The first question to be determined is whether the death of Mr. Barnes⁽¹⁾ has brought about a situation to which section 15 of the Constitution applies.

That section provides (inter alia) ‘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 shall … choose a person to hold the place until the expiration of the term or until the election of a successor as hereinafter provided whichever first happens.

For the section to operate it is necessary:

1. that the place of a senator should become vacant and
2. that such vacancy should occur before the expiration of his term of service.

Section 13 contains provisions for preserving the continuity of complete State representation in the Senate by having new senators ready to take the place of retiring senators immediately their terms expire (See Vardon v. O’Loghlin, 5 C.L.R. at 215). It provides (inter alia) ‘The election to fill vacant places shall be made within one year before the places are to become vacant’.

Mr. Barnes was elected at an election held last October to fill a vacant place which is to become vacant on 1st July 1938.

In these circumstances it is arguable that the opening words of section 15 are not satisfied by the death of Mr. Barnes before the place which he was elected to fill became vacant.

Before his death it may be said no place of a senator became vacant. He was himself elected to fill a place which was to become vacant but which had not become vacant at the date of his death.

In support of this view section 21 may be referred to. That section provides: ‘Whenever a vacancy happens in the Senate, the President … shall notify the same to the Governor of the State in the representation of which the vacancy has happened’. This section was not brought into operation by Mr. Barnes’ death, because by his death no vacancy happened in the Senate. The Victorian representation in the Senate was full at the date of his election and at the date of his death. There were places which were to become vacant at the expiration of the term of service of the three senators whose terms expire on 30th June next. No vacancy has yet happened which would justify the President notifying the same to the Governor of Victoria. Three places will become vacant on 1st July next, and there will be two senators available to fill those places. In the absence of a third person elected to fill vacant places pursuant to section 13 an occasion will arise in July for the President to notify the Governor of Victoria of the vacancy which will then have happened. But it may be contended those circumstances will not be such as to bring section 15 into operation. The first requirement of that section will be satisfied in that the place of a Senator will become vacant. The vacancy, it may be contended, will then be one arising by the expiration of the terms of service of one of the retiring senators, and the absence of a Senator to fill it. In such circumstances it may be said that the place has become vacant not before the expiration of Mr. Barnes’ term of service but upon the expiration of the retiring senator’s term of service and consequently section 15 would not apply.

The only direct authority on the matter is Vardon v. O’Loghlin 5 C.L.R. 201. That case is clearly distinguishable from the circumstances in the case before us. The election under section 13 had in that case been declared absolutely void as to one of the persons elected, and the High Court dealt with the matter as if the person in question ‘had not been originally returned as elected’. (See Griffith C.J. at p. 209). In this case the election ‘to fill vacant places’ was in all respects a valid election and resulted in the return of three persons to fill the three vacant places which will become vacant in July. Vardon v. O’Loghlin cannot therefore be regarded as conclusive of this matter.

In the judgment of Griffith C.J. there are expressions which may be used to support the view stated above. At p. 211 he says, speaking of section 15:

On its face this section is primarily at any rate intended to deal with things occurring in the ordinary course of human events and there is, prima facie nothing to suggest that it was intended to apply to such abnormal events as failure to elect a senator or senators. Its language is all consistent with this view. The condition on which it comes into operation is that “the place of a senator becomes vacant before the expiration of his term of service.” This assumes a previous election and the existence of a senator who has a term of service. Those words obviously relate to section 13, which prescribes the term of service of senators chosen by the people … But if there is no senator who has a term of service the section literally read does not come into operation at all.

While the argument stated above may at first sight appear attractive, we think a closer examination of the relevant section indicates that this is a case to which section 15 applies.

Section 7 provides that the Senate shall be composed of Senators for each State directly chosen by the people of the State voting until the Parliament otherwise provides as one electorate … The senators shall be chosen for a term of six years and the names of the senators chosen for each State shall be certified by the Governor to the Governor-General. We assume that Mr. Barnes’ name was so certified. By choice of the people he and his two colleagues were elected to fill the places which are to become vacant on the 1st July 1938 and for the purposes of section 13 the term of service of each of those senators ‘shall be taken to begin on the 1st day of July following the day of his election’.

