Monday, October 27, 2014

What Would Happen If Jacqui Lambie Resigned From The Senate?

This piece is brought to you by the Department of Absurd Hypotheticals, but there are a couple of reasons for it.

Firstly, as the Palmer United Party Senator for Tasmania now seems to be embarrassing her country, her state and (to the limited extent possible) herself and her party on a more or less weekly basis, quite a few voters wish she would quit.  Lambie has recently called for the resignation of Defence Minister David Johnston, and a natural response for many was to call for Lambie to get out of politics instead.  

It's no more at this stage than wishful thinking.  Lambie comes from a difficult financial background and a likely six years as a Senator will set her up nicely for the rest of her life.  There are also some issues she seems to care about (for better or worse, varying by case) and she probably thinks she can make a difference to them in her role.  So I definitely don't think she's going anywhere - though whether she stays under the PUP umbrella remains to be seen. 

However, those who are thinking of calling for Lambie to quit the office to which she is so unsuited may want to know: if she did resign from the Senate, what would happen?


Secondly, I got involved in some discussion on this very point on a comments thread on The Examiner, where a regular commenter there, Sebastian_Polinski, has been attempting to correct my initial one-line response, thus far having some sort of technical point but overstating it and missing plenty of relevant details himself.  My most recent reply, submitted last Saturday, wasn't that long but for whatever reason never appeared, though a comment submitted afterwards did.   So, I thought I'd clear the matter up here in full detail.  Along the way I hope the comments I provide will interest those wondering about Senate casual vacancies and be a useful summary for the future.  

Casual Vacancies before 1977

Until 1977, if a Senator resigned or died in office, a joint sitting of their state's Houses of Parliament would select a replacement to serve until the next election. (Or if Parliament was not sitting the state Governor would do so with advice from the state government.) There was no restriction on the party of the replacement.  

Up until 1932 it had been reasonably common for the newly appointed Senator to be from a different party to the party of the Senator they replaced (this had effectively happened nine times out of 28 such cases).  After a long gap and eight consecutive same-party replacements there was one more different-party replacement in 1946.  Following this there were 25 consecutive same-party replacements leading up to 1975.  A convention had developed that the replacement was of the same party as the departing Senator (though in at least one case a state Premier requested their opposing party to provide a shortlist of names rather than one single name).

However, this convention started bending during the 1975 constitutional crisis.  The crisis leading to the sacking of the late Gough Whitlam as Prime Minister by Governor-General Sir John Kerr arose because the Senate was blocking supply (or, technically, deferring it and threatening to continue to do so).  

The Senate's ability to block Supply arose as follows.  After the 1974 Senate election, Labor had 29 Senate seats, the Coalition also 29, and the other two were held by Michael Townley (Ind, Tas) and Steele Hall (Liberal Movement, SA).  Townley joined the Liberal Party in 1975 giving the Coalition 30 Senators, but Hall opposed the blocking of supply.  

During 1975 two Labor Senate seats became vacant, one because of a resignation and the other because an incumbent Senator died.  In the first case the NSW Liberal government contentiously appointed Cleaver Bunton (Ind).  This was to have no impact on supply because it turned out that Bunton did not wish to block it.  In the second case, the Queensland National government of Joh Bjelke-Petersen was asked to approve Labor's sole proposed choice of candidate, Mal Colston.  They instead installed an obscure ALP member critical of Whitlam, Albert Field.

Field was expelled from the ALP and his eligibility to sit in the Senate challenged because he had allegedly still technically been a public servant (and hence ineligible to be appointed).  However even with Field absent on leave during the challenge, the Coalition had a 30-29 majority, and declined to provide a pair.  The rest is well-known history.

Casual Vacancies since 1977

In 1977 a referendum was passed to effectively strip state governments of the power to appoint members of parties other than the one the resigning or deceased Senator had been elected under, and address some of the problems that contributed to the Dismissal.  The key features of the changes are:

* Where possible the replacement Senator is of the same party as the one the resigning or deceased Senator was elected for.  (This might not be possible if, for instance, the party no longer existed or no-one wishing to nominate for it could be found.)

* If the person appointed by state Parliament to the vacancy ceases to be a member of the party before they take their place in the Senate, then the appointment is void.

* The replacement Senator serves the whole remainder of the term of the original Senator.

Since this referendum was passed there have been 80 casual Senate vacancies, caused by six deaths, one disqualification and 73 resignations.  One of the resignations involved a possibly ineligible Senator who escaped the "office of profit under the Crown" trap by resigning and being reappointed.

77 of the casual vacancies resulted in straightforward same-party replacements.  Two slightly less straightforward cases were:

* John Devereux was elected as a Labor Senator but had quit the party prior to resigning from the Senate.  His place was taken by a Labor nominee.

* Steele Hall was elected as a Liberal Movement Senator but since then some members of the Liberal Movement (including Hall) had joined the Liberal Party while what remained of it eventually merged into the Australian Democrats.  His place was taken by a Democrats nominee.

