Talk:Casual vacancies in the Australian Parliament

Australian exclusive term?

Is this term exclusive to Australia? It seems a fairly standard phrase for a mid-term vacancy and I'm sure I've heard it used for organisations (although not Parliament) in the UK. Timrollpickering (talk) 13:05, 22 November 2007 (UTC)

For that matter, is there any other kind of vacancy besides a "casual" one? The article seems to cover exhaustively every possible reason for a seat becoming vacant. --Russ (talk) 13:34, 3 December 2007 (UTC)

I take that as a compliment, although there are really only 3 ways - death, resignation, or expulsion (only ever happened once, 87 years ago). What's complex is the ways such vacancies in the Senate have historically been filled, particularly when it comes to the territories. The term "Casual vacancies" appears in the Constitution. It's the heading of Section 15, and it also appears when the "Constitutional Alteration (Senate Casual Vacancies) 1977" is referred to in that section. Section 15 is about the Senate only, but the term is generally applied to vacancies in either house, because they arise in exactly the same three ways. So, the term has a strong legal basis in Australia.

But it may also be used in other countries in reference to things both parliamentary and non-parliamentary. To disambig, I would certainly support the article being moved to something like "Casual vacancy (Australian Parliament)". -- JackofOz (talk) 01:53, 11 December 2007 (UTC)

In fact, I've done a search and it is widely used elsewhere. Disambiguation is overdue, so I'll do it now. -- JackofOz (talk) 02:13, 11 December 2007 (UTC)

States' obligations to fill vacancies

I've removed this sentence:

• This amendment is only partially effective, as under Section 11 of the Constitution a State has no obligation to fill a vacancy if it does not want to.

I believe this is a misreading of the Constitution. Section 15 says: "If the place of a senator becomes vacant ... the Houses of Parliament of the state for which he was chosen ... shall choose a person to hold the place until the expiration of the term." (my bolding, of course). Section 11 merely says: "The Senate may proceed to the despatch of business, notwithstanding the failure of any State to provided for its representation in the Senate". That is, just because a state hasn't got around to filling a vacancy yet, is no reason to delay the Senate going about its business. I see no discretion for a state not to fill a vacancy. The only discretion is the time they have to make the decision, which appears to have no limit. So, effectively, they can delay the decision indefinitely, or at least until the next Senate election (vide. John Devereux), but they can't say "We refuse to fill this vacancy on principle". -- Mr Justice JackofOz (talk) 09:30, 21 August 2008 (UTC)

I can't remember where I read it (maybe on a Wikipedia talkpage for something to do with the Dismissal) but I thought the failure of Tasmania to appoint a Senator (or delay) was seen as a deliberate refusal to restore the Labor numbers instead of just a rejection of the individual and was going to be challenged in the courts when the double dissolution suddenly rendered the question academic? The whole thing seems rather more thorny than the traditional assumptions or "the 1977 referendum sorted it all out" that are sometimes raised. Timrollpickering (talk) 17:08, 21 August 2008 (UTC)

We could possibly make a statement that a State has no obligation to fill a vacancy within any particular time frame, although I'd want to see a cite about that rather than rely on my own quasi-judicial interpretations; and I wouldn't associate it with the 1977 referendum result because that didn't have any bearing on the unlimited time frame (if indeed there is one). With Devereux, the Tassie parliament did meet and consider his nomination, so even though they stalemated and the process seemed to stall after that, they couldn't be charged with refusing to fill the vacancy on principle. Devereux was rejected, not because the Tasmanian parliament ever expressed a view that they were happy getting by with only 11 senators, but because Devereux personally wasn't acceptable to a majority of members (no doubt for political reasons). Had the double dissolution not happened, for all we know there may have been other developments in the offing that would have seen Devereux or another Labor nominee being chosen. -- JackofOz (talk) 22:56, 21 August 2008 (UTC)

It does seem as though the meaning of "shall choose a person" is not particularly clear and may one day need clarifying by the courts. If it's anything other than a requirement to send someone within a reasonable time scale then any state parliament could no doubt find a way to drag out proceedings indefinitely or keep on refusing to choose a particular person (or indeed any person at all) from a party if the state parliament was bloody minded enough and/or deliberately trying to tip the balance in a tight Senate a la 1975. You're right the 1977 amendment doesn't actually touch this bit, but given the circumstances that led to it and the intention of preventing future vacancy controversies it could well come up again. Have there been any indepth analyses of the application to the Devereux situation at all? Timrollpickering (talk) 00:30, 22 August 2008 (UTC)

