«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»
New legislation (the Senate Elections Act 1966) was p a s s e d t o cover, inter alia, a situation where there was an election to fill a casual vacancy separately from periodical elections of Senators, and to cover election of two or more Senators in such circumstances. In particular, the legislation made it clear that there would only be one ballot, on a proportional representation basis, and not one ballot for each vacancy; this was a matter upon which there was reportedly extensive Cabinet and i n t r a - p a r t y debate. The consequence, in the case of Western Australia in 1966, was that the Liberal Party would inevitably lose one seat. The reason for t h i s approach, according to Deputy Opposition Leader Gough Whitlam, was the prospect of litigation if a proportional approach was not followed. Nevertheless, once again, voter preference as revealed in periodical elections would be altered. 22 The Government’s magnanimity was hardly admired. The deputy leader of
the Democratic Labor Party, Senator Frank McManus, gloated:
Why do Senators leave the Senate?
Another question to address in t h i s study of c a s u a l vacancies is t h e circumstances in which Senators leave the Senate for reasons other than death.
1901–49: P r i o r t o p r o p o r t i o n a l r e p r e s e n t a t i o n t h e m a j o r c a u s e o f a c a s u a l vacancy was death. In t h i s period there were 38 casual vacancies; 25 of these were the consequence of death. The remaining 13 can be accounted for thus: illhealth, one; absence/irregular attendance, two; integrity questioned, two; party pressure, one; to contest a seat in the House of Representatives, including after losing preselection for the next Senate election, four; acceptance of a Commonwealth appointment, one; acceptance of a State government appointment, two.
In these years, South Australia led the way with five such vacancies; there were none in either Queensland or Victoria. 30 (This list does not include the Vardon/O’Loghlin case, which f o r a p e r i o d fell within the ambit of s. 15. The previous election was, however, declared void and a fresh election for the single place held.) (The comparable figures for the House of Representatives are that, of the 53 departures for reasons other than challenge or expulsion, 38 were occasioned by death and 15 by resignation.) 1949–77: In the first period of proportional representation, before the 1977 alteration to the Constitution, there were 29 casual vacancies, 21 of which were t h e consequence of d e a t h. In the Menzies/Holt years there were three resignations; one to accept a Commonwealth j u d i c i a l appointment, another t o fill a vacancy occasioned by the technical operation of s. 15, and a third to fill a vacancy caused by resignation of a terminally ill Senator.
Of the remaining five resignations, in the years after 1967, one was an age retirement; one was John Gorton’s departure for the House of Representatives on his election a s leader of the P a r l i a m e n t a r y Liberal P a r t y and his consequent assumption of the Prime Ministership; and three Commonwealth appointments, Dame Annabelle R a n k i n a s High Commissioner to New Zealand, Vince Gair a s Ambassador to Ireland, and Lionel Murphy to the High Court of Australia.
(In the House, the 43 by-elections during t h i s period s t e m m e d from 24 deaths and 19 resignations.) In the years from 1949 to 1972, there does not appear to be any case where the Government sought to engineer a vacancy to enhance i t s s t r e n g t h in t h e Senate, even when it became increasingly unlikely that it would have a majority, or might even be in a minority. The Gair appointment in 1974 seems to be t h e first occasion since 1917 of a government actively seeking to cause a vacancy with the intent of improving its Senate position. It was not entirely unexpected.
Speaking in the House of Representatives on 3 May, 1973, W C Wentworth (Liberal, Mackellar, NSW) spoke about an “engineered resignation of a Senator”.
