Opinion Number. 281

Subject

SENATE ELECTIONS WHETHER CASUAL VACANCY ARISES UPON COURT OF DISPUTED RETURNS VOIDING ELECTION

Key Legislation

CONSTITUTION, ss. 13, 15 : COMMONWEALTH ELECTORAL ACTS 1902-1906, ss. 197, 205 : CONSTITUTION ALTERATION (SENATE ELECTIONS) 1906

Date
Client
The Minister for Home Affairs

The Court of Disputed Returns has declared the recent election of senators for the State of South Australia to be absolutely void in respect of the return of Mr Vardon.(1)

The Minister for Home Affairs refers the matter to me for advice as to the procedure to be followed to fill the vacancy in South Australia's Senate representation occasioned by the Court's decision.

The facts material to be stated are as follows:

On 12 December 1906, an election was held in South Australia for the election of three senators to fill the places of the senators retiring in rotation on 31 December 1906.

On 8 January 1907 the poll was declared and the writ returned, the candidates declared to be elected being Sir Josiah Symon, Mr Russell, and Mr Vardon. Mr Crosby, the highest defeated candidate, was only 34 votes below Mr Vardon.

Mr Crosby shortly afterwards died, and Mr Blundell, the next highest candidate, duly lodged a petition in the Court of Disputed Returns against the return of Mr Vardon.

On 20 February 1907 the Parliament met and the three senators elect for South Australia were sworn in and took their seats.

The Court of Disputed Returns ordered a recount of all the ballot-papers, and on the recount, having rejected certain ballot-papers that had been admitted, and admitted others that had been rejected, found that while Vardon was still in a majority of two on the admitted votes, yet a number of ballot-papers-which if admissible would have placed Crosby in a majority-were invalid through the fault of a Returning Officer in not initialling the ballot-papers.

The Court therefore declared the election absolutely void in respect of the return of Mr Vardon. The decision does not affect the return of Senators Symon and Russell; but there is a vacancy in the representation of the State of South Australia, and the question is whether it is to be filled by a new election under section 13 of the Constitution, or as a casual vacancy under section 15 of the Constitution.

Section 13 of the Constitution, prior to the recent Constitution Alteration (which was not assented to till 3 April 1907), provided that 'The election to fill vacant places shall be made in the year at the expiration of which the places are to become vacant'. The alteration makes this provision read: 'The election to fill vacant places shall be made within one year before the places are to become vacant'. In this case, as the places of the retiring senators became vacant on 31 December 1906, the difference of wording appears immaterial.

That this requirement is absolute and not directory merely, appears from the next paragraph of the section, which provides that 'For the purposes of this section the term of service of a senator shall be taken to begin on the first day of January following the day of his election', coupled with the provision of the first paragraph that 'the places of senators shall become vacant at the expiration of six years from the beginning of their term of service'.

(The alteration by Constitution Alteration (Senate Elections) 1906 of 'January' to 'July' does not apply to senators elected in 1906.)

I am led to the conclusion that, the election of Mr Vardon having been declared void after the commencement of the term of service, no election can now be held under section 13. It is not necessary to express an opinion whether, under any circumstances, an election for the return of one senator only could be held under section 13.

It then becomes necessary to inquire whether section 15 applies: in other words, whether the condition-'If the place of a senator becomes vacant before the expiration of his term of service'-has happened. Before the decision of the Court, Mr Vardon was, de jure as well as de facto, a senator. The subsequent avoidance of his election did, in my opinion, cause his place in the Senate to become vacant, within the meaning of section 15 of the Constitution.

This view of the effect of the Court's decision is borne out by the provisions of the Electoral Acts.

Section 197 empowers the Court:

  1. (iv) To declare that any person who was returned as elected was not duly elected:
  2. (v) To declare any candidate duly elected who was not returned as elected:
  3. (vi) To declare any election absolutely void.

Section 205 provides that:
Effect shall be given to any decision of the Court as follows:

  1. If any person returned is declared not to have been duly elected, he shall cease to be a Senator or Member of the House of Representatives;
  2. If any person not returned is declared to have been duly elected, he may take his seat accordingly;
  3. If any election is declared absolutely void a new election shall be held.

It appears therefore that a declaration that a senator (say) was not duly elected does not affect retrospectively his past status as a senator; it makes him 'cease to be a senator'; and unless some other candidate is declared to have been duly elected, there would be a casual vacancy. It is difficult to see the distinction in principle between a declaration that a person declared to be elected was not duly elected (without any dec-laration that someone else was duly elected) and a declaration that the election of that person was absolutely void. In either case there is a vacancy, which must be filled. The Act says nothing about filling the vacancy in the former case; the reason apparently being that an order declaring one person not to be elected is only contemplated in con-junction with an order declaring another person to be elected. Where the Court unseats one person, but does not seat another, the appropriate order is to declare the election of that one person to be absolutely void. Section 205 is thus complete. Where A. is unseated and B. is seated, A. ceases to be a senator and B. may take his seat. Where A. is unseated and no one is seated, A. ceases to be a senator, and there is a vacancy and must be a new election.

But sub-section (iii) of section 205 must be read subject to the Constitution. It can-not require a new election at the polls where the Constitution prescribes a different method of choice. In my opinion it merely means that the vacancy shall be filled; but whatever it means, I think that, under the Constitution, the vacancy which has occurred can only be filled in accordance with section 15 of the Constitution, as a cas-ual vacancy.(2)(3)

[Vol. 6, p. 80]

(1) Blundell v. Vardon4C.L.R. 1463. A

(2) This view was subsequently rejected by the High Court of Australia in Vardon v. 0