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Wednesday, 16 February 1977

Mr ELLICOTT (WentworthAttorneyGeneral) - I move:

That the Bill be now read a second time.

The purpose of this Bill is to write into the Constitution the principle that a casual Senate vacancy should be filled by a member of the same political party as the former senator belonged to. The filling of casual Senate vacancies is governed by section IS of the Constitution, which provides for the new senator to be chosen by the Parliament of the State for which the former senator was chosen. If the Parliament is not in session at the time, the Governor of the State, with the advice of its Executive Council, may make a temporary appointment.

The procedure in section 15 preserves the principle that in the Senate the States are to be represented equally. But it does not ensure that a vacancy will be filled in a way that will preserve the relative voting strengths of the political parties represented in the Senate. Nevertheless from the introduction of proportional representation in 1949 until the vacancy caused by Senator Murphy's appointment to the High Court in 1975 the practice was observed of filling casual vacancies by the appointment of a person belonging to the same political party as the former senator.

When Senator Murphy had to be replaced this practice was questioned. Questions arose as to whether it was incumbent on the New South Wales Parliament to replace him with a member of the Australian Labor Party. There were some who felt that there was a convention which required the vacancy to be filled on that basis. But others took the contrary view. In the result, as honourable members will well remember, the person chosen to replace Senator Murphy was not a member of the Labor Party. In choosing the person to replace Senator Murphy the New South Wales Parliament quite clearly acted within the strict terms of the Constitution. Whether it breached a convention is a matter on which opinions have, and no doubt wil continue, to differ.

Similar questions arose in relation to the person chosen by the Queensland Parliament to replace the late Senator Milliner. The person chosen was a member of the late Senator Milliner's party but had not been nominated by it. More recently, however, following the death of the late Senator Greenwood, the filling of his place followed the convention. He was replaced by a person who was a member of the political party to which the late Senator belonged.

The manner in which casual Senate vacancies should be filled was discussed at the Hobart meeting of the Constitutional Convention last October. On that occasion different views were expressed as to what the principles should be but there was a consensus that the present state of uncertainty that exists in regard to the matter is undesirable. The Convention passed a resolution in the following terms:

That this Convention affirms the principle that a casual vacancy in the Senate which occurs by reason of the death of a Senator or the disqualification or resignation of a Senator caused by bona fide illness or incapacity, should, in order to maintain the principle of proportional representation and the wishes of the people of the State at the relevant Senate election, be filled by a member of the same political party as the Senator whose vacancy is to be filled, but in reaffirming this principle the Convention recommends that the Constitution be amended to provide that the person elected by the Houses of Parliament of the State should hold office for the balance of the term of the Senator whose place he is taking.

The Government has concluded that the appropriate course is to invite the people of Australia to write provisions into the Constitution which will make clear and certain the manner in which Senate casual vacancies are to be fined. The effect of the amendments proposed is that a Senate casual vacancy will have to be filled by a person chosen from the same political party as the person he is to replace. This wil ensure the preservation of the relative strengths of the political parties in the Senate before a vacancy occurs. Doubt was expressed in the 1959 report of the Joint Parliamentary Committee on Constitutional Review and in a report of Standing Committee D of the Australian Constitutional Convention whether the concept of a political party is sufficiently certain in its meaning to be written into a provision in the Constitution. I have considered this question but am satisfied that the provision as drafted in the present Bill will operate with certainty of application to the circumstances of Australian political life. It is practicable therefore to insert the provision in the Constitution rather than leave the matter to be governed by a convention which would be uncertain and lead inevitably to debates of the kind that have already taken place.

The amendment will operate only when the senator chosen by the people- that is at an electionwas, at the time he was chosen, publicly recognised by a political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate. The replacement of senators who were elected as independents will not be affected. If the person who has been chosen as a replacement ceases before taking his seat to be a member of the party to which the former senator belonged, he will be deemed not to have been chosen or appointedunless the reason why he ceased to be a member of that party was that the party itself ceased to exist.

One question that was debated at the Hobart meeting was whether any amendment of the Constitution or a convention governing the manner of filling Senate casual vacancies should apply to all vacancies no matter how they arose, or whether they should be applicable only in the case of vacancies caused by death, disqualification or resignation cause by bona fide illness or incapacity. The resolution passed at the Hobart meeting in fact supported the view that an amendment should be confined to vacancies of this latter kind. The Government has, however, concluded that it would not be desirable to have different rules applying for different types of Senate casual vacancies and the amendment provided for in the present Bill will accordingly apply to all Senate vacancies no matter how they arise.

In accordance with the resolution passed at the Hoban meeting a person appointed as a replacement senator will hold office under the proposed amendment for the balance of the original senator's term, instead of until the next House of Representatives or Senate election as at present. One matter which the amendments make clear is that a replacement senator can himself be replaced. Any subsequent replacement will, however, like the original replacement, have to be on the basis that the relevant political party is always the party for which the original senator was endorsed at the time he was chosen by the people. The Government would hope that this Bill will be supported on both sides of the House. This, more than anything else, will convince the electorate that the proposed amendments are desirable and should be accepted. I commend the Bill to the House.

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