Referring to Queensland and Western Australia, he said:
“ I d o n o t k n o w w h a t w i l l happen but I a m r e a d y to b e t t h a t t h e L a b o r Party will be making desperate efforts to engineer casual vacancies among long-term non-Labor senators for those two States”. 31 (In 1965, in New South Wales, the newly-elected Liberal–Country P a r t y Government, headed by R W Askin, h a d the s m a l l e s t of m a j o r i t i e s in t h e Legislative Assembly. It appointed Abe Landa, a Minister in t h e p r e v i o u s L a b o r Government, a s Agent-General in London. I t s hope of winning his m a r g i n a l electorate in a by-election ended in disappointment.) 1 9 7 7 t o t h e p r e s e n t — t h e a g e of resignation: S i n c e t h e 1 9 7 7 a m e n d m e n t, there have been 58 casual vacancies (including several Territory Senators); only four have been occasioned by d e a t h. (The comparable figures for the House demonstrate the same pattern – of the 38 by-elections, only five resulted from a death.) As far as information is available, more than a quarter of those resigning from the Senate – 14 of the 54 – did so to contest House of Representatives seats, half of them successfully. Another two headed off to State Parliaments. Ten have gone i m m e d i a t e l y to government a p p o i n t m e n t s (mainly d i p l o m a t i c ) ; one of these was to a State judicial post. Four took business posts. Perhaps 15 could be s a i d t o have retired on age or h e a l t h g r o u n d s. S e v e r a l r e s i g n a t i o n s a p p e a r t o h a v e s t e m m e d f r o m i n t e r n a l p a r t y p r e s s u r e. A s m a l l n u m b e r – perhaps five or six – resigned a few months prior to completion of their term, not having sought re-election, or having been defeated. At least one resignation was on i n t e g r i t y grounds. And another resignation stemmed from an infringement of s. 44 of the Constitution; the vacancy was filled by the same Senator, who had been elected at a periodical election. (In the same year, a member of the House who infringed the Electoral Act had to face a fresh election.)
C o n s t i t u t i o n a l C o m m i s s i o n of t h e l a t e 1980s. At the t i m e there h a d been 13 casual vacancies, all but two the consequence of a resignation. It recommended no change except that Territorial Senators be treated in the same way as State Senators (as now happens). The Commission stated that it regarded the section
as based on a “well understood” and “generally observed” convention:
“[W]e regard the convention a s m e r i t o r i o u s given t h a t i t g u a r d s t h e d e m o c r a t i c r e p r e s e n t a t i o n o f p a r t i e s i n t h e S e n a t e a g a i n s t disturbance by a Senate casual vacancy”. 32 Had use of the new s. 15 been sparing, and mainly a consequence of death, serious illness or a newly-elected Senator serving the last few months of the term of a retiring predecessor, it may not have been necessary to compose this essay.
But it is clear that there has been a great deal of latitude in the use of the new s. 15, a latitude not available to use so carelessly in the case of members of the House of Representatives. The consequence is that first entry to A u s t r a l i a ’ s more prestigious House of Parliament, the Senate, is almost as much by party selection alone, and not by party selection as a prelude to popular election. The advantage of incumbency can be t r a n s f e r r e d in the Senate in a way which i s impossible in the House of Representatives. This is notwithstanding the crucial importance of the Senate’s elective c h a r a c t e r to t h e l e g i t i m a c y w i t h w h i c h i t realises its significant responsibilities under the Constitution.
The complacent disposition of the Constitutional Commission has set the example. A u s t r a l i a n S e n a t e P r a c t i c e, t h r o u g h i t s f i r s t five editions, was t h e advocate of what became the new s. 15. Its successor, Odgers’ Australian Senate Practice, t h r o u g h five editions, h a s confined itself to discussing technical m a t t e r s a s s o c i a t e d w i t h t h e w o r k i n g s o f the new s. 1 5, s u c h a s t h e t i m i n g o f Senator Tate’s resignation following the 1993 elections, five d a y s a f t e r h i s n e w term commenced. The absence of analysis of the use of s. 15 ( a p a r t from a n Appendix containing some d e t a i l s ) is the more curious because the volume itself, in i t s exposition of the Senate’s place in A u s t r a l i a ’ s p a r l i a m e n t a r y system, rightly places much stress on the Senate’s elected character. 33 Because of how the new s. 15 has been used it is not the Senate’s representative character which is now in question, but its foundations as an elected House.
