S t a t e, p r o b l e m s a r o s e in filling a vacancy because, as explained by Quick a n d
“ [ I ] t was desired to have the vacancy filled by direct election a s soon as possible; but the expense of holding a special election throughout the State was an obstacle”. 9 The a c t u a l convention debate does not contain much guidance on t h e m a t t e r, e x c e p t s o m e c o m m e n t a b o u t perceived dangers of i n t e r i m selection by the Governor, implicitly because it would be a party or faction decision, rather than by the Parliament as a whole. Characteristically, it was Alfred Deakin who p u t t h e v i e w t h a t t h e r e w a s n o real difference between an appointment by t h e Executive and one by the Parliament as a whole! 10 It was also originally proposed that a new appointee would hold office for the “unexpired portion of the term”. This was subsequently changed to provide for an election to fill a vacancy a t the next election for the House of Representatives or of Senators, whichever was the earlier.
Quick and G a r r a n e x p l a i n a t some length t h a t u n d e r t h e o r i g i n a l c a s u a l
vacancy provision, the procedure:
“….. is not regarded by the Constitution as the election of a successor... it is merely an ad interim a p p o i n t m e n t, i n o r d e r t o s a v e t h e S t a t e f r o m b e i n g short of a Senator, on the one hand, and to save t h e S t a t e t h e c o s t of a special election, on the other; the legislative appointee is not a successor of the deceased, d i s q u a l i f i e d, o r resigned, Senator, but merely a t e m p o r a r y holder of the office, pending the election of a successor by the people of the S t a t e ”. 11 In the 48 years from the inception of the Commonwealth to introduction of proportional representation for election of Senators, various practices prevailed in filling c a s u a l vacancies, and from t i m e to t i m e i t was asserted t h a t replacements should come from the same p a r t y a s the deceased or resigned Senator. There was no convention, and sometimes parties w i t h m a j o r i t i e s i n a S t a t e P a r l i a m e n t felt no inhibition about choosing one of t h e i r own to fill a place previously occupied by an opponent. The Peden Royal Commission on t h e
Constitution observed, in 1929, that:
“In some instances a candidate has been elected of t h e s a m e p a r t y a s t h e Senator whose place is vacant, although he h a s not belonged to t h e s a m e p a r t y a s t h e m a j o r i t y o f the m e m be rs of t h e S t a t e P a r l i a m e n t, but t h i s system has not been generally followed”. 12 One a t t i t u d e o f interest in t h i s period was t h a t o f Labor leader in New South Wales during the 1920s and early 1930s, Jack Lang. He took the view that c a s u a l vacancies should not be filled by anyone proposing to contest a forthcoming Senate election. In short, a Senator chosen under s. 15 should not be able to contest a periodical (or, indeed, a general) election of Senators with the advantage of incumbency. 13 A foretaste of future manipulations occurred in 1917. The Prime M i n i s t e r, W M Hughes, tried to build a majority in the Senate by securing the resignation of an anti-conscriptionist Senator and his replacement w i t h o n e f a v o u r a b l e t o Hughes’ situation – in particular, his desire for a resolution asking the Imperial P a r l i a m e n t to a u t h o r i s e an extension of the life of the Commonwealth Parliament, elected in 1914, and due to face elections before the end of 1917 in the case of the House, and before 30 June, 1917 in the case of the Senate. As with the Whitlam Government’s ploy with Senator Gair in 1974, the plan back-fired, and normal elections proceeded on 5 May, 1917. 14 A major reason why any controversy about casual vacancies in this era was short-lived lies in the very lop-sided majorities mainly enjoyed by governments under the first two methods of electing Senators. “Control” of the Senate, or even p a r t y advantage, was p r a c t i c a l l y never a t stake, no m a t t e r how a c a s u a l vacancy was filled.
The proportional representation system introduced a t the 1949 elections had the effect of ensuring that party representation in the Senate would closely reflect p a r t y voting s t r e n g t h in the electorate. In t i m e t h i s representative q u a l i t y o f the Senate voting s y s t e m c a m e t o embrace not only the two m a j o r competitors for power nationally, but also various minor parties and interests.
Because of the closeness of voting in A u s t r a l i a, and the f a c t t h a t t h i s feature is to be found in a l l S t a t e s a s well a s Australia-wide, the consequence has been a diametrical change from the situation in the first half-century of the C o m m o n w e a l t h. M a j o r i t i e s a r e n o longer lop-sided. Even when they e x i s t, they a r e u s u a l l y p a p e r t h i n (the l a r g e s t m a r g i n of government over all others h a s been six, from 1975 to 30 June, 1981). C a s u a l vacancies s h i f t e d from being largely peripheral contests about placemanship to m a t t e r s of m a j o r i m p o r t potentially affecting “control” of the Chamber.
