Casual vacancy
Encyclopedia
-
- For other instances of the term "casual vacancy", see Casual vacancy (disambiguation)Casual vacancy (disambiguation)Casual vacancy may refer to:* casual vacancies generally* Casual vacancies in the Australian Parliament...
.
- For other instances of the term "casual vacancy", see Casual vacancy (disambiguation)
In the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
, a casual vacancy is caused when a member of either house (the Senate
Australian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
or the House of Representatives
Australian House of Representatives
The House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
):
- dies
- resigns mid-term
- is expelled from Parliament and their seat is declared vacant, or
- has their election successfully challenged on the grounds that they:
- are a subject or citizen of a foreign power or under an acknowledgment of allegiance, obedience or adherence to a foreign power
- are attainted (convicted) of treason
- have been convicted and are under sentence or subject to be sentenced for an offence punishable by imprisonment for one year or longer under a State or Commonwealth law
- are an undischarged bankrupt or insolvent
- hold any office of profit under the Crown or any pension payable during the pleasure of the Crown out of any Commonwealth revenues
- have any direct or indirect pecuniary interest in any agreement with the Commonwealth Public Service in any way other than as a member in common with other members of an incorporated company consisting of more than 25 persons
- take the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors
- directly or indirectly take or agree to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State
- have been convicted of bribery, undue influence or interference with political liberty, or have been found by the Court of Disputed Returns to have committed or attempted to commit bribery or undue influence when a candidate (the disqualification is for two years from the date of the conviction or finding), or
- are of unsound mind.
Casual vacancies are handled in different ways depending on the house concerned.
Casual Senate vacancies in the representation of the States
When a Senate seat representing one of the six states becomes vacant, Section 15 of the Australian ConstitutionConstitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
requires the parliament
Parliaments of the Australian states and territories
The Parliaments of the Australian states and territories are legislative bodies within the federal framework of the Commonwealth of Australia. Before the formation of the Commonwealth in 1901, the six Australian colonies were self-governing, with parliaments which had come into existence at various...
of the relevant state
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
to choose a replacement. This is done in a joint sitting of the upper and lower house (except for Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
, which has a unicameral parliament
Unicameralism
In government, unicameralism is the practice of having one legislative or parliamentary chamber. Thus, a unicameral parliament or unicameral legislature is a legislature which consists of one chamber or house...
). In the event that the state parliament is not in session, the Governor of the state
Governors of the Australian states
The Governors of the Australian states are the representatives of the Queen of Australia in each of that country's six states. The Governors perform the same constitutional and ceremonial functions at the state level as does the Governor-General of Australia at the national level...
(acting on the advice of the state's executive council
Executive Council (Commonwealth countries)
An Executive Council in Commonwealth constitutional practice based on the Westminster system is a constitutional organ which exercises executive power and advises the governor or governor-general. Executive Councils often make decisions via Orders in Council.Executive Councillors are informally...
) may appoint the replacement, but such an appointment lapses if it is not confirmed by a joint sitting within 14 days after the beginning of the next session of the State Parliament.
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
Political party
A political party is a political organization that typically seeks to influence government policy, usually by nominating their own candidates and trying to seat them in political office. Parties participate in electoral campaigns, educational outreach or protest actions...
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. In 1975, both these conventions were breached - in the former case, twice.
On 9 February 1975, Lionel Murphy
Lionel Murphy
Lionel Keith Murphy, QC was an Australian politician and jurist who served as Attorney-General in the government of Gough Whitlam and as a Justice of the High Court of Australia from 1975 until his death.- Personal life :...
(Australian Labor Party
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
, New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
) resigned from the Senate to take up an appointment as a judge of the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
. On 27 February, the NSW Liberal
Liberal Party of Australia
The Liberal Party of Australia is an Australian political party.Founded a year after the 1943 federal election to replace the United Australia Party, the centre-right Liberal Party typically competes with the centre-left Australian Labor Party for political office...
Premier Tom Lewis
Tom Lewis
Tom Lewis may refer to:*Tom Lewis , former Premier of New South Wales*Tom Lewis , Scottish chef*Tom Lewis , Australia*Tom Lewis , British obstetrician...
appointed Cleaver Bunton
Cleaver Bunton
Cleaver Ernest Bunton AO OBE was a long serving Mayor of Albury, New South Wales, Australia, who came to national prominence in 1975 when he was controversially appointed to the Senate.-Early life:...
