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?