7. The Senate
The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.
But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland, if that State be an Original State, may make laws dividing the State into divisions and determining the number of senators to be chosen for each division, and in the absence of such provision the State shall be one electorate.
Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators.
The senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified by the Governor to the Governor-General.
The creation of Section 7 was a series of contentions and controversies inside the convention, which is akin to having a bin fire in a fireworks factory. The quick way to describe the fight over Section 7 is that everyone involved, did their part in adding petrol, gunpowder, fireworks, wood, coal and anything else that they could think of to the fire, just for the sole purpose of keeping the fire raging.
The first statement is simple enough. The Senate should have Senators from each state. The next clause is dynamite. The House of Lords at Westminster is an unelected body. The Senate in Canada is an unelected body. Various upper houses in the six colonies were unelected bodies. To then suggest that the Senate of the Commonwealth should have members who are directly chosen by the people was deeply offensive to those who thought that the Senate should remain a quiet house of dignity and review. The next word 'voting' is the direct result of argument and insult; which finally resulted in people's will being broken.
The next clause is interesting. By making the states as a single electorate for the purposes of the Senate, what we get is multi-member constituencies. The idea of Duverger's Law which says that single member districts tend to produce two-party systems of government, probably wasn't thought of at the time and given that the first Federal Parliaments were a dispirit mess of parties it probably wasn't even imaginable at the time.
The operation of Section 7 with the states being multi-member constituencies is the reason why the big parties today, never really have control over the upper house. The Senate instead of an august house of review, actually turned out to be a house of amendment where different voices get their say rather than the party machines spitting out whatever law they want without pause.
The states however, especially Queensland, wanted the right to retain the ability to split their allocation of Senators. Rather, only Queensland wanted the right to do this.
Queensland is a strange place. Queensland not only doesn't like the rest of the country, it also doesn't really like itself and since 1852, which before Queensland even became their own colony, there have been agitations that Queensland be split into two or three subdivisions.
The argument was never ever resolved and so the Constitutional Convention of 1899 finally threw their hands up in the air and kicked that issue down the road; stating that the Constitution would allow the State of Queensland to be split into divisions in the future that the Parliament of Queensland itself would determine the number of Senators of each division. This is your stupid problem; you can deal with it.
Section 7 also hints that if a State should split into smaller states, that those new states rather than be given a whole new allocation of Senators, would have to negotiate with the states that they left to work out how many they would be given.
Upon Federation, there were six states and each of the Original States were given six senators. Again this has always been a point of contention because it means that a state as small in population as Tasmania has equal weight in the Senate as a very populous state like New South Wales. Prime Minister Paul Keating decried the Senate as being "unrepresentative swill" and to be fair, he was right. It was and is unrepresentative.
By giving the little states the same amount of power in the Senate as the big states, this means that they can't be simply pushed out of the way when it comes to the passage of legislation. If New South Wales and Victoria ever got their act together and worked together as a massive bloc, they could in theory just dictate legislation. It is kind of a happy safeguard that New South Wales and Victoria can't agree on anything and hate each other's guts.
Lastly, Section 7 attempts to remove the fevers of the general public by having Senators elected for fixed six year terms. That's sufficiently long enough for any immediate outrage to blow over and burn out; which means that Senators should (in theory) be better tempered and more sensible in their deliberations as a house of review. In practice, the fact that the Senate is a collection of multi-member constituencies instead of single-member constituencies means that it is far from tempered and sensible. Instead of banana-choc and choco-banana we get banana-choc and choco-banana and just choc and just banana as well as all kinds of fruits and nuts; and being appointed for six years means that they can not be got rid of in a hurry.
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8. Qualification of electors
The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.
The Constitution had to deal with an issue which seems so strange now as to be barbarian. At the time of Federation, the franchise wasn't universal (women didn't have the right to vote in some states) and on top of that it wasn't extended to Aboriginal and Torres Straight Islanders in some states (especially Queensland).