Yes, there was a lot of debate in 1975 about whether the Senate had "failed" to agree to the Supply bills, or had simply not yet brought it to a vote. I don't know of any other material about the Devereux case, but I'm sure there's something out there somewhere. -- JackofOz (talk) 04:51, 22 August 2008 (UTC)

Also 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. Other than in 1962 was this ever actually the case? I thought one of the minor disputes was over whether or not the terms of the unwritten convention allowed Bjelke-Petersen to demand a list and if 1962 was the exception on this rather than the norm. Timrollpickering (talk) 17:08, 21 August 2008 (UTC)

What was the 1962 circumstance you refer to? My understanding is that the relevant party provided a group of names to the premier, but usually on the clear understanding that the name at the top of the list was the only candidate the party was interested in seeing elected, and the premier would oblige by recommending to the joint sitting (single sitting in Queensland) that that name be chosen, and the joint sitting would also duly oblige. I don't know that this happened in every single case, but I thought it was the general practice. Which is why this particular issue was highlighted when the practice was departed from in Qld in 1975 when the ALP provided only one name, that of Colston. -- JackofOz (talk) 22:56, 21 August 2008 (UTC)

In 1962 Sir Frank Nicklin demanded the Queensland ALP supply a list of three names for consideration, but my understanding is that in other vacancies the relevant parties had supplied only a single name, hence Bjelke-Petersen was certainly accused of breaking at least the spirit of the convention on this by refusing to nominate Colston and instead demanding a list of three. For what it's worth Joh Bjelke-Petersen currently says:

The convention in filling Senate vacancies since 1949 had been that the State Parliament would appoint the nominee of the former Senator's political party. When Labor Senator Bertie Milliner died, Bjelke-Petersen rejected Labor's nominee to fill the vacancy, Mal Colston, and instead asked for a short list of three nominees, from which he would pick one. When the ALP refused to supply such a list, Bjelke-Petersen appointed Albert Field, an ALP member who was critical of the Whitlam government. The ALP tried to block the appointment by expelling Field, and announcing that it would expel anyone else who would accept the appointment in Colston's place, but Bjelke-Petersen went ahead with the appointment anyway.

(The whole point about a party threatening to expel anyone would get the current clause into more dilemmas - would the party expulsion be an automatic "magic wand" effect immediately upon a nomination placed in the state parliament before the choice took place or would the relevant party executive have to be convened to formally confirm expulsion had took place, with the meeting probably not happening until after the "choosing".) Timrollpickering (talk) 00:30, 22 August 2008 (UTC)

The ALP was justified in challenging Field's appointment because he had resigned from State government employ with less than the required notice, so he could technically have been ruled to be occupying an office of profit under the Crown at the time of his appointment. That would be a breach of the Constitution. It never came to a decision in the High Court, because of 11 November, so we'll never know what they might have decided if that hadn't happened. But under the ALP's own rules (to my knowledge as an outsider), any member who campaigns against an endorsed Labor candidate, or accepts an appointment as a Labor representative against the party's wishes, is guilty of a breach of the party's rules and is subject to expulsion. -- JackofOz (talk) 04:51, 22 August 2008 (UTC)

The Chapman/Kneebone 1931 case

I've just come across another case of a deceased senator being replaced by a person from a different party. Senator John Hedley Chapman (Country Party, South Australia; possibly related to Grant Chapman) died on 14 March 1931. On 1 April the state parliament chose Henry Kneebone, a member of the ALP. The premier at the time was Lionel Hill, not surprisingly a Labor premier. This seems to have created no waves at all, certainly none that have had any impact on later decades. Anyone know what the background to this was, and why it didn't become some sort of precedent for future premiers who wanted to stack the Senate in their favour? -- JackofOz (talk) 06:10, 31 August 2008 (UTC)

There were up to 12 cases before 1949 - see Talk:Gough Whitlam/archive2#Bjelke-Petersen, Colston and Field and Adam Carr's list (although a few may have been defecting Senators replaced by a member of their original party). Senators changed in both directions and even in one case between the Country and United Australia parties. I guess the big difference is that before 1949 the Senate was not elected by proportional representation so a) the results were so lopsided that one seat changing hands was unlikely to shift the balance of power whereas afterwards things are usually much tighter; and b) there was no proportionality of parties to disrupt. Timrollpickering (talk) 10:43, 31 August 2008 (UTC)