Menzies was the f i r s t to be conscious of the i m p a c t of the new voting system on t h e P a r l i a m e n t a s a whole, and the workings of s. 57 (the double dissolution provision) in p a r t i c u l a r. H e u n d e r s t o o d t h e e s s e n t i a l e f f e c t of t h e new method of choosing Senators: deadlocks would be more likely but, w i t h proportional representation, it would be well nigh impossible to resolve them by resort to a double dissolution under s. 57. Australia’s parliamentary system was now one of adversarial bicameralism, as would become increasingly clear in the next half-century. 15 On 4 May, 1950 Menzies introduced the Constitution Alteration (Avoidance of Double Dissolution Deadlocks) Bill 1950. 16 It included several measures which, i t was hoped, would a m e l i o r a t e t h e p r o b l e m s h e believed were created by t h e combination of the Senate’s virtually co-equal p o w e r s w i t h t h e H o u s e, a n d t h e proportional method of electing Senators. Once passed by the House of Representatives, i t went to the Labor-controlled Senate, which established a s e l e c t c o m m i t t e e t o e x a m i n e t h e p r o p o s e d a m e n d m e n t s t o t h e C o n s t i t u t i o n. As the Government decided n o t t o p a r t i c i p a t e in the inquiry, i t was a n a l l - L a b o r body headed by former Chifley Government m i n i s t e r, Senator Nick McKenna of Tasmania.
The select committee’s main preoccupation was the general measures being proposed to reduce the likelihood of deadlocks between the two Houses, but the Committee’s review inevitably embraced the c a s u a l vacancy i m p l i c a t i o n s. I t
reported as follows:
“Because of the added importance of c a s u a l vacancies a s a result of proportional representation ensuring f a i r l y evenly divided Senates, i t i s recommended t h a t the c o n s t i t u t i o n a l provision for filling of c a s u a l vacancies be reviewed.... [T]he law should be amended to make i t a s n e a r l y c e r t a i n a s p o s s i b l e t h a t c a s u a l v a c a n c i e s will always be filled by a new Senator of the same political complexion as his predecessor. The most satisfactory way to ensure this... is by a provision in the law that in the
An example of i t s l i m i t e d i m p a c t came in 1959, following Senator John Spicer’s resignation on 13 August, 1956 to become Chief Judge of t h e Commonwealth Industrial Court. In accordance with the McLarty rules he was replaced by G C Hannan, on the nomination of the Bolte Liberal Government in Victoria. At periodical elections in November, 1958 there were thus six vacancies to be filled in Victoria because Spicer’s term had only commenced on 1 July, 1956.
The six places were divided evenly between Liberal and Labor.
Had only five places been at issue, the Liberal Party would have won three s e a t s t o t w o. V i c t o r i a n representation in the Senate during 1959–62 w a s, a s a consequence, 4 LCP, 5 ALP, and one DLP, instead of 5 LCP, 4 ALP and one DLP had Spicer not resigned. (As it was, the Government h a d a m a j o r i t y i n t h e S e n a t e from 17 February, 1959 as a consequence of filling of a c a s u a l v a c a n c y in New South Wales, whereas from 1 July, 1956 until after the 1958 elections it had only h a d half the Senate. I t was in t h i s period t h a t, for the f i r s t t i m e in t h e P a r l i a m e n t ’ s h i s t o r y, t h e r e w e r e a n u m b e r of bills – including one to e s t a b l i s h the Reserve Bank of A u s t r a l i a – meeting the requirements for a double dissolution under s. 57, but none eventuated.) The McLarty rule operated in modified form in late 1962 when newly-elected Labor Senator M a x Poulter died. The Queensland Country P a r t y – L i b e r a l Government led by Frank Nicklin refused to accept the Labor nominee, A E Arnold, who had been third on the Labor Senate ticket at the previous Senate elections, because he had won his union post on a u n i t y t i c k e t involving Communist a n d ALP support. Labor eventually brought f o r w a r d another unionist, George Whiteside, as a second candidate and he won the vote with Government support.
When the vacancy was contested in a State-wide ballot a t the t i m e of t h e November, 1963 House elections, the seat went to K J Morris of the Liberal Party, t h u s d i s t o r t i n g v o t e r d i s p o s i t i o n s a s e x p r e s s e d i n t h e p e r i o d i c a l elections of 9 December, 1961.
Another flaw in the M c L a r t y convention was exposed in 1966, a g a i n in Western Australia. Between the calling of periodical elections of Senators on 5 December, 1964 and House of Representatives general elections of November, 1966, two Liberal Senators died – Senator Vincent on 9 November, 1964, a n d Senator Sir Shane Paltridge on 21 January, 1966. They were replaced by Senator J P Sim and Senator R G Withers respectively. S i m and Withers h a d to face t h e electors of Western Australia at the House of Representatives general elections of 26 November, 1966.