Again this is classic kicking the can down the road stuff from the Constitution because by leaving the states to define who their 'electors' were, this was not a problem for the Constitution to bother with.
The operation of Section 8 really only means that if you get a vote for the House of Reps, then you also get a vote for the Senate but only once for each house.
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9. Method of election of senators
The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.
Times and places
The Parliament of a State may make laws for determining the times and places of elections of senators for the State.
The Constitution imagines that there is going to be some kind of Commonwealth Electoral Act but kicks that can down the road, into our rapidly increasing pile of cans. It stands to reason that the Parliament of the Commonwealth should be able to make laws with regards the choosing of Senators and it makes sense that those laws should be the same across Australia. It still, for the moment, left the ability for the states to do that job in the mean time.
The passage of that Commonwealth Electoral Act in 1918, more or less rendered this specific clause with regards the time and place of a Senate election, redundant. Since the Constitution will go on to say that Federal law trumps State law (in so far as there is a disagreement), then whatever laws that the states may have made, no longer apply after the passage of the Commonwealth Electoral Act in 1918.
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10. Application of State laws
Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State.
We have just kicked another can down the road and into the pile. Section 10 says that until the Commonwealth gets around to passing legislation with regards elections, then the state laws will apply.
What this means is that in effect, Women's Suffrage isn't extended in New South Wales, Queensland, Victoria and Tasmania until the the Parliament did provide otherwise with the Commonwealth Franchise Act 1902. Some Aboriginal people in Queensland wouldn't get the vote until 1967; due to the interaction of this section, Section 41 and Queensland State Law.
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11. Failure to choose senators
The Senate may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate.
I find this amazing. Let's assume for a second that it is 1906 and that a Commonwealth election is going on. Tasmania has sorted out who is going to the Senate because it is only a little state and doesn't have very many votes to count. New South Wales on the other hand, is still counting the votes and has no idea who its Senators are.
Section 11 provides that even if the state can't get its electoral results together, then the Senate is allowed to proceed with its normal business without the Senators from that state being present.
Either the Constitutional Convention couldn't have foreseen that some states were late to the party when it came to the results of the referendum on the Constitution itself, or (and this is scary) is that the The Constitutional Convention very much did foresee the referendum rabble in Western Australia owing to the fact that to get from either Perth or Brisbane to Melbourne was a major sea voyage. In 1901 there were no sensible national highways yet built.
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12. Issue of writs
The Governor of any State may cause writs to be issued for elections of senators for the State. In case of the dissolution of the Senate the writs shall be issued within ten days from the proclamation of such dissolution.
Section 12 is largely redundant now because of the Australian Electoral Commission and it has to be said that the AEC is arguably the world's best when it comes to the holding of an election. I do not think we realise just how fantastic the AEC is, or how good the electoral system is.
This section though, even in 1901 was incredibly narrow in terms of its scope. The members of the Senate sit for fixed terms; so while I guess that there is provision for a state to have conducted its own elections at a different time to everyone else (which still might be the case, who knows?), once the Governor-General has issued the command then the state Governors must have followed suit.
The reason why a state might want to hold an election for the Senate at a different time to the rest of the country, may have included their own state elections, where the state Governor in discussions with their own State Premiers, may have wanted to avoid date clashes. Although this is such an edge case as to be trivial.
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13. Rotation of senators
As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators of the first class shall become vacant at the expiration of three years, and the places of those of the second class at the expiration of six years, from the beginning of their term of service; and afterwards the places of senators shall become vacant at the expiration of six years from the beginning of their term of service.
The election to fill vacant places shall be made within one year before the places are to become vacant.
For the purposes of this section the term of service of a senator shall be taken to begin on the first day of 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 July preceding the day of his election.
We are currently within an election period. The elections for the Senate which were the impetus for us to go to the polls on May 21, are happening as a direct result of the operation of this section. There must be an election on or before the 21st of May because of various provisions in the Commonwealth Electoral Act 1918 and Section 13 lays out that next term will begin on July 1st.
