Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Tuesday, 17 November 1964


Senator COHEN (Victoria) .- I rise to speak on the motion for the first reading of this Bill, and to exercise my right under Standing Order 190 to speak on matters not relevant to the subject matter of the Bill. I desire to refer to the position which arose this morning when the Government blocked any discussion of the matter of urgency raised by me in relation to the need for immediate action to enable the vacancy in the Senate caused by the death of Senator Vincent to bc filled at the election for senators to be held in Western Australia on 5th December next. This was the second move within hours to prevent the discussion of a matter of great public importance and of great urgency. Yesterday I gave notice of my intention to move -

That the Senate by resolution refers to the Court of Disputed Returns the following question: - Whether the casual vacancy in the Senate caused by the death of Senator Vincent on the 9th day of November, 1964, should be filled at the election of Senators for the State of Western Australia to be held on the 5th day of December, 1964 (or on such later date to which the said election might be postponed), or at the first election thereafter, being either a general election of members of the House of Representatives or an election of Senators for the State of Western Australia.

In the early hours of this morning, as I told the Senate earlier, the Leader of the Opposition, Senator McKenna, was informed by the Leader of the Government in the. Senate (Senator Paltridge) that time would not be granted to debate my motion. I accordingly withdrew that motion this morning and submitted a motion for the adjournment of the Senate to discuss a matter of urgency, to which I have referred.

I want to. make it clear that on this issue the Government has shirked its responsibility, relying on the invincible logic of numbers. What it has blocked is a proper and responsible move by the Opposition to ensure that senators for Western Australia, without exception, are elected by the people of Western Australia on 5th December. The Government has been unco-operative and unwilling to permit discussion of the matter. Its efforts to prevent a debate on the issue have shown a cynical disregard of the democratic process.

T want to come now to the substance of the matter that I desire to put to the Senate. The problem can be stated shortly. Senator Vincent died on 9th November. His place in the Senate has therefore become vacant, and a substantial and urgent question arises as to whether his successor must be chosen at the election of senators to be held in Western Australia on 5th December 1964 or at the next election after that, which will be either a general election of members of the House of Representatives or an election of senators for the State of Western Australia. The term for which Senator Vincent was elected expires on 30th June 1968. In respect of the election of senators which is to be held in Western Australia on 5 th December next, the writ was issued on 26th October 1964. Pursuant to the power conferred on the Governor of Western Australia by section 12 of the

Constitution, it called for nominations for the election of five senators for the State of Western Australia. The writ named 12 noon oh 9th November as the closing time for nominations. It appointed 5th December 1964 as the day on which the poll was to be taken. Senator Vincent died on 9th November, the day on which nominations closed.

Section 21 of the Constitution requires -

Whenever a vacancy happens in the Senate, the President, or if there is no President or if the President is absent from the Commonwealth, the Governor-General, shall notify the same to the Governor of the State in the representation of which the vacancy has happened.

In (his case, Western Australia is that State. Apart from periodical vacancies - that is, vacancies occurring at the regular expiration of the term of senators - a casual vacancy may occur on the resignation of a senator. That is covered in section 19 of the Constitution. Section 20 provides -

The place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the Senate, fails to attend the Senate.

A senator can become disqualified by reason of the happening of any of the events mentioned in section 45. The death of a senator is not specifically mentioned, but the senator's place obviously becomes vacant upon his death.

The provisions for filling a vacancy are set out in section 15 of the Constitution, which reads -

If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen shall, sitting and voting together, choose a person to bold the place until the expiration of the term, or until the election of a successor as hereinafter provided, whichever first happens. But if the Houses of Parliament of the State are not in session at the time when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State, or until the election of a successor, whichever first happens.

At the next general election of members of the House of Representatives, or at the next election of senators for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the date of his election until the expiration of the term.

Section 15 goes on to provide -

The name of any senator so chosen or appointed shall be certified by the Governor of the State to the Governor-General.

The Leader of the Opposition sought information from the Leader of the Government in the Senate as to whether the vacancy had been notified to the Governor of Western Australia in accordance with section 21 of the Constitution. I understand that he was advised informally that the notice was given on 10th November last. Upon receipt of the notification, the Houses of Parliament of Western Australia, sitting and voting together, shall be required by section 15 to choose a person to hold the place until the expiration of Senator Vincent's term - that is, 30th June 1968 - or until the election of a successor as provided in the Constitution, whichever first happens. The successor has to be chosen at the next general election of members of the House of Representatives or at the next election . of senators, whichever first happens.