, a former long-serving Mayor of Albury
Albury, New South Wales
Albury is a major regional city in New South Wales, Australia, located on the Hume Highway on the northern side of the Murray River. It is located wholly within the boundaries of the City of Albury Local Government Area...
, who was not affiliated with any political party. Bunton sat as an independent senator.
On 30 June 1975, the Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
Labor Senator Bertie Milliner
Bertie Milliner
Bertie Milliner was an Australian trade unionist, politician and Senator, representing the Australian Labor Party . He would have been a minor figure in Australia’s political history but for the events that followed his sudden death...
died suddenly. The Labor Party gave only one replacement name to the Country Party
National Party of Australia
The National Party of Australia is an Australian political party.Traditionally representing graziers, farmers and rural voters generally, it began as the The Country Party, but adopted the name The National Country Party in 1975, changed to The National Party of Australia in 1982. The party is...
Queensland Premier Joh Bjelke-Petersen
Joh Bjelke-Petersen
Sir Johannes "Joh" Bjelke-Petersen, KCMG , was an Australian politician. He was the longest-serving and longest-lived Premier of Queensland, holding office from 1968 to 1987, a period that saw considerable economic development in the state...
- that of Mal Colston
Mal Colston
Malcolm Arthur "Mal" Colston , Australian politician, was a Senator in the Parliament of Australia representing the state of Queensland between 1975 and 1999...
. However, on 3 September, at Bjelke-Petersen's instigation, the Parliament of Queensland
Parliament of Queensland
The Parliament of Queensland is the legislature of Queensland, Australia. According to the state's constitution, the Parliament consists of the Queen and the Legislative Assembly. It is the only unicameral state parliament in the country, the upper chamber, the Legislative Council, having been...
appointed Albert Field
Albert Field
Albert Patrick Field was an Australian who was a French polisher plucked from obscurity to become a Senator in 1975. The circumstances of his appointment were instrumental in precipitating the 1975 Australian constitutional crisis.Queensland ALP Senator Bertie Milliner died suddenly on 30 June 1975...
to the vacancy. Although he had been a member of the Labor Party for 30 years, Field was now openly critical of the Labor government of Gough Whitlam
Gough Whitlam
Edward Gough Whitlam, AC, QC , known as Gough Whitlam , served as the 21st Prime Minister of Australia. Whitlam led the Australian Labor Party to power at the 1972 election and retained government at the 1974 election, before being dismissed by Governor-General Sir John Kerr at the climax of the...
, and he was immediately expelled from the party for accepting the appointment. Field took his seat in the Senate as an independent. However, there were doubts as to his constitutional eligibility to sit at all; although he had resigned from the Queensland Department of Education the day before he was appointed, the Education Act (Qld) required three weeks notice of resignation and he was therefore technically still in Crown service (this technicality had been ignored many times in the past). The Labor Party immediately challenged Field's appointment in the High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, and he was on leave from the Senate from 1 October for the remainder of his short-lived term, which ended when the parliament was dissolved on 11 November.
On 21 May 1977, a referendum
Australian referendum, 1977 (Senate Casual Vacancies)
The referendum of 21 May 1977 approved an amendment to the Australian constitution concerning the filling of casual vacancies in the Senate. Technically it was a vote on the Constitution Alteration 1977 which, after being approved in the referendum, became law on 29 July of the same year.Prior to...
was held on the question of whether the Constitution should be changed to require future Senate casual vacancies to be filled by a member of the party represented by the former senator at the time of their election, if the State Parliament chooses to fill the vacancy. The referendum was passed and came into effect on 29 July 1977. Where a senator had been elected representing a certain party, and changed allegiances to a different party mid-term, and then died or resigned, the replacement senator would be a person representing the first party. This was first implemented when Senator Steele Hall
Steele Hall
Raymond Steele Hall was the 36th Premier of South Australia 1968-70, a senator for South Australia 1974-77, and federal member for the Division of Boothby 1981-96.-Biography:...
, who at the time of his election represented the Liberal Movement but had later changed to the Liberal Party of Australia
Liberal Party of Australia
The Liberal Party of Australia is an Australian political party.Founded a year after the 1943 federal election to replace the United Australia Party, the centre-right Liberal Party typically competes with the centre-left Australian Labor Party for political office...
, resigned and was replaced by Janine Haines
Janine Haines
Janine Haines, AM , Australian politician, was the first female federal parliamentary leader of an Australian political party. An Australian Democrat, she was also the first member of that party to enter the federal parliament after the party's formation...