As the next term will begin on 1st July 2022, then the election for the next term could have happened as long ago as the first Saturday on or after 1st July 2021. In practice this means that House and Senate elections normally happen together and that the synchronisation of the election cycles of the House and Senate is a pretty good fit; with House elections usually also occurring about every three years because no political party wants to gamble with sending the electorate to the polls twice in a year.
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14. Further provision for rotation
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.
In practice Section 14 only really means that when the number of Senators has been increased, the Senators have been either one class or the other with respect to which election cycle they are on.
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15. Casual vacancies
If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, or, if there is only one House of that Parliament, that House, shall choose a person to hold the place until the expiration of the term. But if the Parliament of the State is not in session 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 from the beginning of the next session of the Parliament of the State or the expiration of the term, whichever first happens.
Where a vacancy has at any time occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly recognized by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate, a person chosen or appointed under this section in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, shall, unless there is no member of that party available to be chosen or appointed, be a member of that party.
Where:
in accordance with the last preceding paragraph, a member of a particular political party is chosen or appointed to hold the place of a senator whose place had become vacant; and
before taking his seat he ceases to be a member of that party (otherwise than by reason of the party having ceased to exist);
he shall be deemed not to have been so chosen or appointed and the vacancy shall be again notified in accordance with section twenty-one of this Constitution.
The name of any senator chosen or appointed under this section shall be certified by the Governor of the State to the Governor-General.
If the place of a senator chosen by the people of a State at the election of senators last held before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 became vacant before that commencement and, at that commencement, no person chosen by the House or Houses of Parliament of the State, or appointed by the Governor of the State, in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, held office, this section applies as if the place of the senator chosen by the people of the State had become vacant after that commencement.
A senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, being a senator appointed by the Governor of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State, shall be deemed to have been appointed to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State that commenced or commences after he was appointed and further action under this section shall be taken as if the vacancy in the place of the senator chosen by the people of the State had occurred after that commencement.
Subject to the next succeeding paragraph, a senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 who was chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State shall be deemed to have been chosen to hold office until the expiration of the term of service of the senator elected by the people of the State.
If, at or before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, a law to alter the Constitution entitled "Constitution Alteration (Simultaneous Elections) 1977" came into operation, a senator holding office at the commencement of that law who was chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State shall be deemed to have been chosen to hold office:
if the senator elected by the people of the State had a term of service expiring on the thirtieth day of June, One thousand nine hundred and seventy-eight – until the expiration or dissolution of the first House of Representatives to expire or be dissolved after that law came into operation; or
if the senator elected by the people of the State had a term of service expiring on the thirtieth day of June, One thousand nine hundred and eighty-one – until the expiration or dissolution of the second House of Representatives to expire or be dissolved after that law came into operation; or, if there is an earlier dissolution of the Senate, until that dissolution.
Whoa.
Section 15 is the result of what happens after you have kicked a can down the road, the contents have rotted inside, and the can has exploded due to botulism. The 1977 referenda came not only in the wake of the 1975 Constitutional Crisis but the unpleasantness of the years beforehand, where after a vacancy in the Senate, the Governor of Queensland filled the vacancy with a member of the opposite political football team than the one who had gone.
The amendments which were made to the Constitution following the 1977 referenda changed the existing procedures by providing that:
- when there is a casual vacancy, the state legislature has to replace a an outgoing Senator with a member of the same political party
- that that new Senator's term continues and completes the end of the original senator's term
The 1977 Amendments are supposed to prevent major changes in the balance of power in the senate in the middle of a parliamentary term but rather than finishing the job properly, it has kicked a brand new can down the road. The 1977 Amendments don't actually provide any time frame or limits within which the new appointment has to be made. It leaves the possibility open for a particularly nasty state legislature to do nothing and simply refuse to fill the vacancy.
