This is a list of appointments to the Australian Senate, which is the upper house of the Parliament of Australia, filling casual vacancies, from the Senate's creation in 1901 until the present day. There is a second list of invalid elections and appointments to the Senate.
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The Law You Won't Be Told
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The Senate should be abolished (Debate)
Transcription
# The Law You Won't Be Told On a Jury you know your options: guilty, or not. But there's another choice that neither the judge nor the lawyers will tell you -- often because they're not allowed to and also it might better if you *don't* know. This video will tell you that third choice, but be warned: simply *watching* may prevent you from ever serving on a jury -- so this is your last chance to hit the pause button before you learn about... Jury nullification: when the defendant is 100% beyond-a-reasonable-doubt guilty *but* the jurors *also* think he shouldn't be punished. The jury can nullify the law and let him go free. But before your on your next jury and yell 'Null! Booya!' at the judge you should know that just talking about jury nullification in the wrong circumstances can get you arrested. Though a video such as this one, simply acknowledging the *existence* of jury nullification and in *no way advocating* it is totally OK. And, while we're at it: *(CGP Grey is not a lawyer, this is not legal advice it is meant for entertainment purposes only. Seriously, guy, don't do anything in a court of law based on what an Internet Video told you. No joke.)* So why can't you do this? It's because nullification isn't *in* the law †, but exists as a logical consequence of two other laws: First: that juries can't be punished for a 'wrong' decision -- no matter the witnesses, DNA, or video proof show. That's the point of a jury: to be the decider. and Second: when a defendant is found not-guilty, that defendant can't be tried again for the same crime ‡. So there *are* only two stated options: guilty or not, it's just that jury nullification is when the words of the jurors don't match their thoughts -- for which they can't be punished and their not-guilty decision can't be changed. These laws are necessary for juries to exist within a fair system, but the logical consequence is... contentious -- lawyers and judges argue about jury nullification like physicists argue about quantum mechanics. Both are difficult to observe and the interpretation of both has a huge philosophical ramification for the subject as a whole. Is nullification the righteous will of the people or an anarchy of twelve or just how citizens judge their laws? The go-to example in favor of nullification is the fugitive slave law: when Northern juries refused to convict escaped slaves and set them free. Can't argue with that. But the anarchy side is Southern juries refusing to convict white lynch mobs. Not humanity at its best. But both of these are juries nullifying the law. Also juries have *two* options where their thoughts may differ from their words. Jury nullification usually refers to the non-guilty version but juries can convict without evidence just as easily as they can acquit in spite of it. This is jury nullification too and the jurors are protected by the first rule, though the second doesn't apply and judges have the power to overrule a guilty verdict if they think the jurors are… nt the best. And, of course, a guilty defendant can appeal, at least for a little while. Which makes the guilty form of jury nullification weaker than the not-guilty kind. Cold comfort, though. Given the possibility of jurors who might ignore the law as written, it's not surprising when picking jurors for a trial, lawyers -- whose existence is dependent on an orderly society -- will ask about nullification, usually in the slightly roundabout way: "Do you have any beliefs that might prevent you from making a decision based strictly on the law?" If after learning about jury nullification you think it's a good idea: answer 'yes' and you'll be rejected, but answer 'no' with the intent to get on the jury to nullify and you've just committed perjury -- technically a federal crime -- which makes the optimal strategy once on a jury to zip it. But This introduces a problem for jurors who intend to nullify: telling the other 11 angry men about your position is risky, which makes nullification as a tool for fixing unjust laws nation wide problematic. (Not to mention about 95% of criminal charges in the United States never make it to trial and rather end in a plea bargain, but that's a story for another time.) The only question about jury nullification that may matter is if jurors should be *told* about it and the courts are near universal † in their decision: 'no way'. Which might seem self-interested -- again, courts depend on the law -- but there's evidence that telling jurors about nullification changes the way they vote by making evidence less relevant -- which isn't surprising: that's what nullification *is*. But mock trials also show sympathetic defendants get more non-guilty verdicts and unsympathetic defendants get more *guilty* verdicts in front of jurors who were explicitly told about nullification compared to those who weren't. Which sounds bad, but it also isn't difficult to imagine situations where jurors blindly following the law would be terribly unjust -- which is the heart of nullification: juries judge the law, not solely evidence. In the end righteous will of the people, or anarchy, or citizen lawmaking -- the system leaves you to decide -- but as long as courts are fair they require these rules, so jury nullification will always be with us.
Appointment procedures
States
Section 15 of the Australian Constitution requires the parliament of the relevant state to choose a replacement. This is done in a joint sitting of the upper and lower house (except for Queensland, which has a unicameral parliament). In the event that the state parliament is not in session, the Governor of the state (acting on the advice of the state's executive council) may appoint a replacement senator, but such an appointment lapses if it is not confirmed by a joint sitting of the parliament within 14 days.
Prior to 29 July 1977, the filing of casual vacancies was complex. While senators were elected for a six-year term, people appointed to a casual vacancy only held office until the earlier of the next election for the House of Representatives or the Senate, at which the vacancy would be filled by the electors of the relevant state.[1] It was also an established convention that the state parliament choose (or the governor appoint) a replacement from the same political party as their predecessor, however this convention was not always followed.[n 1]
As a result of the 1977 referendum:[2]
- a state legislature must replace a senator with a member of the same political party, and
- the new senator's term continues until the end of the original senator's term.
