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Party appointment to fill casual vacancies where
Countback has not yet replaced that

Section 15 of the Australian Constitution provides for the filling of Senate casual vacancies, which can occur between periodic elections if a senator’s seat becomes vacant then. In its original 1901 form, which lasted until 1977, Section 15 provided that such vacancies would be filled by the State Parliament or Governor-in-Council until the next periodic election of senators, when an election for that seat would be conducted along with the elections for the other Senate seats being filled then.


In that 1901 era, when countback was not known, it was considered quite impractical to hold a by-election poll for an entire state just to elect one senator, and still would be today, so the framers of the Constitution, who had provided in Section 7 that senators shall ‘be directly chosen by the people’, did not incorporate that principle in Section 15. By-elections in individual Lower House electorates were practical, and were provided for by Section 33.


Appointment Convention 1903-75: The polite convention soon developed that the State Parliament, or Governor-in-Council if the Parliament was not sitting, would fill the casual vacancy by appointing a candidate of the same party as the vacating senator. There was generally little political advantage to be gained by disregarding the convention, as the winner-take-all electoral systems used to elect senators before the system was changed to proportional representation in 1948 normally produced very large majorities for the dominant grouping, and a few replacement senators would not change the overall balance of the parties. For instance, from 1919 to 1922 the Senate consisted of 35 Nationalist Party senators and only one Australian Labor Party senator, and from 1946 to 1949 it had 33 ALP senators and only three Coalition senators. The convention began in 1903 after Senator Hon. Sir Frederick Sargood died, when Victoria replaced him with another Free Trade party member. It first faltered in 1907 when an ALP Government in South Australia had a purported appointment later voided by the High Court, but it continued to operate, by and large, until its irretrievable 1975 breakdown.


When the Senate electoral system was changed to proportional representation in 1948, the method of replacing a senator that had died, resigned, or whose seat had become vacant for failure to attend Senate meetings without its leave, or for a disqualification, became much more significant, but no Constitutional changes were proposed to remedy that then, it being assumed that the long-standing convention would still suffice.


That convention continued to be observed, but the Whitlam ALP Government antagonized the Coalition when it engaged in an attempt in 1974 to create a Senate casual vacancy for party political advantage that was dubbed the Gair Affair, although the Coalition’s adroit response stymied that manoeuvre. In February 1975, the NSW Liberal Premier retaliated in kind, by departing from the convention of maintaining party continuity when his advice led to an Independent, Bunton Cleaver, being appointed to fill the seat vacated by ALP Senator Lionel Murphy. In September 1975, Queensland’s National Party Premier also ignored the convention as his advice led to another Independent, Albert Field, being appointed to fill the seat vacated when ALP Senator Bertie Milliner died. The decrease in the number of ALP senators let the Coalition precipitate the impasse that led to the Whitlam ALP Government’s dismissal, and a Federal election.


Opportunity for Countback Missed: The Fraser Coalition Government that resulted from that election initiated the Constitution Alteration (Senate Casual Vacancies) 1977, which was a Bill to alter Section 15 of the Constitution to require that persons appointed to fill Senate casual vacancies must be a member of the same political party as the vacating senator. The Fraser Government forcibly rushed that alteration Bill through the Senate over the objections of seven of its own senators, which included a Liberal senator’s call for the system already in use in Tasmania, known as countback, to be used instead, as that method also did not require a by-election poll for a whole State, but it did ensure that replacement members are directly elected by the voters. The referendum that was required, before the Bill could alter the Constitution, was passed by a majority of voters in all States and Territories.

Weaknesses in Section 15 of the Constitution: The wording of the new version of Section 15, which is by far the longest section in the Constitution now, removed the provision for the vacated seat to be subject to a public election at the next election of senators, so senators could, and have since, vacated their seats only a week after being sworn in for a six-year term, and thus allowed their unelected successor to sit in the Senate for almost all of that full six-year term. At least three other serious weaknesses in Section 15 have emerged that would not have occurred if the Tasmania’s long-established and proven countback system had been adopted instead. Further weaknesses could appear if Julian Assange were to make a bid for a Senate seat in 2013, and he were to succeed.


In practice, as a 70-minute disputatious 1996 joint sitting of South Australia’s Parliament showed, the replacement senator is selected by the State Parliament from a ‘list’, consisting of a single name, provided by the Party Secretary of the party, registered with the Australian Electoral Commission, to which the vacating senator belonged. It is thus the registered party that makes the real decision. There is normally only one candidate, and voters have no role at all in the process. However, when the then Premier, Ray Groom, insisted in 1994 that Tasmania’s Parliament should choose between at least two candidates to replace Senator Brian Archer, from northern Tasmania, the result was that the vote was 46 for Hobart-based barrister Eric Abetz, the Liberal Party’s State President, and 7 for Michael Walsh, a young lawyer from north-west Tasmania, but proceedings were rather acrimonious.

Appointment used for certain State vacancies: The first house of a Parliament in Australia to use the appointment method for filling casual vacancies rather than the far more democratic countback system that has applied for Tasmania's House of Assembly since 1918, was the Legislative Council of South Australia, where such a method was instituted by Section 7 of SA's Constitution and Electoral Acts Amendment Act, 1973. It differed from all subsequent appointment methods used in Australia, including that more recently adopted in South Australia, in that it did not require that the replacement MLC should be of the same political party as the vacating MLC, as the demise in 1975 of the convention used federally had not occurred at that stage. The first filling of a casual vacancy in Victoria’s Legislative Council since its members became elected by proportional representation was an indirect election by a 3-minute 2009 joint sitting, with the sole Independent, Craig Ingram MLA, ensuring his dissent from the process was recorded.

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