At the moment, in our opinion, there is no vacancy. A vacancy will happen on 1st July next, and it will be the duty of the President to ‘notify the same to the Governor of the State in the representation of which the vacancy has happened’ (section 21).

The place which then becomes vacant is not the place of one of the Senators who retire on the 30th June. Those places have been filled by election pursuant to the provisions of the Constitution (section 13), and one of them is the place which Mr. Barnes was elected to fill. On the 1st July, when the vacancy first arises, it is not the place of the retiring senator which becomes vacant, for on that day he is not and never has been entitled to a place. The person who was entitled to the place of a Senator on that date by choice of the people was Mr. Barnes. There is a vacancy on that day in his place, and that place has become vacant before the expiration of his term of service.

The matter can be approached this way. On 1st July 1938 the place of a senator becomes vacant. For section 15 to apply it is necessary that such vacancy should occur before the expiration of his term of office. It is therefore important to determine whose place becomes vacant. It is not the place of one of the retiring senators, because they all cease to have places on 30th June. Mr. Barnes was elected to fill the vacancy which would otherwise occur on 1st July. Therefore on that date it is his place which becomes vacant, and as such vacancy has happened before the expiration of his term of service, the requirements of section 15 are satisfied.

We think there is nothing in this line of reasoning which is inconsistent with the statement cited above from the judgment of Griffith C.J. in Vardon v. O’Loghlin. There has in this case been a previous election, the result of which has been that Mr. Barnes has been chosen by the people as a Senator to fill the place which in the absence of election would be vacant on 1st July 1938, and he had a term of service which was taken to begin on 1st July 1938.

In support of this view the statement of Isaacs J. at p. 215 may be relied upon. He says:

The only title to a place and to a term of service is by direct election by the people. If such a title has been once lawfully created for the constitutional term then if the senator elected runs his course of service regularly, section 13 makes normal provision for the period of election of his successor; if, however, his term of service ends abruptly as by death, resignation or disqualification section 15 applies. In that event the State Parliament … does not elect a successor, there is created no new place, and no new term; there is merely the nomination of a temporary occupant of the place already granted for the constitutional term by the people to the late senator.

The case is the same as would arise if one of the persons elected in October last after election became subject to one of the disabilities under section 44, which would render him incapable of sitting on 1st July. His place would thereupon become vacant under sec. 45 before the expiration of his term of service, and section 15 would in our opinion be applicable. In such circumstances where the elected senator is still living, there is no difficulty in regarding the place which becomes vacant as his place, and we see no reason why the same reasoning should not apply in a case where the elected person is unable to sit by reason of his death before the commencement of his term of service.

For these reasons we think that a casual vacancy will arise on 1st July, that it will be a vacancy to which section 15 applies, and that the procedure prescribed by that section should be followed to fill the vacancy.

As the matter cannot be regarded as entirely free from doubt, we have given consideration to the question as to whether an authoritative determination could be obtained before 1st July. There being in our opinion no vacancy now, we do not think there is any safe method by which such a decision could be obtained at present. We think the most satisfactory course would be to act on our view of the section, leaving it to any person who may so desire to challenge any appointment made under section 15.

In these circumstances it is unnecessary to answer the other questions raised in the case.

[Vol. 31, p. 155]

(1) John Barnes (1868–1938). Senator for Victoria (Australian Labor Party) 1913–1920; 1923–1935. Senator-elect at death on 31 January 1938.

(2) Sir John Armstrong Spicer. Born 5 March 1899, Prahran, Victoria; died 3 January 1978, Armadale, Victoria. Admitted Victorian Bar 1922. Senator for Victoria (United Australia Party) 1940–1944; (Liberal Party of Australia) 1950–1956. Chair, Senate Standing Committee on Regulations and Ordinances 1940–1943. Appointed KC 1948. Attorney-General 1949–1956. Chief Judge, Commonwealth Industrial Court 1956–1976. Appointed KBE 1963. Commissioner, Royal Commission on loss of HMAS Voyager 1964.