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Tuesday, 17 November 1964

Senator ANDERSON - I do not want to add a great deal to what I have said already on the matter that was raised by Senator Cohen. His interpretation of the provisions of section 21 and of the procedure for the Clerk of the Parliament, in the absence of the President, to notify the Governor-General of the existence of a casual vacancy, was factual. In this instance, Senator Vincent died on the evening of 9th November. Writs for the Senate election had been issued on 26th October and were returnable on 23rd January next year. Nominations had closed at midday on 9th November, shortly before the senator's death. The Clerk, in the absence of the President, notified His Excellency, the Governor-General, by letter dated 10th November of the circumstances. All the procedures laid down in the Constitution were put in train.

Senator Cohenset forth a legal view. There have been no precedents for his view since Federation. There are precedents for States choosing to fill a casual vacancy when a vacancy has arisen after the writs have been issued. I shall refer to two of them which, 1 think, will make my point clear. Let us take, first, the case of Senator Badman of South Australia. In that instance the writs were issued on 24th September 1937 and Senator Badman resigned on 30th September 1937, four days later. Nominations had not closed at that time. In fact, they did not close until 2nd October. That notwithstanding, the writs having been issued on 24th September - I do not claim that is the reason for what was done but these are the facts and this is the precedent - Senator McBride was chosen by the South Australian Parliament on 21st October 1937 to fill the vacancy.

Senator Dittmer - Was that a Tory Government?

Senator ANDERSON - I am trying to keep this debate on a very high level and I would not like the honorable senator to confuse the issue. The facts are as I have stated* them. The writs were issued on 24th September and the senator resigned on 30th September, before nominations had closed. Notwithstanding all that, the South Australian Parliament, in accordance with the precedent which had been followed since Federation, selected Senator McBride to fill the vacancy.

Then we had a case in New South Wales in which Sentor Duncan resigned on 1st December 1931 after writs had been issued on 28th November 1931. In this case also nominations had not closed. The election was not to be held until 19th December. Senator Mooney was chosen by the State Parliament on 23rd December to fill the vacancy.

The precedent which has been followed since Federation is laid down clearly in section 15 of the Constitution. The present approach, doubtless, follows the same procedure. Section 183 of the Commonwealth Electoral Act provides for the submission of a petition to the Court of Disputed Returns, but, of course, the appointment of a successor can be challenged only after the appointment has been made. It is significant that in the cases I have quoted there is no suggestion of a challenge to the appointment of senators elected af ter the issue of the writ. To sum up, the practice has been to regard the election- as having commenced at the issue of the writ. In these circumstances, I suggest that the very interesting submission that was made by Senator Cohen does not appear to have any application.

Question resolved in the affirmative.

Bill read a first time.

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