Casual vacancies in the Australian Parliament

Last updated

In the Parliament of Australia, a casual vacancy arises when a member of either the Senate or the House of Representatives:

Contents

Disqualification

The Commonwealth Electoral Act 1918 (text) requires candidates for Parliament to be Australian citizens. [5]

A member will be disqualified if they are found to have been ineligible for election, or become ineligible to sit, because they:

A member will also be disqualified if they:

Resignation

A member of the House of Representatives may resign by tendering the resignation to the Speaker, as required by section 37 of the Australian Constitution, or in the absence of the Speaker to the Governor-General. Similarly, a senator would tender the resignation to the President of the Senate or in the absence of the President to the Governor-General, as required by section 19 of the Constitution.

How a casual vacancy is filled

Casual vacancies are handled in different ways, depending on the house concerned.

Senate

States

When a Senate seat representing one of the six states becomes vacant, Section 15 of the Australian Constitution requires the parliament of the relevant state to choose a replacement. This is done in a joint sitting of the upper and lower houses (except for Queensland, which has a unicameral parliament). If the state parliament is not in session, then the governor of the state (acting on the advice of the state's executive council) may appoint the replacement, but such an appointment lapses if it is not confirmed by a joint sitting within 14 days after the beginning of the next session of the state parliament.

Prior to 29 July 1977, senators were elected for a six-year term, people appointed to a casual vacancy only held office until the earlier of the next election for the House of Representatives or the Senate, at which the vacancy would be filled by the electors of the relevant state. [13] It was also an established convention, but not a constitutional requirement, that the state parliament choose (or the governor appoint) a replacement from the same political party as their predecessor. It had also been the practice for the relevant party to provide a list of suitable names to the state premier, and for the state parliament to make the choice. Before 1946, the conventions were not as firmly established, with ten casual vacancies being filled by someone from a different party. After 1946, however, they were not breached again until 1975 – twice:

  • On 9 February 1975, the New South Wales Labor Senator Lionel Murphy resigned from the Senate to take up an appointment as a judge of the High Court of Australia. On 27 February, the NSW Liberal Premier Tom Lewis appointed Cleaver Bunton, a former long-serving Mayor of Albury, who was not affiliated with any political party. Bunton sat as an independent senator.
  • On 30 June 1975, the Queensland Labor Senator Bertie Milliner died suddenly. The Labor Party gave only one replacement name to the Country Party Queensland Premier Joh Bjelke-Petersen - that of Mal Colston. However, on 3 September, at Bjelke-Petersen's instigation, the Parliament of Queensland appointed Albert Field to the vacancy. Although he had been a member of the Labor Party for 30 years, Field was now openly critical of the Labor government of Gough Whitlam, and he was immediately expelled from the party for accepting the appointment. Field took his seat in the Senate as an independent. However, there were doubts as to his constitutional eligibility to sit at all. Although he had resigned from the Queensland Department of Education the day before he was appointed, the Education Act (Qld) required three weeks' notice of resignation, and it was arguable that he was therefore still in Crown service (this technicality had been ignored many times in the past). The Labor Party immediately challenged Field's appointment in the High Court, and he was on leave from the Senate from 1 October for the remainder of his short-lived term, which ended when the parliament was dissolved on 11 November. [14]

On 21 May 1977, a referendum was held on the question of whether Section 15 of the Constitution should be changed to require future Senate casual vacancies to be filled by a member of the party represented by the former senator at the time of their election, if the state parliament chooses to fill the vacancy, and the new senator's term continues until the end of the original senator's term. The referendum was passed and came into effect on 29 July 1977. Where a senator had been elected representing a certain party, and changed allegiances to a different party mid-term, and then died or resigned, the replacement senator would be a person representing the first party. This was first implemented when South Australia Senator Steele Hall, who at the time of his election represented the Liberal Movement but had later changed to the Liberal Party of Australia, resigned and was replaced by Janine Haines. She represented the Australian Democrats and was chosen because the Liberal Movement had merged with the Democrats.

