Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Disputed Returns and Qualifications Committee - Report on Petition of Joseph Vardon against the choice by the Parliament of South Australia of Hon. J. V. O'Loghlin as a Senator for that State


Download PDF Download PDF

1 9 0 7 .

(SECOND SESSION.)

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA.

T ZEE IE S E N A T E .

R E P 0 R T OF TH E

COMMITTEE OF DISPUTED RETURNS AND QUALIFICATIONS UPON THE

PETITION OF JOSEPH VARDON

AGAINST THE CHOICE BY THE HOUSES OF THE PARLIAM ENT OF SOUTH AUSTRALIA OF

THE HONORABLE JAMES VINCENT O’LOGHLIN

AS A SENATOR FOR THE STATE OF SOUTH A U ST R A L IA ;

T O G E T H E R W IT H T H E

MINUTES OF PROCEEDINGS OF THE COMMITTEE

A N D

A P P E N D I C E S .

Brought up by the Chairman, read and ordered to be printed, 9th October, 100?.

P rin te d and P ublished for the G o v er n m e n t of th e C om m onw ealth of A u st ra l ia by J . K e m p , A cting G overnm ent P rin te r for the S ta te of V ictoria.

S. 2 . — Ρ .Π 0 4 4 .

645

according to the judgment of Mr. Justice Barton, fulfil that condition. Section 15, therefore, was not applicable to the vacancy which arose. There was a vacancy, but it was not caused by “ the place ot a Senator becoming vacant ” as required by Section 15, but because of the place of a Senator which should have been filled by valid popular election in December, 1906, never having been so filled.

The people, through no fault of their own, had not exercised their choice. They had gone through the form of an election, but had failed to elect. G. If, as we have already pointed out, Section 15 presupposes an original 10 or antecedent choice of a Senator otherwise than under that Section, such original or antecedent choice can only, according to Section 7, be “ directly by the people ”—not a mere form of choice, but an effective choice, and, obviously, a supposed choice cannot be effective in the case of a person declared by the appointed tribunal not to have been “ chosen by the people ”—a person as to w hom the “ attempted

choice ” was void. It was not the place or seat occupied in fact by Mr. Vardon which was declared void, but the election of 12tli December, 1906, by virtue of which he claimed to take and hold the seat. A man is either a Senator or not, and under the judgment of 20

Mr. Justice Barton Mr. Vardon never was a Senator, or held the place of a Senator. IT. Section 15 is further limited to the case of a Senator whose place becomes vacant “ before the expiration of his term of service.”

Mr. Vardon’s term of service was either six years or nothing. It could only be for six years by virtue of the people’s choice. But the Court decided the people made no choice. Therefore, Mr. Vardon had no term of service. His place, whether he was called a

Senator or not, cannot be said to have become vacant “ before the expiration ” of such a term when he was displaced, because he had no 30 term at all, and there had been no election to give him right or title to a term of service, or to serve at all. A void election can give no “ term of service.” I. “ The place of a Senator ” to which the Houses of the State Parliament,

or the Governor with the advice of the State Executive, may appoint, must be created in the first instance by the direct choice of a Senator, by the people, and must become vacant before the expiration of his term of service. Mr. Vardon was supposed to have been chosen by the people as Senator, but the Court of Disputed Returns

decided he was not so chosen ; that “ the attempted choice ” was void, 40 and therefore as there was no “ place of a Senator ” created by his supposed election or choice, there was none to “ become vacant” within Section 15—to bring th e «provisions of that Section into operation. During the interval between the ineffectual choice and the judgment declaring it was no choice Mr. Vardon may

have been called or regarded as a Senator, and may have

acted as though he were one—but he was not, and his being so called, or having so acted, could not make him a Senator ,or put him in any different or better position than if Mr.

Justice Barton had tried the petition and delivered judgment before 50 the Senate met or before Mr. Vardon had an opportunity of taking his seat. The fact of his having sat could not give him a term of service unless a person not chosen by the people can, by taking his

seat in the Senate, become or make himself the choice of the people. J. Even if it could be contended, though we think it cannot, that Mr. Vardon had a term of service until the decision of the Court of Disputed Returns, it is plain that even then his place did not become

vacant “ before the expiration of his term of service,” as required by Section 15. The decision itself ended the supposed term—was, in fact, its expiration—and therefore the place became vacant not 60 “ before,” as Section 15 requires, but on or simultaneously with its

expiration.

7

9

If this were inconsistent with the Constitution it could not prevail, as the Electoral Act cannot override the Constitution; but it does not appear to be in any way inconsistent. It seems rather to give effect to the principle of the Constitution that the people must, in the first

instance, choose, and that they have not so chosen if the election is declared void, and should he given an opportunity of doing so.

P. Section 108 of the Commonwealth Electoral Act was also cited to show that “ a Supplementary Election ’’ Avas contemplated, and provided for—applicable where necessary to one or more vacancies, and it vvas contended that the Senate election for the State of South Australia 10 did partially fail as regards Mr. Vardon, inasmuch as though nominally “ returned as elected,” the election and return were both void, and as though there had been no return at all as regarded

Mr. Vardon, and therefore the full number was not validly returned as elected. Your Committee agree with this Anew.

