Peter O’Brien: Nick Xenophon and the ‘Casual’ Senate Vacancy

In February 1975, Prime Minister Gough Whitlam appointed Senator Lionel Murphy to the High Court of Australia despite him never having held judicial office.   At that time, there was a convention in operation that a ‘casual’ Senate vacancy should be filled by a member of the same political party. On 27 February 1975, the Premier of New South Wales, Tom Lewis, controversially broke with this convention and appointed Cleaver Bunton, a person with no political affiliations, to replace Murphy in the Senate.

As a result of this and another incident wherein Queensland Premier Joh Bjelke Peterson appointed Albert Field, nominally an ALP member but not active politically and not the ALP’s nomination, to replace a deceased Senator, the Constitution was amended in 1977 to give force to the convention that a casual Senate vacancy should be filled by a member of the same political party.  The new section 15 states:

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, sitting and voting together, or, if there is only one House of that Parliament, that House, shall choose a person to hold the place until the expiration of the term. But if the Parliament of the State is not in session when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold that place until the expiration of fourteen days from the beginning of the next session of the Parliament of the State or the expiration of the term, whichever first happens.

Where a vacancy has at any time occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly recognized by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate, a person chosen or appointed under this section in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, shall, unless there is no member of that party available to be chosen or appointed, be a member of that party.


(a) in accordance with the last preceding paragraph, a member of a particular political party is chosen or appointed to hold the place of a senator whose place had become vacant; and

(b) before taking his seat he ceases to be a member of that party (otherwise than by reason of the party having ceased to exist),

he shall be deemed not to have been so chosen or appointed and the vacancy shall be again notified in accordance with section twenty-one of this Constitution.


Whilst I concede that Bjelke Peterson’s action, although technically in line with the convention, was politically tricky, I contend that Tom Lewis was perfectly justified in ignoring the convention.  The appointment of Murphy to the High Court did not create a ‘casual’ vacancy.  It was a cynical political ploy to stack the High Court with someone who was, at that time, a partisan political player, one, moreover, who had no judicial experience whatsoever.  In fact Lewis could be said to have acted with Solomonic judgement.  As Wikipedia notes:

Bunton surprised many observers by acting independently rather than as a Liberal appointee, and resisted urgings from the Malcolm Fraser-led Opposition to block the supply bills of Prime Minister Gough Whitlam’s government, instead supporting Labor on the supply bills during the 1975 Australian constitutional crisis.

What prompted this trip down memory lane is the announced departure from the Senate of Nick Xenophon.  This is not a casual vacancy.  Again, it is a political ploy – in this case to advance Xenophon’s career.  His cynicism should not be rewarded by having his nomination for his own replacement simply rubber stamped.  And that is true in all similar cases.

How could that be avoided?

I believe that a ‘casual’ vacancy should be defined to mean one occasioned only by the death or ill health of the sitting Senator.  Moving to another legislature or the High Court, malfeasance, bankruptcy, administrative bungling such as having dual citizenship, or even wanting to ‘spend more time with my family’ would not count.   Some will argue that this would infringe the rights of the voters who put the Senator there based on his political affiliations and also that it may upset the balance of power in the middle of a Parliamentary term.  Maybe so, but we don’t entertain such niceties in the case of the House of Representatives.  In that case there is a by-election.  And, of course, we allow members of both Houses to remain in situ even after they have resigned from their party or even joined an opposition party.

I would suggest that non-casual Senate vacancies be filled by the candidate who just missed out last time.

You will have noticed that the Section 15 of the Constitution does not use the term ‘casual vacancy’.  So how could my proposal be given effect?  Section 15 talks about the place of a Senator ‘becoming vacant’.  That leaves room for judicial interpretation.  Death or ill health could cause a place to ‘become vacant’ as opposed to political or personal expediency motivating a Senator ‘to vacate’ his seat.  In the first instance the Senator has no control over relinquishing his seat.  In the second it is self-indulgence or opportunism.  That distinction could become the new convention, at least until tested in the High Court.