Despite the constitutional change, a party's nomination to replace the casual vacancy does not guarantee that the nominee will be appointed to the Senate by the state parliament. Even when there is only a single nominee, there must be a vote to approve the appointment. This means that if the state parliament votes against the nominee, the vacancy is not filled. This was demonstrated when Labor's Don Grimes resigned from the Senate in April 1987. A vote to appoint Labor's nominee John Devereux was undertaken by a joint sitting of the Tasmanian Parliament on 8 May 1987, which resulted in a tied vote. Under Tasmanian Parliament's rules adopted for joint sittings, "if the votes are equal, the Question shall be resolved in the Negative". Therefore the tied vote rejected Devereux's nomination to the Senate. [15] Ray Groom, a Tasmanian Liberal minister, argued: "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 ... but we are not bound to accept the nomination of the party concerned". [16] The move by the Liberal state government was criticised by federal Liberal leader John Howard for "voting against established convention and the intent of the Constitutional change". [17] The joint sitting to appoint another replacement was adjourned but ultimately did not take place, as the Senate was dissolved on 5 June for a double dissolution election in July and therefore a replacement was no longer required.

When a vacancy exists in the Senate as a result of the ineligibility of a person to be elected, as in the 2017 dual citizenship cases, the seat of the disqualified Senator is filled by a countback of the previous Senate election results in the affected State, as was the method used in Re Culleton (No 2) and in the Re Day (No 2) .

A vacancy may also exist when a Senator resigns or dies after they were re-elected to the Senate but before the start of the next Senate term. This means a vacancy is created in both the current term and the following term that has not yet commenced, creating a constitutional quirk. This happened for the first time on 24 October 2013, a month after the 2013 federal election, when New South Wales Labor Senator Bob Carr resigned from the Senate. [18] Carr's current term was to expire on 30 June 2014, and he was already re-elected to the Senate in the election for the following term starting 1 July 2014. Deborah O'Neill was selected by Labor to fill the casual vacancy, and was appointed by the NSW Parliament on 13 November 2013. In an unprecedented situation where Carr resigned both his current term and the following term, the NSW Government sought legal advice from the Crown Solicitor of New South Wales regarding the tenure of O'Neill's appointment. The Crown Solicitor's advice was that the NSW Parliament could only fill the current vacancy, and would have to wait until July 2014 (start of the new term) to fill the future vacancy. [19] [20] Initially, there were no planned sitting days between July and mid-August 2014, however, a reduced joint sitting of 13 lower house MPs and over 40 Legislative Councillors was held on 2 July 2014 to reappoint O'Neill to the Senate for the new term. [21] [22]

Territories

When a Senate seat representing the Australian Capital Territory (ACT) or the Northern Territory (NT) becomes vacant, the replacement senator is chosen by the ACT Legislative Assembly or the NT Legislative Assembly, under section 44 of the Commonwealth Electoral Act 1918 (Text). [23] This process was used in NT for the first and only time on 16 June 1998, when Trish Crossin was chosen by the NT Legislative Assembly to replace Bob Collins, who had resigned from the Senate on 30 March. [24] [25] In the ACT, the process was used for the first time on 18 February 2003, when Gary Humphries was chosen by the ACT Legislative Assembly to replace Margaret Reid, who had resigned from the Senate on 14 February. [26]

If the Assembly is not in session, then the Administrator of the NT (acting on the advice of the territory's executive council) or the Chief Minister of the ACT may appoint the replacement, but such an appointment lapses if it is not confirmed within 14 days after the beginning of the next session of the territory assembly. [27] This procedure is very similar to the procedure for states, albeit under a different legislation or legal document.

Prior to 1989, different processes were used to appoint territory senators to casual vacancies. The original Senate (Representation of Territories) Act 1973 was passed in the 1974 joint sitting and took effect on 7 August 1974, allowing the election of two senators from NT and ACT each. In section 9 of the original act, for NT or ACT casual vacancies, the President of the Senate, or the Governor-General in absence of the President, may issue a writ for the election of a new Senator (i.e. by-election). [28] If there are two casual vacancies in one territory, a writ may be issued for a single election of two new senators. These provisions were in place until 1980, but they never occurred.