Q. It is truly suggested that a popular election means expense. Your Committee respectfully think that a question of expense should ' not be permitted to defeat the constitutional right of the people to

choose their own Senators, or to justify the Senate in recognising an appointment or choice made by a State Legislature or indeed by 20 any other person not clothed with clear authority to make it.

R. Your Committee respectfully point out that it would scarcely be just that the people should forfeit their right to choose a Senator owing to an attempted choice having failed through no fault of their own, and further that if the right of the State Parlia­

ment of South Australia is maintained, there will he an obvious temptation to those in a minority of the people, but temporarily in a majority in Parliament to compass the voiding of an election in order to secure the appointment of their own nominees by a friendly

Parliament. 30

6. Your Committee therefore have arrived at the conclusion that there Avas not a vacancy within the meaning of Section 15, and that the Houses of Parliament of the State of South Australia were not entitled to choose a person to hold the vacant place in the representation of the said State in the Senate.

Your Committee therefore respectfully report, in terms of the prayer of the petition, that the choice by the Houses of Parliament of the State of South Australia of the Honorable J. V. O’Loghlin to hold the place of a Senator for the said State is void, and that the Honorable J. Y. O’Loghlin has not been duly chosen or elected as a Senator, or to hold the place of a Senator for the said State, and has no right or

title to sit, A rote, or act as a Senator, and that the seat of one Senator for the said 40 State is vacant.

7. Your Committee make no aAvard as to costs and recommend that the sum of Fifty pounds deposited by the Petitioner be returned to him.

J. H. SYMON,

Committee Room, Chairman.

. 9th October, 1907.

ADDENDUM.

“ As the question is a difficult point of Constitutional Law, Avliicli any decision of the Senate will not finally settle, avc consider the question a proper one to refer to the High Court.

HUGH DE LARGIE.

H. TURLEY.”

649 >

11

WEDNESDAY, 4th SEPTEMBER, 1907.

Present :

Senator Sir J. H. Sy m o n, in the Chair;

Senator de Largie, Dobson, Macfarlane,

Senator Turley, Walker.

The minutes of the previous meeting were read and confirmed. The Chairman stated th at he had moved in the Senate, and th at the Senate had carried the fol­ lowing resolutions :— (1) That the Committee of Disputed Returns and Qualifications have' power to send for per­

sons, papers, and records in connexion with the inquiry into the petition of Joseph Vardon against the choice of the Honorable Janies Vincent O’Loghlin as a Senator for the State of South Australia. (2) That the Standing Orders be suspended in order to enable the Committee of Disputed Returns and Qualifications, if necessary, to sit during the sittings of the Senate. The parties were then called in. , Mr. A. W. Piper appeared for the Petitioner, Mr. Joseph Vardon. Senator O’Loghlin appeared in person. The Acting Clerk of the Parliaments produced the following :— (1) Copy of the Order of the Court of Disputed Returns, made at Adelaide on 31st May, 1907,

declaring the election of Members of the Senate for the State of South Australia abso­ lutely void in respect of the return of Joseph Vardon. (2) The original certificate, dated 13th July, 1907, of His Excellency the Governor of South Australia to His Excellency the Governor-General, of the choice on the 11th July, 1907,

by the Houses of the Parliament of South Australia, of the Honorable Janies Vincent O’Loghlin to fill the vacancy in the representation of South Australia in the Com­ monwealth Senate caused by the decision of the Court of Disputed Returns that the election of a Senator on the 12th December, 1906, was void in respect of the return

of Mr. Joseph Vardon. (3) The original petition of Joseph Vardon, dated the 22nd August, 1907, against the choice by the. Parliament of South Australia of the Honorable James Vincent O’Loghlin as

a Senator for the State of South Australia; which petition was lodged with the Acting Clerk of the Parliaments on the 23rd August, 1907. The facts as set forth in the said petition of Joseph Vardon were admitted by Senator O’Loghlin.

Mr. Piper then addressed the Committee on behalf of the Petitioner. Senator O’Loghlin stated that, at present, he was not prepared to address the Committee, and asked th at the Committee adjourn till to-morrow. The parties withdrew.

Committee deliberated. Resolved—That the Committee meet again to-morrow at half-past 10 o’clock. The parties were again called in and informed of such decision.

The Committee adjourned till half-past 10 a.m. to-morrow, ι

THURSDAY, 5th SEPTEMBER, 1907.

Present :

Senator Sir J. H. Sy m o n, in the Chair ;

Senator de Largie, Senator Turley,

Dobson, Walker.

Macfarlane,

The minutes of the previous meeting were read and confirmed. Mr. A. W. Piper, counsel for the Petitioner, and Senator O’Loghlin were in attendance. Senator O’Loghlin addressed the Committee in reply to Mr. Piper. Mr. Piper again addressed the Committee.

Senator O’Loghlin, on the invitation of the Chairman, added some additional observations. The parties withdrew. Committee deliberated. Resolved—That the date of the next meeting of the Committee be fixed by the Chairman so as best to suit the convenience of all members of the Committee.

Committee adjourned.