My advice is asked on the question raised in the following minute by the Clerk of the Senate:

Senator Earle was appointed under section 15 of the Constitution in the place of Senator Ready resigned. This section provides that the person so appointed shall hold the place until the expiration of fourteen days after the beginning'of the next session of the Parliament of the State, or until the election of a successor, whichever first happens. The section further provides that at the next general election of Members of the House of Representatives, or at the next election of Senators for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the date of his election until the expiration of the term.

A general election of Members of the House of Representatives and an election of Senators for the State of Tasmania has taken place. As far as I am aware no special election of a successor to Senator Ready for the unexpired term of his office has taken place.

The question now arises: No election having been held under section 15 of the Constitution, is Mr Earle still a Senator for the unexpired term of Senator Ready's office, and can I certify to his allowance accordingly, or did his appointment terminate when a successor might have been appointed, but was not?

Senator Earle continues to hold the place vacated by Senator Ready until 30 June next, unless in the interval either of the events happen which are specified in section 15 as terminating the tenure of the place, namely:

1. the expiration of fourteen days after the beginning of the next session of the Parliament of the State; or
2. the election of a successor under paragraph two of section 15.

At the general election just held, no steps were taken to elect a successor to hold Senator Ready's place for the few remaining weeks of the term.

Though the second paragraph of section 15 can hardly have been intended to apply to a case of this kind, where the term of the 'place' was on the point of expiry, it would appear that strict compliance with the Constitution required the Governor of the State at the general election to issue a writ for the election of a person to hold the place. This, however, was a duty of a political and discretionary character, which cannot be enforced by legal process: see R. v. Governor of the State of South Australia 4 C.L.R.1497, at pp. 1510-11. The omission to elect a successor to the place does not affect Senator Earle's tenure, because he holds the place 'until the election of a successor'-not until the time when a successor should or might have been elected.

The only event which can now terminate Senator Earle's tenure of the place would be the meeting of the State Parliament and the expiration of fourteen days thereafter. Otherwise he will in my opinion continue to hold the place till 30 June.

I am therefore of opinion that the Clerk can certify to Mr Earle's allowance as a Senator.

[Vol. 15, p. 162]