The Senate (Representation of Territories) Act 1973, including Section 9, was amended by the Senate (Representation of Territories) Amendment Act 1980 in May 1980. In the amended Senate (Representation of Territories) Act 1973, NT casual vacancy replacements were to be chosen by the NT Legislative Assembly, the same way as it is currently. The ACT had not gained self-government yet, so the replacement senator was elected by a joint sitting of both houses of the Federal Parliament. This had occurred twice: [29]

In February 1984, these provisions were incorporated into the Commonwealth Electoral Act 1918, as amended by the Commonwealth Electoral Legislation Amendment Act 1983. The ACT gained self-government in 1989, and the Commonwealth Electoral Act 1918 was again amended by the A.C.T. Self-Government (Consequential Provisions) Act 1988 to allow ACT casual vacancy replacements to be chosen by the ACT Legislative Assembly, the same way as it is currently.

In accordance with the Commonwealth Electoral Act 1918, the provision of a joint sitting of both houses of the Federal Parliament would still be used to fill a Senate casual vacancy in the representation of any territory other than NT or the ACT, if such a territory ever gained separate Senate representation. [32]

House of Representatives

Casual vacancies in the House of Representatives are filled by a by-election. There is no constitutional requirement for a by-election to be held within any particular time, or at all. When a general election is expected within a relatively short time, it has often been the practice not to hold a by-election. This has been justified on the grounds that: (a) the electors of the seat in question should not be burdened with voting twice within a short period of time, when their views are hardly likely to change significantly in that time; and (b) the cost of holding a by-election is considerable, and it is ultimately the taxpayers who bear the cost. [33] For example, the death of three Cabinet ministers in the 1940 Canberra air disaster on 13 August 1940 meant that three by-elections would have been required. However, a general election was already being planned to be held in the coming weeks and the by-elections were therefore not required.

If it is appropriate to hold a by-election, the Speaker consults with the Australian Electoral Commission as to the suitability of various dates, invites comments from the various party leaders about the proposed dates, makes the final choice, and issues the writ. [34] At least 33 days must elapse between the moment the Speaker issues a writ and the date of a by-election, and the Speaker cannot issue the writ until receipt of a formal letter of resignation. A by-election must take place on a Saturday.

If, since the previous general election, there has been a re-distribution that has altered the boundaries of the division in question, then the boundaries as at the original election still apply, but only those electors enrolled for that division at the time of the by-election are permitted, and required, to vote.

See also

Related Research Articles

<span class="mw-page-title-main">Australian Senate</span> Upper house of the Parliament of Australia

The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. The composition and powers of the Senate are established in Chapter I of the Constitution of Australia. There are a total of 76 senators: 12 are elected from each of the six Australian states regardless of population and 2 from each of the two autonomous internal Australian territories. Senators are popularly elected under the single transferable vote system of proportional representation.

<span class="mw-page-title-main">Margaret Reid (politician)</span> Australian politician

Margaret Elizabeth Reid is a former Australian politician who served as a Senator for the Australian Capital Territory from 1981 to 2003, representing the Liberal Party. She is the first woman to have served as President of the Senate, holding that office from 1996 to 2002.

A double dissolution is a procedure permitted under the Australian Constitution to resolve deadlocks in the bicameral Parliament of Australia between the House of Representatives and the Senate. A double dissolution is the only circumstance in which the entire Senate can be dissolved.

The Constitution Alteration Bill 1977, was a successful proposal to alter the Australian Constitution concerning the filling of casual vacancies in the Senate. It was put to voters for approval in a referendum held on 21 May 1977. After being approved in the referendum, it received the royal assent and became law on 29 July 1977.

This is a list of members of the Australian Senate from 1990 to 1993. Half of the state senators had been allocated a long term following the double dissolution election in 1987 and had terms due to finish on 30 June 1993; the other half of the state senators were elected at the March 1990 election and had terms due to finish on 30 June 1996. The territory senators were elected at the March 1990 election and their terms ended at the next federal election, which was March 1993.