OK, thanks for that. I was under the impression that the convention had applied forever, but clearly it was only "longstanding" since 1949. Still, it surprises me that even before 1949 a premier would seize political advantage through the death or resignation of a senator from the opposing party, by appointing someone from his own party. That hardly seems like the good old Aussie "fair go", and I can't see the voters of the state concerned being particularly happy to see their wishes being ignored. I guess one could argue that it wouldn't have made any real difference given the lop-sidedness of the senate in those days, but the principle seems very questionable. -- JackofOz (talk) 13:13, 31 August 2008 (UTC)

I suspect there was an awful lot more acceptance of the "winner takes all" approach to politics and that both sides of politics regarded Senate seats as fair spoils. The system was imported from the US where to this day casual vacancies are often filled by the Governor's party not the outgoing Senator's (unless the state legislature has passed legislation; which can sometimes be as frequent as party control changes). However both the US and pre 1977 Australia also have/had by-elections for longer term vacancies so the voters would get the ultimate say.

We need to add the rest of the pre 1977 situation - it seems the referendum (tried to) prevent a repeat the 1975 controversies but also a repeat of the Gair affair of 1974. An appointed Senator only sat until the next federal election (whether House or Senate) at which point the extra Senate vacancy would be elected - a simple statewide by-election at House-only elections, but an extra seat was added to the numbers for Senate elections. This was not a problem pre 1949, but under the STV system it could change the numbers elected and the outcome. (Generally under STV in a strong two-party divide odd numbers of seats per constituency will give the stronger side the round-up advantage, even numbers give the weaker side the round-up effect.) Timrollpickering (talk) 02:22, 3 March 2012 (UTC)

A handy source for some of these issues is Anthony Green's Election Blog: Bob Carr and how Senate Vacancies are Filled, which in turn links to Senate Vacancies: Casual or Contrived? - John Nethercote. The latter includes this telling comment:

A major reason why any controversy about casual vacancies in this era [pre 1949] 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 party advantage, was practically never at stake, no matter how a casual vacancy was filled.

Timrollpickering (talk) 18:43, 4 March 2012 (UTC)

That makes a lot of sense, Tim. Politicians are not renowned for defending principles except where the desired resolution would produce an advantage for their side. Thanks. -- Jack of Oz ^{[your turn]} 20:24, 4 March 2012 (UTC)

What happens if the party doesn't exist?

What happens if the outgoing Senator was an independent, or was a member of a now-defunct political party? Presumably then that would go purely by the numbers in the parliament in that state (or territory). Or could the fall-back provision (convention) be to consider whether the former Senator was, say, 'left-wing' or 'conservative' or 'progressive' or 'a Dry'?
—DIV (120.19.11.158 (talk) 13:10, 27 June 2016 (UTC))

The state parliament would appoint whoever it felt was the representative of the outgoing Senator's political party who would survive a High Court challenge. They could set up a commission to determine it. The 1977 amendment predates formal party registration so they might read the definition of party more broadly. Usually a successful independent has some kind of support campaign group that is effectively a party. Timrollpickering (talk) 13:41, 27 June 2016 (UTC)

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Pre 1977 Senate conventions

Prior to 29 July 1977, it was 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:

Firstly can we check exactly when the amendment took effect? I've seen it written that Janine Haines replacing Steele Hall was the last vacancy before it did, hence why this isn't as firm a precedent for successor parties as it at first seems.

Secondly there appear to only be two occasions when a list was asked for, both in Queensland. In 1962 the opposition Labor Party was asked for and supplied a list of three names. In 1975 they stood firm on their choice of canddiate. I thought the standard was actually for the outgoing Senator's party to supply a single name.

Finally I'd have to track down the article (without Antony Green's blog the link is harder to locate) but ISTR the party conventions were only really formed in the early 1950s, beginning with a vacancy in Western Australia from the state opposition party and the state premier resisted calls to take the seat. Prior to that had there been much discussion on this? (Also "same party" would have been problematic on the right before 1945 - multiple mergers, state parties dissenting from the federal line, different right parties at the state & federal level etc... meaning the party from up to 6&1/2 years earlier may have lapsed). Timrollpickering 09:56, 10 January 2018 (UTC)