For the purposes of this section the term of service of a senator shall be taken to begin on the first day of [January] July following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of [January] July preceding the day of his election. § 29. "ROTATION OF SENATORS." LEGISLATION. CONSTITUTION ALTERATION (SENATE ELECTIONS) 1906. The above reprint of the Constitution, section 13, shows how the section stood as originally passed into law by the Imperial Parliament and as it now stands amended by the Constitution Alteration (Senate Elections) 1906. The words in brackets have been repealed and the amendments are shown in broad black letters. The amending Act inter alia reads as follows: (a) The terms of service of the senators whose places would. but for this Act, become vacant at the expiration of the year One thousand nine hundred and nine are extended until the thirtieth day of June One thousand nine hundred and ten. (b) The terms of service of the senators whose places would, but for this Act, become vacant at the expiration of the year One thousand nine hundred and twelve are extended until the thirtieth day of June One thousand nine hundred and thirteen. (c) This Act shall not be taken to alter the time of beginning of the term of service of any senator elected in the year One thousand nine hundred and six. This was the first proposed alteration of the Constitution of the Commonwealth submitted to the electors for ratification or rejection. The votes recorded in the affirmative and the negative are given on page 20 of this work. Further provision for rotation. 14. Whenever the number of senators for a State is increased or diminished, the Parliament of the Commonwealth may make such provision for the vacating of the places of senators for the State as it deems necessary to maintain regularity in the rotation. Casual vacancies. 15. If the place of a senator becomes vacant 30 before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen shall, sitting and voting together, 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. But if the Houses of Parliament of the State are not in session at the time when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to 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. 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. The name of any senator so chosen or appointed shall be certified by the Governor of the State to the Governor-General. § 30. "IF THE PLACE OF A SENATOR BECOMES VACANT.” LEGISLATION. COMMONWEALTH ELECTORAL ACT 1902-1911, SECTION 192. SENATE ELECTIONS ACT 1903. A casual vacancy means a vacancy in the place of a Senator occurring before the expiration of his term, as by death or resignation. A periodical vacancy is one occurring at the expiration of the term of a senator. When at an election of senators for a State to fill periodical vacancies one or more senators are to be elected to fill casual vacancies the provisions of the Act apply. The election of Senators to fill the periodical vacancies and of senators to fill the casual vacancies shall be conducted as one election of senators. The number of candidates required to be elected at the election shall be the whole number required to fill the periodical and the casual vacancies. Those of the elected candidates, to the number of the periodical vacancies, who receive the greatest number of votes shall be elected to fill the periodical vacancies. In the event of an equality of votes between two or more elected candidates, not all of whom can be elected to fill the periodical vacancies, the Commonwealth electoral officer for the State shall give a casting vote for the purpose of deciding which of them shall be elected to fill the periodical vacancies. The elected candidates who are not elected to fill the periodical vacancies shall be elected to fill the casual vacancies. The Commonwealth electoral officer shall-(a) in declaring the result of the election, declare the names of the candidates elected to fill periodical vacancies, and the names of the candidates elected to fill casual vacancies; (b) in certifying by endorsement on the original writ the names of the candidates elected, certify which of them are elected to fill periodical vacancies, and which of them are elected to fill casual vacancies. Casual Vacancies. At the end of the year 1906 the places of three of the senators for South Australia became vacant by effiuxion of time under the provisions of section 13 of the Constitution. An election was held in due course, and three persons (Sir J. SYMON, WM. RUSSELL and JOSEPH VARDON were returned as duly elected. Upon a petition, presented to the Court of Disputed Returns under the provisions of the Commonwealth Electoral Act 1902 it was declared that the election was void so far as regarded one of them (Joseph Vardon). Thereupon both Houses of the Parliament of South Australia, assuming to act under the provisions of the Constitution, section 15, sat together and chose a person (Mr. J. V. O.LOUGHLIN) to hold the place of the senator whose place had become vacant; this choice was certified by the Governor, and the person so chosen sat and voted as a senator. An application was made to the High Court on behalf of Mr. Vardon for a prerogative writ of mandamus addressed to the Governor of the State of South Australia, commanding him to cause a writ to be issued for the election of a senator to fill a vacancy. The applicant (Mr. Vardon) contended that the case was not within the Constitution, section 15, and that the attempted choice of the Houses of Parliament was a mere nullity. He maintained that when the election of a senator elected at a popular election becomes ineffective for any reason, a new popular election must be held, for which purpose the Governor of the State is bound to cause a writ to be issued, and that the performance of this duty may be enforced by mandamus. On behalf of the Governor of South Australia it was contended that section 15 applies to all cases in which there has been an election de facto, and that in such a case every person returned has a term of service, which may expire with the declaration of the Court of Disputed Returns that he was not duly elected; that, since challengeable elections become unchallengeable at the expiration of the time allowed for petitioning, an irregular election is voidable and not void, and that the words the place of a senator " in section 15 consequently mean the place de facto occupied, whether de jure, or not; that, whatever may be the proper mode of choosing a senator under the circumstances, a mandamus will not lie against the Governor of a State. The High Court (per Mr. Justice BARTON), said:" That with regard to the election of senators, although the Governor is the person designated to bring into operation certain provisions of the Constitution which ought to be brought into operation, and which cannot be brought into operation without his action, he cannot be regarded quoad hoc as an officer of the Commonwealth. The States are not subordinate to the Commonwealth, and the Commonwelath judiciary cannot command the constitutional head of a State to do in that capacity an act which is primarily a State function. If, indeed, this Court could in any case undertake to command the necessary steps to be taken to secure the full representation of a State in the Senate, it is not easy to see why its authority should be limited to the case where the mode of choice alleged to be appropriate is a popular election. There are, in fact, three modes in which the place of a senator may be filled-popular election, choice by both Houses of Parliament, and appointment by the Governor with the advice of the Executive Council. In a case where the choice ought to be made by both Houses of Parliament it is quite clear that this Court could not command those Houses to meet and choose a senator, and it would be immaterial whether a writ had or had not been issued by the Governor for holding a popular election. It is equally clear that the Governor could not be commanded to do an act which he can only do with the advice of the Executive Council. As, therefore, this Court would have no authority to correct by mandamus a mistake of one kind as to the mode of choice, it seems clear that it was not intended to have authority to interfere by mandamus in such matters at all. 66 Apart from these considerations we think that a mandamus will not lie to the Governor of a State to compel him to do an act in his capacity of Governor. There is, of course, no British precedent for such a writ. Reference was made in argument to the cases in which it has been held that an action will lie against a Colonial Governor for wrongful acts done by him. But it by no means follows that, because a Governor is liable to an action for a wrongful act done by him to the prejudice of an individual, he is liable to be commanded by mandamus to repair an omission to do a lawful act. 66 It is settled law that a mandamus will not lie against an officer of the Crown to compel him to do an act which he ought to do as agent for the Crown, unless he also owes a separate duty to the individual seeking the remedy. We do not think that the Governor of a State in the issuing of a writ for the election of senators is acting as agent for the Sovereign in this sense, since the duty imposed by the Constitution is imposed by Statute law and not by delegation from the Sovereign himself. But, as already pointed out, it is a duty cast upon him as head of the State. And the same reasons which prevent a Court of law from ordering the Sovereign to perform a constitutional duty are applicable to a case where it is alleged that the constitutional head of a State has by his omission failed in the performance of a duty imposed on him as such head of the State. In our opinion the Governor of a State is not, so far as regards the matter now in question, an officer of the Commonwealth within the meaning of the section. Nor do we think that the Judiciary Act has enlarged the jurisdiction of the Court in this respect. |