In the case of Xenophon, that would require the Premier of South Australia to seek advice from his Solicitor General as to the reasonableness of my interpretation of the words ‘becoming vacant’ and then to put to the SA Parliament the name of the Senate candidate who polled 7th in the 2016 election.  No doubt Xenophon would mount a High Court challenge but who knows how the High Court might rule?  Of course, it’s pretty much a fantasy on my part to expect Jay Weatherill to act thus unless, of course, the next cab off the rank was an ALP member.  In this case, I could live with that, though.

And I do accept that one impediment to them accepting my proposition is that, in 1977, the term ‘becoming vacant’ did, in fact, encompass the idea of accommodating personal and political imperatives.  So a High Court challenge may succeed but instigating such might be the first step in the process of correcting an ill-advised anomaly in the Constitution, one which most voters might easily be persuaded is just another perk for the trough-snouters that now infest our Parliament.

If the High Court upheld the current interpretation of ‘casual’ vacancy, then a referendum to refine Section 15 of the Constitution would be the only, but I contend worthwhile, course.  This former ‘convention’ now enshrined in the Constitution is nothing more than a cosy self-serving arrangement within the clubby milieu of the political class.  It does not contribute to good governance, rather it allows incumbents to treat public office as a mere convenience.  And it is an object lesson in the need to leave the Constitution alone unless absolutely necessary.

The problem, of course, would be finding a disinterested politician to sponsor such a proposition.  But it might appeal to an upstanding ‘keep the bastards honest’ type of pollie such as, oh I don’t know, Nick Xenophon?

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18 Responses to Peter O’Brien: Nick Xenophon and the ‘Casual’ Senate Vacancy

  1. pbw

    Is there any other mention of “political party” in the constitution?

  2. jupes

    I was going to write something about Bob Carr’s article in The Weekend Australian earlier but never got around to it, so here seems as good a place as any. Well it is about senate rules after all.

    Carr’s stupid article was basically using the Las Vegas tragedy to have a go at – you guessed it – Trump and the Republicans.

    In it he railed that because each US state has two senators, and the majority of Americans live in the big states on the coasts, then it results in 70% of the Senators representing 30% of the people. This is bad of course because those small middle states have mainly elected Rebulican senators.

    Carr of course neglected to mention two things:

    1. The Australian system is just as bad if not worse, e.g. a NSW senator requires ten times the amount of votes as a Tasmanian senator.

    2. Carr himself was never elected to the Senate. He was appointed by TLS in one her more incompetent actions as Prime Minister.

    What right has the self-serving bozo to lecture the US about their senate election system?

  3. herodotus

    It’s a “causal” vacancy.

  4. Ray

    Read Section 15 properly. The only mention of a casual vacancy is in the heading, not the wording of the section itself. As a result, a casual vacancy becomes defined as where “… the place of a senator becomes vacant before the expiration of his term of service …”. The cause of the vacancy is not relevant and so all vacancies before the expiration of a term of service becomes a casual vacancy.

    As a result, there is no room for interpretation here. If a casual vacancy arises for whatever reason, it must be filled, where possible by a member of the same party.

  5. struth

    With the old Constitution, everything would have been fine as no one gets “appointed” by any one except the governor, and then only temporarily, if parliament isn’t sitting, until parliament of that state sits and votes in a new Senator.

    If they had been working within the constitution, neither Tom or Joe’s (or Dick or Harry’s) appointments could last longer than 14 days into a sitting parliament.
    There was no need to amend, in my view.
    There was a need to read the effing original and abide by it.

  6. struth

    a person chosen or appointed under this section

    Therefore, only under the temporary appointment.
    As soon as that state’s parliament sits again, they must vote in a new Senator, (and that could be from any party, and this amendment, badly worded, does not override the temporary appointment and need for a vote once the state’s parliament sits.
    The amendment only addresses the temporary appointment.

    “Under this section”……………….

  7. C. Paul Barreira

    Why has Z made this decision to leave for the SA parliament? Not, perhaps, because he has received legal advice suggesting that his hold on a Senate seat is dubious? You know, passports and all that. With a bit of luck the electorate in Hartley will reject his bid for a House of Assembly seat. Of course, if he succeeded, he would become little more than a shill for the (probably continuing) Labor government, rather than a much hoped-for speakership. All of which warrants no more than “so what?” in a failed state.

