MEMBER OF PARLIAMENT WHETHER ELECTION SUBSEQUENT TO VOID ELECTION ENTITLES MEMBER TO PARLIAMENTARY ALLOWANCE FROM DATE SEAT BECAME VACANT : WHETHER PARLIAMENT HAS OTHERWISE PROVIDED'
CONSTITUTION, ss. 48. 51 (xxxvi) : PARLIAMENTARY ALLOWANCES ACT 1902. s. 2 : PARLIAMENTARY ALLOWANCES ACT 1907
Senator Vardon was a candidate for election as a Senator for South Australia in an election held in 1906 to fill a place becoming vacant in 1907, and was returned as elected.
The election was disputed, and in May 1907 the Court of Disputed Returns held that Mr Vardon's election was absolutely void.(1)
In July 1907 the Parliament of South Australia chose the Honourable J. V. O'Loghlin to fill the vacancy. This choice was also disputed, and the Court of Disputed Returns, to which the matter was referred, held that Mr O'Loghlin's choice by the Parliament of South Australia was absolutely void.(2)
A writ was then issued for the election of a Senator to fill the vacant place, and the writ has been returned with a certificate that Mr Vardon was, on 15 February 1908 elected as a Senator.
The question as to the date on which payment of the allowance to Senator Vardon should commence has been referred to me for opinion.
Section 48 of the Constitution enacts that 'Until the Parliament otherwise provides, each senator . . . shall receive an allowance of ... to be reckoned from the day on which he takes his seat'.
The Parliament, by the Parliamentary Allowances Act 1902, section 2(1), made other provision as to the time from which a Senator's allowance should be reckoned, in the following cases:
- in the case of a Senator chosen at the first election after a dissolution of the Senate;
- in the case of a Senator chosen to fill a place which is to become vacant in rotation;
- in the case of a Senator chosen or appointed to fill a casual vacancy.
That Act was repealed by the Parliamentary Allowances Act 1907, which made new provision for the reckoning of the time in the three cases already mentioned.
There can be little doubt that the cases mentioned were intended to be an exhaustive enumeration of all possible cases, but they none of them cover the case of Mr Vardon, which has arisen in consequence of the decision of the High Court in Vardon v. O'Loghlin-the case, namely, of a Senator chosen to fill a place which had already become vacant in rotation.
The question is one of considerable difficulty; but on the whole I think that the 'other provision' made by the Parliament is inapplicable to this case, and that section 48 of the Constitution must be considered as being, to that extent, not superseded.
That is to say, I think that, as the law stands, Senator Vardon is only entitled to allowance from the day on which he took his seat.
[Vol. 6, p. 313]
(1) Blundell v.Vardon 4 C.L.R 1463.
(2) Vardon v.O'Loghlin 5 C.L.R 201.