Casual vacancy (Australian Parliament)

Casual vacancy (Australian Parliament)

::"This page is about casual vacancies in the Australian Parliament. "::"For other instances of the term "casual vacancy", see Casual vacancy (disambiguation)."

In the Parliament of Australia, a casual vacancy is caused when a member of either house (the Senate or the House of Representatives):
* dies
* resigns mid-term [The term "resign" is not to be confused with "retire". A resignation is a voluntary decision by a parliamentarian to end their term early, at a time of their own choosing. A retirement is an involuntary act whereby the sitting member chooses to see out their current term but not to contest the next general election, whenever it is held. The choice of the date of that election is not within the control of the member, but of the government.]
* is expelled from Parliament and their seat is declared vacant [There has only ever been one such case, that of Hugh Mahon, who was expelled from the House of Representatives in 1920. Under Section 8 of the Parliamentary Privileges Act, 1987 [] neither house any longer has the power to expel a member from membership of the house. However, it is not inconceivable that this law could not ever change.] , or
* has their election successfully challenged in 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 [The above provisions are all found in sections 44 and 45 of the Constitution]
** have been convicted of bribery, undue influence or interference with political liberty, or has been found by the Court of Disputed Returns to have committed or attempted to commit bribery or undue influence when a candidate, disqualification being for two years from the date of the conviction or finding [Section 386 of the Commonwealth Electoral Act 1918] , or
**are of unsound mind [Section 93 of the Commonwealth Electoral Act 1918] .

Casual vacancies are handled in different manners depending on the house concerned.


Casual Senate vacancies in the representation of the States

Section 15 of the Australian Constitution requires the parliament of the state that the senator represented to choose a replacement. In the event that the state parliament is not in session, the Governor of the state (acting on the advice of the relevant Premier) may choose the replacement.

Prior to 29 July 1977, it was an established convention, but not a constitutional requirement, that the state parliament choose a replacement from the same political party 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 (Australian Labor Party, New South Wales) resigned from the Senate to take up an appointment as a judge of the High Court of Australia. On 27 February, the NSW Liberal Premier Tom Lewis appointed Cleaver Bunton, a former long-serving Mayor of Albury, who was not affiliated with any political party. Bunton sat as an independent senator.

On 30 June 1975, the Queensland Labor Senator Bertie Milliner died suddenly. The Labor Party gave only one replacement name to the Country Party Queensland Premier Joh Bjelke-Petersen - that of Mal Colston. However, on 3 September, at Bjelke-Petersen's instigation, the Parliament of Queensland appointed Albert Field 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, 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, as although he had resigned from the Department of Education the day before he was appointed, the Education Act required three weeks notice of resignation (something that had been ignored many times in the past) and was therefore technically still in Crown service. The Labor Party immediately challenged Field's appointment in the High Court, 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. [ [ "The Field Affair"] ]

On 21 May 1977, a referendum 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. 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, who at the time of his election represented the Liberal Movement but had later changed to the Liberal Party of Australia, resigned and was replaced by Janine Haines. She represented the Australian Democrats 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 Territory (ACT) or the Northern Territory (NT) becomes vacant, the replacement senator is chosen by the ACT Legislative Assembly or NT Legislative Assembly, 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 or the Administrator of the NT, as the case may be [ [ Commonwealth Electoral Act, s.44] ] . This process was used for the first time on 18 February 2003, when Gary Humphries was chosen by the ACT Legislative Assembly to replace Margaret Reid, who had resigned from the Senate on 14 February [ [ Senate Hansard, 3 March 2003, p. 8815] ] .

Prior to the ACT gaining self-government in 1989 [ [ House of Representatives Practice, 5th edition - Senate Elections] ] , 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 Reid was elected on 5 May 1981 to replace the deceased ACT Senator John Knight [ [ Senate Hansard, 5 May 1981] ]
*when Bob McMullan was elected on 16 February 1988 to replace former ACT Senator Susan Ryan, who had resigned. [ [ Rules for Joint Sittings: footnote, p.3] , [] ]

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 Representatives are filled by by-election, 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 considers it appropriate to hold a by-election, he or she consults with 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. [ [ House of Representatives Practice, 5th edition - By-elections] ]

ee also

*List of Australian federal by-elections


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