This is a list of members of the Australian Senate from 1987 to 1990. It consisted of twelve senators for each of the six states of Australia and two senators representing each of the Northern Territory and the Australian Capital Territory. All members were elected at the 1987 election following a double dissolution of both houses of parliament, rather than the normal case of only half of the state senators facing election.

This is a list of the members of the Australian Senate in the First Australian Parliament, which was elected on 29 March 1901. There were 36 senators in this initial parliament. Terms were deemed to start on 1 January 1901. In accordance with section 13 of the Constitution, the Senate resolved that in each State the three senators who received the most votes would sit for a six-year term, finishing on 31 December 1906 while the other half would sit for a three-year term, finishing on 31 December 1903. The process for filing of casual vacancies was complex, with an initial appointment followed by an election. The status of political parties varied, being national, State based, and informal.

<span class="mw-page-title-main">1974 Australian federal election</span> Election in Australia

The 1974 Australian federal election was held in Australia on 18 May 1974. All 127 seats in the House of Representatives and all 60 seats in the Senate were up for election, due to a double dissolution. The incumbent Labor Party led by Prime Minister Gough Whitlam defeated the opposition Liberal–Country coalition led by Billy Snedden. This marked the first time that a Labor leader won two consecutive elections.

<span class="mw-page-title-main">Court of Disputed Returns (Australia)</span> Special electoral jurisdiction of the High Court of Australia

The Court of Disputed Returns in Australia is a special jurisdiction of the High Court of Australia. The High Court, sitting as the Court of Disputed Returns, hears challenges regarding the validity of federal elections. The jurisdiction is twofold: (1) on a petition to the Court by an individual with a relevant interest or by the Australian Electoral Commission, or (2) on a reference by either house of the Commonwealth Parliament. This jurisdiction was initially established by Part XVI of the Commonwealth Electoral Act 1902 and is now contained in Part XXII of the Commonwealth Electoral Act 1918. Challenges regarding the validity of State elections are heard by the Supreme Court of that State as the State's Court of Disputed Returns.

In politics, a casual vacancy is a situation in which a seat in a deliberative assembly becomes vacant during that assembly's term. Casual vacancies may arise through the death, resignation or disqualification of the sitting member, or for other reasons.

This is a list of members of the Australian Senate from 1975 to 1978. The 13 December 1975 election was a double dissolution of both houses, with all 127 seats in the House of Representatives, and all 64 seats in the Senate up for election. Malcolm Fraser had been commissioned as prime minister following the dismissal of Gough Whitlam's Labor government by Governor-General Sir John Kerr, on 11 November 1975. The same day, Fraser advised the calling of the election, in accordance with Kerr's stipulated conditions. Thus the Liberal Party of Australia, led by Fraser, with Coalition partner the National Country Party, led by Doug Anthony, went to the election as a caretaker government. The election resulted in the Coalition securing government with a 30-seat swing away from Labor in the House of Representatives.

This is a list of members of the Australian Senate from 1974 to 1975. The 18 May 1974 election was a double dissolution of both Houses, with all 127 seats in the House of Representatives, and all 60 seats in the Senate up for election. The incumbent Labor Party led by Prime Minister Gough Whitlam defeated the opposition Liberal Party led by Billy Snedden and their Coalition partner the Country Party led by Doug Anthony.

This is a list of members of the Australian Senate from 1951 to 1953. The 28 April 1951 election was a double dissolution called by Prime Minister of Australia Robert Menzies in an attempt to gain control of the Senate and to pass the Commonwealth Bank Bill, if necessary at a joint sitting of both houses. All 121 seats in the House of Representatives, and all 60 seats in the Senate were up for election. The incumbent Liberal Party of Australia led by Menzies with coalition partner the Country Party led by Arthur Fadden defeated the Australian Labor Party led by Ben Chifley and gained control of the Senate with 32 seats to Labor's 28.