No appointment' has yet been made by the Houses of the Parliament of Western Australia. If the choice should be made before 5th December, the right of the person chosen to continue- to hold the place after the return of the writ in the election of senators for Western Australia to be held on 5th December 1964 would depend upon the answer to the simple question which I want to discuss, namely, whether Senator Vincent's successor should be chosen at this forthcoming election.

Although no formal announcement has been made by the Governor of Western Australia so far as I am aware, no writ has been issued for the election of a person to fill the long- casual vacancy at the election of senators for Western Australia on 5th December 1964. Section 12 of the Constitution empowers the Governor of any State to issue writs for elections of senators for the State. It may therefore be assumed in the -absence of some prompt indication to the contrary - we certainly have not had that - that the Government of Western Australia does not intend to initiate the procedures necessary to provide for the election of six senators for the State of Western Australia on 5th December next, with the long casual vacancy being filled according to the requirements of section 9 (2.) of the Senate Elections Act 1903-1949. That section provides for the method of the filling of the vacancies both in relation to periodical vacancies and casual vacancies, long or short. In this case, it is a long casual vacancy.

The position which seems to be that taken by the Government of Western Australia and which is apparently held by the Chief Electoral Officer for the Commonwealth can only be justified on the view that the election to be held on 5th December next is not the next election of senators for the State of Western Australia within the meaning of section 15 of the Constitution to which I have referred, and that Senator Vincent's successor should be chosen at the next election of members of the House of Representatives, unless there should bc a prior election of senators. The Chief Electoral Officer contends that the writ having been issued, the impending election has already commenced and therefore cannot be said to be the next election. Although the Opposition has been met by a wall of silence, it seems clear that this is the view that has been accepted by the Government of Western Australia and by the Commonwealth Government. It rests primarily on what was said by Chief Justice Griffith and Justices Barton and Higgins in the case of Vardon v. O'Loghlin in 1907, which was a case that dealt with a somewhat different situation relating to a Senate vacancy. I do not propose to take the time of the Senate to discuss the particular circumstances of that case except to mention that, in that case, referring to the term "election" as used in section 13 of the Constitution - and that section deals with periodical vacancies and not casual vacancies - the learned judges said -

The term "election" hi that section docs not mean the day of nomination or the polling day atone, but comprises the whole proceedings from the issue of the writ to the valid return.

I can see the Leader of the Government in the Senate (Senator Paltridge) nodding his head in agreement because this is obviously the view upon which the Government of Western Australia and the Commonwealth Government are proceeding.


Senator Paltridge - That is right.


Senator COHEN - However, this is not the only view, and it may not be the better view. As against the interpretation which was applied by Chief Justice Griffith in 1907 in relation to section 13, there would seem to be a strong case, I would suggest, for giving the word " election " a different meaning in the context of section 15 from that which it has been held to bear in section 13. In other words, the opposing view is that under section 15 the expression "until the election of a successor " refers to the result of the polling; and, indeed, that the word " election " in the phrase " chosen at the next election of senators " is synonymous with the poll. Under section 15 the vacancy is not filled in the election, but at the election. One cannot vote " at the whole proceedings ", the term used by the judges in Vardon's case. In short, section 15 contemplates the election taking place at a point of time. The word election is not used in the sense of a series of processes beginning with the issue of the writ and culminating with the return of the writ, but in the sense of the actual polling process and the result thereof.

I submit to the Senate that the Constitution envisages voting by the people and that section 15 requires the successor to Senator Vincent to be elected at the election of senators in Western Australia on 5th December or at some later date to which, if this view is correct, the suggested election ought to be postponed. But whether this is a correct view or not, the question is obviously one of importance. That is why we of the Opposition sought a reference to the Court of Disputed Returns. In this case the Court of Disputed Returns is the High Court of Australia".