Another instance of neglect of t h i s question came in 1999, the f i f t i e t h anniversary of the f i r s t elections for the Senate using p r o p o r t i o n a l representation. There was much to celebrate a t the conference to m a r k t h i s anniversary. B u t by then u t i l i s a t i o n of the new s. 15, for reasons q u i t e a n t i p a t h e t i c t o the reasons f o r i t s a d o p t i o n, h a d become very clear. This i s, indeed, the major weakness in the 1949 settlement for choosing Senators, but it a t t r a c t e d n o t a s i n g l e paper – nor, i t seems, a single mention – on t h e d a y. 34 Likewise, the ANU Democratic Audit, funded by the Australian Research Council, is not, so far, addressing the matter.
T h e i m m e d i a t e a i m o f t h i s e s s a y i s n o m o r e t h a n t o c a l l a t t e n t i o n to t h e problem. But it is not easy to remedy. The new s. 15 has been entrenched in the C o n s t i t u t i o n, but i t may only make sense while the present s t a t u t o r y scheme prevails. For example, i t would be quite i n a p p r o p r i a t e if t h a t scheme were replaced by one in which States were divided into Senate electoral districts, a s h a s been recently proposed by former Federal Director of the Liberal P a r t y, Andrew Robb, now member for Goldstein. 35 A final consideration is the basic conundrum. F o r a l l t h e virtues seen in proportional representation, the handling of c a s u a l vacancies r e m a i n s a n unresolved problem, even if i t were possible to change the present s y s t e m w i t h o u t resort to another referendum.. The view of the Northern T e rrit or y ’ s
Steve Hatton, as put to the Constitutional Commission, remains pertinent:
“Despite problems with section 15 as it is, no possible changes a m o u n t t o improvements without their own problems”. 36
The Commission itself observed:
“We can see no c h a n g e t h a t w i l l produce an impeccable and impregnable constitutional provision”. 37 Perhaps the best t h a t may be hoped for is t h a t the vigilance which compelled Duncan Kerr to withdraw from his shift to State politics will come to bear on the more indefensibly opportunistic resignations from the Senate.
B u t if t h e r e i s no obvious p a t h for reform where s. 15 is concerned, t h e same may not be said for what this example has to teach about constitutional reform in general. The change to the original s. 15, in p a r t i c u l a r, was illconsidered. And the argument about the matter deteriorated almost every time i t was addressed a f t e r t h e f i r s t, relatively wide-ranging, e x a m i n a t i o n by t h e Senate Select C o m m i t t e e on Deadlocks. As t i m e passed the options narrowed rather than broadened. Convenience prevailed over principle.
It was a bad example of constitutional reform. Australians, once they make a change, are rarely sympathetic about revisiting it. But it is hard to imagine a stronger case for doing so than s. 15 in its 1977 form.
1. On Duncan Kerr’s proposed transfer to the Tasmanian State Parliament, see Labor’s Kerfuffle from Denison and back, and Bruce Montgomery, Dog day
afternoon, in The Weekend Australian, 19-20 January, 2002. Also relevant:
M e m b e r s s h o u l d s e r v e f u l l t e r m, in T h e C a n b e r r a T i m e s, 16 January, 2002;
Kerfuffle leads to right conclusion, in The Age, 17 January, 2002; The Kerr muddle, in The Sydney Morning Herald, 17 January, 2002.
2. For the purposes of t h i s essay I have drawn on i n f o r m a t i o n in t h e Parliamentary Handbook of the Commonwealth of Australia, 29 th edn, 2002, pp. 430–35; H a r r y Evans (ed.), Odgers’ Australian Senate Practice, 1 1 t h edn, 2004, Appendix 7, pp. 699–701; and Joan Rydon, Casual vacancies in the Australian Senate, in P o l i t i c s, XI (2), November, 1976, pp. 195–204, at pp. 202–04.