  8. Empire GTHO Phase III

    Is there any other mention of “political party” in the constitution

    No. Fraser’s gift to the nation was to propose and support a referendum to introduce the concept of “the party” to our constitution.

    IMO a senate seat that becomes vacant (for any reason) should remain so until the next senate election. If that election is half senate and the seat in question is only three years in, the successful candidate only gets a half term.

    The present arrangement has the majors treating the chamber as a payola nursery for apparatchiks.

  9. Tim Neilson

    As a result, there is no room for interpretation here.

    Ray, Courts are experts in finding grounds for “interpreting” legislation to give a desired result. Peter O’Brien’s suggestion that “becomes” should be restricted to passive rather than active vacancies would by no means be the most improbable interpretation ever to succeed before an Australian Court. (Think the “implied terms” in the Constitution.)
    Would you mortgage your house to bet against a Court consisting of Labor appointees agreeing to that interpretation if they could help an ALP State government foist a maaaate into a previously PHON (or LDP, or ACP, or even perhaps Coalition) seat?

  10. Mak Siccak

    I agree. The next person who just missed our should fill the vacancy; nothing to do with party politics at all.

  11. Leo G

    As a result, a casual vacancy becomes defined as where “… the place of a senator becomes vacant before the expiration of his term of service …”. The cause of the vacancy is not relevant and so all vacancies before the expiration of a term of service becomes a casual vacancy.

    Why is a Senate placeholder permitted to act as a senator when not satisfying the constitutional requirement that they be elected by the people of the State?

  12. Bruce

    Here’s a thought:

    Are not political parties, effectively, power cartels?

    And in a system that was essentially formulated before the advent of the “modern” political party, is this not a major threat to “transparency”, accountability and the maintenance of a scintilla of LIBERTY?

  13. Arnost

    Is there any other mention of “political party” in the constitution?

    And here I thought the Most Honourable Senators were meant to represent the States interests in the Parliament… That they now are officially accepted to represent only their Political Party’s interests means that the Senate is redundant.

    Just drain that swanp and get rid of it. And also the State Senates / Legislative Councils as they are equally redundant. Pity Lang failed in NSW to do just that! Imagine the $bio in savings!

  14. Jeremy

    I suggest involuntary vacation of the position should require replacement by a Reserve person nominated by the MP. (all senators should be required to nominate such a replacement)
    Voluntary vacation should require replacement by the candidate who just missed out.

  15. Fat Tony

    #2519935, posted on October 10, 2017 at 10:00 pm

    I suggest involuntary vacation of the position should require replacement by a Reserve person nominated by the MP. (all senators should be required to nominate such a replacement)
    Voluntary vacation should require replacement by the candidate who just missed out.

    Along with all accrued benefits going to the replacement (unless there’s a genuine emergency reason for vacating the position – adjudicated by a normal jury panel).

    That’d slow the bastards down.

  16. Mique

    I think that Xenophen’s display of his naked cynicism may well be the most useful aspect of this exercise. Butter wouldn’t melt in his mouth, but his cynicism has always been obvious to me. I hope he gets trashed in forthcoming elections.

  17. Baldrick

    Just replace him with another Xenophon candidate and let the voters decide at the next election.

  18. stackja

    Gair Affair
    From Wikipedia, the free encyclopedia
    The Gair Affair was an episode in Australian political life in 1974, during the government led by the Labor Prime Minister Gough Whitlam. Whitlam offered the post of Ambassador to Ireland to a non-government senator from Queensland, Vince Gair, in the hope that this would improve Labor’s chance of gaining a majority in the Senate at the forthcoming general election. Whitlam’s plan was foiled by the Premier of Queensland, Joh Bjelke-Petersen, during what came to be known as “The Night of the Long Prawns”, but the matter was overtaken by events when Whitlam decided to call a double dissolution election.
    Jenny Hocking has said of the affair: “The government’s attempts to effect an additional Senate vacancy through Gair’s resignation was constitutionally sound, strategically brilliant and an unmitigated political disaster.”

    The Senate sat through until 12:30 am on the morning of 3 April, and Gair did not finally leave for home until around 3 am. About 90 minutes earlier, at 1:40 am, Bjelke-Petersen announced to the Queensland Parliament that the Governor had, on his recommendation, issued writs for the election of five senators at 11 pm on 2 April.

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