. She represented the Australian Democrats
Australian Democrats
The Australian Democrats is an Australian political party espousing a socially liberal ideology. It was formed in 1977, by a merger of the Australia Party and the New LM, after principals of those minor parties secured the commitment of former Liberal minister Don Chipp, as a high profile leader...
and was chosen because the Liberal Movement had merged with the Democrats.
Casual Senate vacancies in the representation of the Territories
When a Senate seat representing the Australian Capital TerritoryAustralian Capital Territory
The Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory...
(ACT) or the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
(NT) becomes vacant, the replacement senator is chosen by the ACT Legislative Assembly
Australian Capital Territory Legislative Assembly
The Australian Capital Territory Legislative Assembly is the unicameral legislature of the Australian Capital Territory...
or NT Legislative Assembly
Northern Territory Legislative Assembly
The Legislative Assembly of the Northern Territory is the unicameral parliament of the Northern Territory in Australia. It sits in Parliament House, located on State Square, close to the centre of the city of Darwin.-History:...
, under s.44 of the Commonwealth Electoral Act 1918. Where the assembly is not in session, the choice is made by the Chief Minister of the ACT
Chief Minister of the Australian Capital Territory
The Chief Minister of the Australian Capital Territory is the head of government of the Australian Capital Territory. The leader of party with the largest representation of seats in the unicameral Australian Capital Territory Legislative Assembly usually takes on the role...
or the Administrator of the NT
Administrator of the Northern Territory
The Administrator of the Northern Territory is an official appointed by the Governor-General of Australia to exercise powers analogous to that of a state governor...
, as the case may be. This process was used for the first time on 18 February 2003, when Gary Humphries
Gary Humphries
Gary John Joseph Humphries has been a member of the Australian Senate representing the Australian Capital Territory for the Liberal Party of Australia since 2003...
was chosen by the ACT Legislative Assembly to replace Margaret Reid
Margaret Reid
Margaret Elizabeth Reid AO is a former Australian politician. She was the first woman to be President of the Australian Senate.-Early years:...
, who had resigned from the Senate on 14 February.
Prior to the ACT gaining self-government in 1989, ACT and NT casual Senate vacancies were the subject of a different law: s.9 of the Senate (Representation of Territories) Act 1973, as amended by the Senate (Representation of Territories) Amendment Act 1980. Under this provision, the replacement senator was elected by a joint sitting of both houses of the Federal Parliament. This only ever occurred twice:
- when Margaret ReidMargaret ReidMargaret Elizabeth Reid AO is a former Australian politician. She was the first woman to be President of the Australian Senate.-Early years:...
was elected on 5 May 1981 to replace the deceased ACT Senator John KnightJohn Knight (Australian politician)John William Knight was an Australian politician. He represented the Australian Capital Territory in the Senate, for the Liberal Party of Australia, from 1975 until his death in 1981.... - when Bob McMullanBob McMullanRobert Francis McMullan is an Australian former politician who represented the Australian Labor Party in both the Senate and the House of Representatives....
was elected on 16 February 1988 to replace former ACT Senator Susan RyanSusan RyanSusan Maree Ryan AO is an Australian educator who served as a Senator for the Australian Capital Territory 1975–87...
, who had resigned.
This provision would still be used to fill a casual vacancy in the representation of any external territory, in the event that such a territory ever gains separate Senate representation.
House of Representatives
Casual vacancies in the House of RepresentativesAustralian House of Representatives
The House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
are filled by by-election
By-election
A by-election is an election held to fill a political office that has become vacant between regularly scheduled elections....
, at which only the voters in the relevant electorate vote.
There is no constitutional requirement for a by-election to be held. When a general election is expected within a relatively short time, it has often been the practice not to hold a by-election. This has been justified on the grounds that: (a) the electors of the seat in question should not be burdened with voting twice within a short period of time, when their views are hardly likely to change significantly in that time; and (b) the cost of holding a by-election is considerable, and it is ultimately the taxpayers who bear this.
If the Speaker
Speaker of the Australian House of Representatives
The Speaker of the House of Representatives is the presiding officer of the House of Representatives, the lower house of the Parliament of Australia. The presiding officer in the upper house is the President of the Senate....
considers it appropriate to hold a by-election, he or she consults with the Australian Electoral Commission
Australian Electoral Commission
The Australian Electoral Commission, or the AEC, is the federal government agency in charge of organising and supervising federal elections and referendums. State and local government elections are overseen by the Electoral Commission in each state and territory.The Australian Electoral Commission...
as to the suitability of various dates, invites comments from the various party leaders about the proposed dates, makes the final choice, and issues the writ.