This is a list of members of the Australian Senate from 1914 to 1917. The 5 September 1914 election was a double dissolution called by Prime Minister of Australia Joseph Cook in an attempt to gain control of the Senate. All 75 seats in the House of Representatives, and all 36 seats in the Senate were up for election. The incumbent Commonwealth Liberal Party was defeated by the opposition Australian Labor Party led by Andrew Fisher, who announced with the outbreak of World War I during the campaign that under a Labor government, Australia would "stand beside the mother country to help and defend her to the last man and the last shilling."

This is a list of members of the Australian Senate between 2011 and 2014. Half of the state senators had been elected at the November 2007 election and had terms due to finish on 30 June 2014; the other half of the state senators were elected at the August 2010 election and had terms due to finish on 30 June 2017. The territory senators were elected at the August 2010 election and their terms ended at the next federal election, which was September 2013. The new Senate first met in July 2011, with state senators elected in 2010 sworn in on 4 July 2011.

A joint meeting of the Australian Parliament is a convening of members of the Senate and House of Representatives sitting together as a single legislative body.

This is a list of members of the Australian Senate between July 2014 and May 2016. Half of the state senators had been elected at the August 2010 election and had terms due to finish on 30 June 2017; the other half of the state senators were elected at the September 2013 election and had terms due to finish on 30 June 2020. The territory senators were elected at the September 2013 election and their terms ended at the dissolution of the House of Representatives, which was May 2016. The new Senate first met in July 2014, with state senators elected in 2013 sworn in on 7 July 2014. Ascertaining the chamber's final composition was complicated by the loss of 1,375 ballot papers in Western Australia, leading to the Court of Disputed Returns voiding the result there, and necessitating a special Senate election in Western Australia.

<span class="mw-page-title-main">Members of the Australian Senate, 2016–2019</span>

This is a list of members of the Australian Senate following the 2016 Australian federal election held on 2 July 2016. The election was held as a consequence of a double dissolution in which both houses of parliament were dissolved. Ordinarily, only half of the senators terms end at each election. In this case, all 76 senators were elected. At the first sitting following the election, half of the senators representing each of the six states of Australia were allocated six-year terms to end on 30 June 2022, with the remainder allocated three-year terms to end on 30 June 2019. The terms of senators from the Australian Capital Territory and the Northern Territory end on the day of the next federal election.

<i>Blundell v Vardon</i> Judgement of the High Court of Australia

Blundell v Vardon, was the first of three decisions of the High Court of Australia concerning the 1906 election for senators for South Australia. Sitting as the Court of Disputed Returns, Barton J held that the election of Anti-Socialist Party candidate Joseph Vardon as the third senator for South Australia was void due to irregularities in the way the returning officers marked some votes. The Parliament of South Australia appointed James O'Loghlin. Vardon sought to have the High Court compel the governor of South Australia to hold a supplementary election, however the High Court held in R v Governor of South Australia; Ex parte Vardon that it had no power to do so. Vardon then petitioned the Senate seeking to remove O'Loghlin and rather than decide the issue, the Senate referred the matter to the High Court. The High Court held in Vardon v O'Loghlin that O'Loghlin had been invalidly appointed and ordered a supplementary election. Vardon and O'Loghlin both contested the supplementary election, with Vardon winning with 54% of the vote.