Casual vacancies include cases where a Senator resigns but the vacancy i s filled by election r a t h e r t h a n selection by a S t a t e Governor or S t a t e Parliament. They do not include cases where an election is held to be void and the vacancy filled by other means. For example, the l i s t does not include selection of J Vardon by t h e P a r l i a m e n t of South A u s t r a l i a on 11 July, 1907, subsequently held invalid by the High Court of A u s t r a l i a on 20 December, 1907; this vacancy was eventually decided at a special election on 15 February, 1908. It includes, on the other hand, Senator Gair’s departure f r o m t h e S e n a t e i n A p r i l, 1 9 7 4, o n t h e s a m e b a s i s t h a t t h e l i s t in Odgers’ A u s t r a l i a n S e n a t e P r a c t i c e, 11th edn, p. 700 includes Senator M c M u l l a n ’ s resignation to s t a n d for election to the House of Representatives, even though his successor was elected in the normal manner for T e r r i t o r y Senators.
3. On the contribution which the Senate makes to enhancing the representivity o f t h e A u s t r a l i a n P a r l i a m e n t, s e e J R Nethercote, R e p r e s e n t i n g P e o p l e, n o t merely Majorities – an Analysis of Prime M i n i s t e r i a l views on t h e S e n a t e, Canberra, 1994.
4. Troy Simpson, A p p o i n t m e n t s t h a t m i g h t h a v e b e e n, in Oxford Companion to t h e H i g h C o u r t o f A u s t r a l i a, Oxford University Press, 2001, pp. 23–7, at p.
5. Tom Uren, S t r a i g h t L e f t, Random House Australia, 1994, pp. 390–1.
6. Ibid., p. 391.
7. Ibid., p. 391.
8. Mike Steketee and Milton Cockburn, Wran — An Unauthorised B i o g r a p h y, Allen & Unwin Australia, 1986, p. 61.
9. John Quick and Robert Randolph Garran, T h e A n n o t a t e d C o n s t i t u t i o n o f t h e Australian Commonwealth, Legal Books, Sydney, 1901 , p. 435.
10. Official Report of the National Australasian Convention Debates, Sydney, 2 March to 9 April, 1891, Legal Books, Sydney, 1986, pp. 603–4.
11. Quick and Garran, o p. c i t., p. 436.
12. R e p o r t o f t h e R o y a l Commission on t h e C o n s t i t u t i o n ( C h a i r : J B Peden), Canberra, 1929, p. 42.
13. See Geoffrey Hawker, “John Maurice Power” and “William Albion Gibbs”, Ann M i l l a r, Biographical Dictionary of t h e A u s t r a l i a n S e n a t e, vol. 1, pp. 70–1 and 72–4 respectively.
14. Geoffrey Sawer, Australian Federal P o l i t i c s and Law, 1901–29, Melbourne University Press, 1956, pp. 149–50; L F F i t z h a r d i n g e, The L i t t l e Digger 1914–1952, Angus & Robertson, 1979, pp. 256–60.
15. See Commonwealth Parliamentary Debates (CPD), vol. 196, 21 April, 1948, pp. 1002–3.
16. CPD, vol. 207, 4 May, 1950, pp. 2217–24.
17. Report of the Senate Select C o m m i t t e e on Constitution Alteration (Avoidance of Double Dissolution Deadlocks) Bill ( C h a i r : Senator N McKenna), PP S.1, 1950, para 180, p. xxxi.
18. Ibid., para 95, p. xix, and para 181, p. xxxi.
Australian Senate Practice, 1st ed., 1953, pp. 28–9; 2 nd ed., 1959, pp. 30-1; 3 rd 19.
ed., 1964, pp. 57-8; 4th ed., 1972, pp. 64-5; 5th ed., 1976, pp. 113-4.
20. The letter is published in Geoffrey Sawer, Federation Under Strain, Australia 1972–1975, Melbourne University Press, 1977, p. 199.
21. Ibid., p. 200.