A single casual vacancy wasn't ever filled, and that was the vacancy created by the resignation of Don Grimes (ALP, Tas) in April 1987.  Labor nominated John Devereux to fill the position but this was opposed by the Robin Gray Liberal government, mainly because Devereux was seen as an anti-logging leftie. The Gray government argued somewhat facetiously that there was nothing to say they had to accept Labor's nominee, while Labor made it plain that anyone else seeking to be nominated who was a Labor member would be expelled from the party and hence ineligible to sit.

With the assistance of some notionally independent stooges in the Legislative Council the Gray government was able to get the numbers to tie the vote on Devereux's nomination, thereby blocking it.  One attempt was then made to nominate a different ALP member, but it was procedurally invalid.  The nomination remained unfilled until the federal election three months later.  During this time Labor made their position very clear: anyone other than Devereux who accepted a nomination to the position would be immediately expelled from the ALP.

While the Gray government was able to just leave the seat absent over such a short time, I suspect that had a federal election not been so close they would have backed down eventually.

Other funny things have sometimes happened with these state nominations.  Now and then state parliaments have been slow filling vacancies, as noted in Odgers.  There was also some funny LegCo behaviour in the leadup to the original appointment at a casual vacancy of, of all people, Eric Abetz.

So What Would Actually Happen If Lambie Resigned?

In all likelihood she would be replaced by a nominee of the Palmer United Party.  That does, however, come with a few remote "ifs" and "buts".

It is possible in theory that a joint sitting of state Parliament might wish to reject PUP's nomination.  Then it would be a question of whether PUP wished to negotiate with the Parliament and allow them to nominate somebody else.  It's not only hard to see Clive Palmer backing down in such a manner, but it would be a pretty gutless response for any political party.  So if Palmer took the same approach as other parties have taken before, then no-one nominated against PUP's wishes could serve, as they would just be expelled from the party (something PUP can do exceptionally easily.)

In theory there could be a Devereux-like standoff, but why would the Tasmanian parliament want to give PUP oxygen by denying them the ability to replace their own Senator in this way? About the only way that would be likely to happen is if PUP's characteristically awful candidate vetting produced someone many times less appropriate than Lambie. 

Other unusual scenarios might include the PUP not even existing by that stage (state parliament appoints who it likes), and the PUP being unable to find or define a "member" willing to contest (ditto).  But ultimately, for all the issues with Section 15, we have no precedent I can find for a Senate seat being left unfilled by the vacating party's preferred nominee for more than a few months. 

5 comments:

  1. Comment received from Tom Round:
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    > "PUP not even existing by that stage (state parliament appoints who it likes)"

    Kevin, I agree with your interpretation http://www.griffith.edu.au/criminology-law/griffith-law-review/previous-issues/volumes-5-11/volume-7-2-1998, but note that Antony Green disagrees with us both: http://tinyurl.com/o23x74z. Antony mentions that "both the NSW and South Australian Parliaments have commissioned work on the question of replacing Independents" under a rule modelled in the 1977 amendment to Constitution Section 15. Unfortunately I haven't been able to locate and read said research to see how sound the reasons are.

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    1. I should clarify that the scenario I had in mind in the last paragraph was one in which PUP had totally disbanded leaving no alternative party that could be considered some sort of continuation of it.

      Anyway, I take Antony's argument to be that the High Court would find that Section 15 implies some sort of analogous like-for-like-replacement policy for even those Senators whose replacements are not even arguably literally covered by it. I don't know for sure that it wouldn't do that so I am happy to note that as an alternative view.

      What is interesting there is Antony's suggestion "However, had there been a rift between Xenophon and his third candidate, such a replacement may not have been appropriate." In the case of PUP there are constant rifts between candidates and candidates do not necessarily resemble each other politically. So if PUP disbanded and a state parliament felt it needed to decide which of a range of ex-PUPpies was most compatible with Lambie it could find that a very difficult task. Also if the state parliament decided it was instead after the most typical available ex-PUP candidate that too could be difficult.

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  2. Sooner or later there will be a constitutional crisis as a result of the sloppy wording in the 1977 constitutional amendment. It would have happened over the Grimes vacancy, had not the 1987 election supervened. The Constitution says that the state parliament shall "choose" a replacement for a departed Senator, but then specifies whom they must choose - the nominee of a political party - thus negating the meaning of the word "choose." This contradiction has never been resolved. Sooner or later a state parliament will insist on its right actually to choose the replacement, and to reject a party nominee. Presumably the matter will go to the High Court. But the High Court cannot compel members of a state parliament to vote in a particular way. It could simply declare the party nominee duly appointed, but that would be a clear abrogation of the Constitution and I doubt the High Court can do that.

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  3. Hi Kevin,

    Any thoughts on what would happen if Lambie declares herself an independent (as is likely to occur today), and then later quits the Senate? Would PUP get to make the nomination for a replacement as they were the party Lambie was a member of when elected, or would they not have that right to do so as she would have quit after separating from the party?

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  4. Her quitting the party would have no impact at all on PUP being the party of which the replacement Senator is a member. Section 15 very clearly refers to the party of candidature of the departing member at the time of election.

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