As stated above, Section 11 gives the Senate permissions to proceed with its normal business without the Senators from that state being present. This means that after a Senate position becomes vacant and if a state legislature refuses to fill any vacancy, then by default the Senate can carry on its merry way despite the failure. The 1977 Amendments didn't completely solve the problem.
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16. Qualifications of senator
The qualifications of a senator shall be the same as those of a member of the House of Representatives.
In principle this sets out an equality between the two houses except in the provisions in which the House of Representatives has special jurisdiction; which is mainly the introduction of money bills (ie. the budget).
Sounds innocuous, right? Wrong!
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17. Election of President
The Senate shall, before proceeding to the despatch of any other business, choose a senator to be the President of the Senate; and as often as the office of President becomes vacant the Senate shall again choose a senator to be the President.
The President shall cease to hold his office if he ceases to be a senator. He may be removed from office by a vote of the Senate, or he may resign his office or his seat by writing addressed to the Governor-General.
This is mostly a procedural issue where the Senate chooses someone to sit in the big chair at the head of the chamber. The President is almost always a member of the government; which is odd considering that government is formed by a majority of members in the other place.
As the President is a procedural position, then Section 17 provides that upon someone ceasing to be a member of the Senate, they also cease to be the President. This is different to being a Minister of The Crown, where a person can still be a Minister even after losing a seat or resigning a seat. This will be important later in another one of these survey posts.
What I think is particularly delightful about this, is that Australia has a President. It is one of the strange quirks of being a Constitutional Monarchy, that we have a position which has the same name which is usually reserved for the head of executive government in other nations but here, they are just a person with a big chair and the power to yell.
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18. Absence of President
Before or during any absence of the President, the Senate may choose a senator to perform his duties in his absence.
There are some sections of the Constitution which really make you scratch your head until you read through the transcripts of the Constitutional Conventions. The fact that this needed to be explicitly spelled out is the direct result of insult and nastiness within the Conventions and from what as far as I can tell, what should be grown man acting like six-year old children arguing over who has the most wooden building blocks.
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19. Resignation of senator
A senator may, by writing addressed to the President, or to the Governor-General if there is no President or if the President is absent from the Commonwealth, resign his place, which thereupon shall become vacant.
Well that's fair enough. If you want to quit being a Senator, then put it in writing.
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20. Vacancy by absence
The place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the Senate, fails to attend the Senate.
I know of no occasions when anyone has fallen foul of Section 20 and the only conceivable way that this could happen in my imagining, is if a Senator were to die and it took two months before anyone realised that they weren't there. That may have been possible in 1901 but in 2022 when it takes only mere hours to cross thousands of miles by air, then the chances of this being a thing are non-zero but close to it. I suppose that a Senator could just, not show up for two months but honestly, what would be the point of that?
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21. Vacancy to be notified
Whenever a vacancy happens in the Senate, the President, or if there is no President or if the President is absent from the Commonwealth the Governor-General, shall notify the same to the Governor of the State in the representation of which the vacancy has happened.
This is the chain of notification if for some reason there is a vacancy in the Senate. The Senator has to tell the President that they want to resign. The President or the Governor-General then has to inform the relevant Governor of the State so that they can arrange a replacement and fill the vacancy.
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22. Quorum
Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers.
At the moment, that quorum happens to be 26 members. It means in the event of a massive catastrophe such as a nuclear war, that in addition to annihilation, we'd end up with anarchy as well. Though I suppose that if there was a massive catastrophe on the scale of a nuclear war, the last thing that you'd be thinking about is the passage of legislation after it had been through the House of Representatives.
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23. Voting in Senate
Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.
This is pretty easy. When a vote is required in the Senate, there is a division and people shuffle around the chamber. If more than half the members (50% + 1) are on one side of the chamber, then that is the result of the vote. The Senate and the House both engage in open visible caucusing for voting decisions. They could just as easily push a button or pass ballots or tokens but this is the way things have been done for centuries and this is the way that they will continue to be done.
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