References

  1. ↑ Constitution sections 19 (Senate) and 37 (House of Representatives). The term "resign" is not to be confused with "retire". A resignation is a voluntary decision by a parliamentarian to end their term early, at a time of their own choosing. A retirement is an involuntary act whereby the sitting member chooses to see out their current term but not to contest the next general election, whenever it is held. The choice of the date of that election is not within the control of the member, but of the government.
  2. ↑ There has only ever been one such case, that of Hugh Mahon, who was expelled from the House of Representatives in 1920. Under Section 8 of the Parliamentary Privileges Act 1987 (Cth), neither House currently has the power to expel a member. However, since this provision is not in the Constitution but only statutory, the Parliament can amend or repeal it.
  3. ↑ Constitution sections 20 (Senate) and 38 (House of Representatives).
  4. ↑ Constitution sections 44 and 45.
  5. ↑ Commonwealth Electoral Act 1918 (Cth) s 163 Qualifications for nomination.
  6. ↑ The expression "foreign power" now includes the United Kingdom, at least since the passage of the Australia Act 1986: Sue v Hill (1999) 99 CLR 462.
  7. ↑ Section 44 goes on to exempt ministerial office and military service. All other public servants must resign their position if they wish to stand for election; taking leave, even without pay, is not enough: Sykes v Cleary (1992) 176 CLR 77 (a schoolteacher).
  8. ↑ Constitution section 44.
  9. ↑ Constitution section 45(ii).
  10. ↑ Constitution section 45(iii).
  11. ↑ Commonwealth Electoral Act 1918, s 386.
  12. ↑ Commonwealth Electoral Act 1918, s 93.
  13. ↑ Evans, H. "Filling Casual Vacancies before 1977, Volume 3" (PDF). The Biographical Dictionary of the Australian Senate. Retrieved 24 February 2017.
  14. ↑ "The Field Affair" Archived 5 November 2005 at the Wayback Machine
  15. ↑ "Joint sitting of the Legislative Council and House of Assembly". Parliament of Tasmania. 8 May 1987. Archived from the original on 8 November 2022. Retrieved 8 November 2022.
  16. ↑ Bennett, Scott. "The Politics of Constitutional Amendment". Research Papers. Parliamentary Library. Retrieved 11 October 2017.
  17. ↑ Green, Antony (6 December 2012). "Senate Casual Vacancies and the Impact of Constitutional Change". ABC News.
  18. ↑ Ireland, Judith (23 October 2012). "Bob Carr announces resignation from Senate". The Sydney Morning Herald. Retrieved 27 October 2013.
  19. ↑ "Advice - Filling of vacancies following the resignation of the Honourable Bob Carr" (PDF). Crown Solicitor New South Wales. 1 November 2013. Archived from the original (PDF) on 15 March 2016. Retrieved 13 November 2013.
  20. ↑ Martin, Lisa (5 November 2013). "O'Neill to miss first week of Senate". Herald Sun . AAP. Retrieved 9 November 2013.
  21. ↑ Aston, Heath (19 June 2014). "Mike Baird finds a way to deal with Bob Carr Senate quirk". The Sydney Morning Herald. Fairfax Media. Retrieved 7 July 2014.
  22. ↑ Godfrey, Miles (3 July 2014). "Four-minute parliament session hauls in NSW MPs in bid to replace Bob Carr at taxpayers' expense". The Daily Telegraph . Retrieved 18 April 2019.
  23. ↑ House of Representatives Practice, 5th edition 2005, p 92.
  24. ↑ "Former Senator Trish Crossin". Senators and Members of the Parliament of Australia . Retrieved 12 November 2021.
  25. ↑ "Senate Hansard, 22 June 1998" (PDF). Parliament of Australia. 22 June 1998. p. 3573. Retrieved 12 November 2019.
  26. ↑ "Senate Hansard, 3 March 2003" (PDF). Parliament of Australia. 3 March 2003. p. 8815.
  27. ↑ Commonwealth Electoral Act 1918, s 44.
  28. ↑ "Senate (Representation of Territories) Act 1973 (Cth)". 7 August 1974. Retrieved 12 November 2019.
  29. ↑ "Rules for Joint Sittings: footnote, p.3" (PDF). Archived from the original (PDF) on 16 October 2010.
  30. ↑ "Senate Hansard, 5 May 1981" (PDF). Parliament of Australia. 5 May 1981. p. 1561. Retrieved 13 November 2019.
  31. ↑ "Senate Hansard, 16 February 1988" (PDF). Parliament of Australia. 16 February 1988. p. 53. Retrieved 13 November 2019.
  32. ↑ This seems unlikely to occur, since the populations of the inhabited external Territories are very small. In the 2011 census Archived 24 March 2012 at the Wayback Machine the ordinarily resident population of Norfolk Island —the only other Territory, and the only external Territory, to be self-governing—was less than 1,800 and in decline.
  33. ↑ "By-elections". Parliament of Australia. Retrieved 15 October 2020.
  34. ↑ House of Representatives Practice, 5th edition 2005, p 90.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.