We sought that reference under section 203 of the Commonwealth Electoral Act. The Senate has the power to refer the question to the Court under that section. This reference would have served to clarify the constitutional position for all concerned, including any appointee of the Parliament of Western Australia and the people of Western Australia. I suggest that it also would have been in the best interests of the Senate itself, for the Senate would not desire any person to take Senator Vincent's place as a senator or continue as a senator unless any doubts about his constitutional rights to do so had been resolved by the High Court or by some other tribunal capable of making a determination in the matter. I remind the Senate that the jurisdiction conferred on the Court of Disputed Returns by section 203 of the Commonwealth El(toral Act is very wide. The Senate may by resolution refer to the Court -

Any question respecting the qualification of a Senator or of a Member of the House of Representatives or respecting a vacancy in either House of the Parliament . . .

The section provides that the Court -

Shall thereupon have jurisdiction io 'hear and determine the question. .

Section 204 requires the President of the Senate to transmit to the Court a statement of the question upon which the determination of the Court is desired, together with papers, documents, etc' There would seem to be no room for doubt that the question set out in the resolution 1 attempted to move was " a question affecting a vacancy in the Senate". That is what is required under section 203. Indeed, if the Court had been seized of this matter and held that Senator Vincent's successor should b? chosen at the election of senators on Sth December, it would seem to follow that a failure to have a sixth senator for Western Australia chosen at this election would leave a vacancy as from the date of the return of the writ in the forthcoming election, notwithstanding that the Parliament of Western Australia may have in the meantime purported to have appointed a person to " hold the place " until the next election thereafter whether of members of the House of Representatives or of senators.

In such an event the Court, having determined the question referred to it, might be asked to make a consequential declaration, under Section 206 (c), that there is a vacancy in the Senate. In other words, if the Court should hold that the contention I am putting now were correct, whoever is appointed bv the Parliament of Western Australia to the Senate will not in fact lawfully hold his place until the next election of the members of the House of Representatives. He will hold it lawfully only until the return of th<* writ at this forthcoming Senate election.

I put it to the Senate that the intention of the Constitution is to ensure election of senators by popular vote and that, in the case of casual vacancies occurring, the successor should be elected on the first occasion on which there is a general vote of electors in the State concerned, whether it be for members of the House of Representatives or :-for senators. Any appointee is to be regarded as a temporary holder of the place. The Constitution requires the position to be regularised at the first available opportunity.

The question is a critical one for the people of Western Australia because the answer to it will decide whether they are to be represented until the next House of Representatives election - that is, in the ordinary course of events, approximately the next two years - by a senator elected by direct vote at the elections of Sth December or by an appointee of the Government of Western Australia who would not be required to face the electors until late in 1936 although the occasion to do so is right here and now. Nowhere, is the true position better put than by Quick and Garran in their "Annotated Constitution of the Australian Commonwealth " published in 1901, the year of the Constitution. I suppose their comment on the section might be thought to be entirely unaffected by current events that happen in 1964.. They wrote contemporaneously with the founding of the Commonwealth and any comment by the learned authors is entitled to the greatest respect as it always has been in the Courts and. elsewhere. They said this of section 15 -

The choice of a person by the Houses of Parliament of a State to take the place of a senator who has ceased to act, is not regarded by the Constitution as the election of a successor; it is merely a provisional arrangement to save the expense of a special State election. The time for the triennial election might be close at hand, in which case the vacancy ' would be filled without any appreciable additional expense. If, however, the usual triennial election of senators is preceded by a general election of Members of the House of Representatives, an equally convenient and prompter method of filling the extraordinary vacancy is available. The legislative selection is only operative until the expiration of the term or the election of a successor, whichever first happens; it is merely an ad interim appointment, in order to save the State from being short of a senator, on the one hand, and to save the State the cost of a special election, on the other; the legislative appointee is not a successor of the deceased, disqualified, or resigned senator, but merely a temporary holder of the office, pending the election of a successor by the people of the State.

Apart from section 15, the general policy of the Constitution requiring direct popular elections appears from such sections as section 7, which declares that -

The Senate shall be composed of senators for each State directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.

Section 24 declares that -

The House of Representatives shall be comprised of members directly chosen by the people of the Commonwealth. . . .

In the case of Vardon v. O'Loghlin, which the High Court decided in 1907, and which dealt with a particular problem relating to a Senate vacancy, Mr. Justice Isaacs said of section 7 and 24 - and I particularly draw attention to this quotation -

The requirement in each case that members of the Parliament shall be " directly chosen by the people " is more than a mere direction, more even than a simple mandate as to the mode of election; it describes the composition of the Houses themselves, so as to express the essential nature of these Branches of the Parliament. Nothing could be more fundamental than the directly elective character of the two Houses.

Again, the same judge said in the same case -

The only title to a place and to a term of service is by direct election by the people. If such a title has once been lawfully created for the constitutional term, then, if the senator elected runs his course of service regularly, section 13 makes normal provision for the period of election of his successor; if, however, his term of service ends abruptly, as by death, resignation, or disqualification, section 15 applies. In that event the State Parliament or the State Governor in Council as the case may be does not elect a successor. There is created no new place and no new term; there is merely the nomination of a temporary occupant of the place already granted for the constitutional term by the people to the late senator, and the new occupant so chosen holds the place, not as a successor, but rather as a subsitute, and for no definite period. His occupancy ends, of course, at latest when the term ends; but it may end sooner, that is, when at the next general election of the House of Representatives or at the next election of senators for the State, the people re-grant the place definitely for the remainder of the original term of a true successor of the original senator.

In the same case, Chief Justice Griffith, and Justices Barton and Higgins said -

Section 7- which is the section providing for senators to be directly chosen by the people of the State - is the dominant provision. Those which follow, and which include provisions allowing the choice of a senator to be made in certain cases otherwise than by the people of the State, are ancillary. 1 emphasise that the clear intention of the Constitution is to let the people choose their senators, and no government has the right to by-pass the people unless the Constitution in express terms leaves the Government no other course. That is most emphatically not the case on this occasion.

We are not dealing here with a case where the casual vacancy occurs only a day or two before the poll. Senator Vincent died on 9th November, almost four weeks before Sth December which is the date appointed for the taking of the poll. There was then, and there still is, time for a supplementary writ to be issued to provide for a sixth senator for Western Australia to be chosen at the election on 5th December. Section 62 provides that the date fixed for the nomination of the candidates shall not be less than 7 days nor more than 21 days after the date of the writ. Section 63 provides that the date fixed for the polling shall not be less than 7 days or more than 30 days " after the date of nomination ". Vardon's case, to which I have referred and from which I have cited the opinions of the learned judges, supports the proposition that further writs are authorised in all cases of necessity. These steps can still be taken in time to allow the people of Western Australia to choose six and not merely five senators on 5th December. If it can be done, then it is clearly the intention of the Constitution that it should be done.

I urge the Senate to give serious consideration to the matter that I am putting, and I point out to honorable senators that what I have put contemplates, at least, the possibility that if the matter were to be referred to the Court of Disputed Returns, it might be necessary to postpone the election now fixed for Sth December. For example, if the question were referred to the Court of Disputed Returns, and this is what we have sought, and if the Court should decide that the Constitution requires that the vacancy should be filled at this election; and if the passage of time should have made it impossible to comply with the requirements of the Electoral Act before 5th December, I do not imagine that the Governor of Western Australia would wish to flout the decision of the Court. Undoubtedly, the election date would be postponed and the necessary procedures completed to enable six senators for Western Australia to be chosen at the postponed election.

The truth is that we are dealing with a very important and contentious matter. It demands the serious consideration of the Senate. I believe that the Government has only two alternatives. First, it may request the Governor of Western Australia to issue a supplementary writ for the election of a sixth senator for Western Australia at the forthcoming election. This would be the simplest way from the point of view of time and convenience. Secondly, it may refer the question to the High Court, sitting as the Court of Disputed Returns, thus facilitating an authoritative pronouncement on the meaning of the section. The Senate may refer that question to the High Court, as the Court of Disputed Returns, by the resolution of the Senate alone. That is the very purpose that I had in mind, and that the Opposition had in mind in proposing yesterday that the Senate should, at the next day of sitting, debate the motion. But the Government should certainly not take the attitude that it can let time slip by without arranging for a direct election or without agreeing that the question should be tested in the manner that we have proposed.

On behalf of the Opposition, I ask the Government to act promptly and positively and to respect the undoubted spirit of the Constitution. There is still time if the Government is willing. Let the people of Western Australia have their say. Let them have an election now. For our. part, we on the Opposition benches believe that what we are proposing is the only approach consistent with principle, and we call upon all honorable senators to support this attitude.







Suggest corrections