Territories
Replacement senators for the Australian Capital Territory (ACT) or the Northern Territory (NT) are chosen by the relevant territory legislature, under s.44 of the Commonwealth Electoral Act 1918. Where the legislature is not in session, the choice is made by the Administrator of the NT (acting on the advice of the territory's executive council) or the Chief Minister of the ACT. The procedure has been in use in the NT since 1980 and the ACT since 1989.
Between 1980 and 1989, replacement senators in the ACT were chosen by a joint sitting of both houses of the Federal Parliament, under s.9 of the Senate (Representation of Territories) Act 1973. Prior to 1980, replacement senators in the ACT or the NT were to be elected in a by-election, though this never occurred.
List of appointments to the Senate
- ^ Of the 66 appointments to 1977, 12 (18%) were from a different party, John Shannon (1912), John Earle (1917); Edward Mulcahy (1919), John MacDonald (1922), Sir Henry Barwell (1925), John Verran (1927), Harry Kneebone (1931), Patrick Mooney (1931), Philip McBride (1937), Alexander Fraser (1946), Cleaver Bunton (1975), and Albert Field, (1975).
- ^ Small resigned from the Senate after he discovered that he held dual Australian-New Zealand dual citizenship. After renouncing his New Zealand citizenship, he was reappointed to the Senate casual vacancy caused by his own resignation.
- ^ Bernardi was elected as a member of the Liberal Party before the start of the 45th Parliament, but resigned from the party and founded the Australian Conservatives during his term. Prior to the start of the 46th Parliament, the Australian Conservatives was dissolved and Bernardi became an Independent.
- ^ a b Carr resigned one month after the 2013 federal election where he was re-elected for a new Senate term that was due to start on 1 July 2014. His resignation resulted in a vacancy in his current term expiring on 30 June 2014 and his new term due to start on 1 July 2014.[3] O'Neill was appointed to fill both casual vacancies in two separate joint sittings of the NSW Parliament on 13 November 2013 and 2 July 2014.
- ^ a b c d e f g h i j k l m n o p q r s t u v w x y z aa Occurred after an election but before the new Senate was sworn in.
- ^ In the period between the election and her term formally commencing, Ferris worked as a member of parliamentary staff. In order to avoid any argument that she was disqualified for holding "an office of profit under the crown", Ferris resigned and was re-appointed to the vacancy.
- ^ Elected as a member of the ALP, but resigned from the party during his term.
- ^ Elected as a member of the Liberal Movement, but joined the Liberal party on the break-up of the Liberal Movement.
- ^ Haines had also been on the Liberal Movement ticket with Hall in 1974 however she had joined the Democrats on the break-up of the Liberal Movement.
- ^ First Indigenous Australian to be a member of the Parliament of Australia
- ^ Elected as a member of Liberal Party, but quit during his term to become an independent.
- ^ a b Liberal Senator Rex Pearson died on 11 September 1961; Liberal member Gordon Davidson was appointed to fill the ensuing vacancy on 28 September. He did not stand at the 9 December 1961 election and his position was won by Liberal candidate Nancy Buttfield. In order to take up the seat with a term finishing on 30 June 1965, Buttfield resigned her pre-existing seat won at the 1955 election and scheduled to expire on 30 June 1962; Davidson was appointed to that position on 8 February 1962.[1]
- ^ The appointment lapsed on 4 August due to lack of confirmation by the South Australian Parliament, but Vardon was reappointed.
- ^ The election of Anti-Socialist senator Joseph Vardon was declared void on 31 May 1907;[4] on 11 July ALP member James O'Loghlin was appointed to replace him. This appointment was declared void on 20 December,[5] and a supplemental election was held in 1908.
List of invalid elections and appointments to the Senate
This is a list of people who have been declared to have been elected or appointed to the Australian Senate that the High Court, sitting as the Court of Disputed Returns, has subsequently declared to be ineligible. Some of these have actually sat in the Senate and participated in proceedings; however, the High Court has held that their presence did not invalidate the proceedings of the Senate.[5]
- ^ a b c d e f g h On 27 October 2017 as part of the 2017 Australian parliamentary eligibility crisis, Scott Ludlam, Malcolm Roberts, Fiona Nash and Larissa Waters were held to be "incapable of being chosen" as senators as they were dual citizens.[7] Ludlam resigned on 14 July and Waters resigned on 18 July while Nash and Roberts continued to sit until the High Court decision. The date reflects when each was first elected. Three of the seats were filled by a recount, with the replacements appointed by the High Court on 10 November. Subsequently Jacqui Lambie, Stephen Parry and Skye Kakoschke-Moore were also found ineligible, and were replaced in February 2018. Katy Gallagher was later also found ineligible.
- ^ South Australian Family First Senator Bob Day resigned on 1 November 2016. On 5 April 2017 the High Court held that Day was "incapable of being chosen" or sitting as a Senator since February 2016 as he had an indirect interest in an agreement with the Commonwealth. Day's seat was filled by Lucy Gichuhi in a recount.[8] Day sat in the Senate between February and 1 November 2016.
- ^ a b Rod Culleton was elected as a member of One Nation, but announced his resignation from the party on 18 December 2016. The President of the Senate declared his seat vacant on 11 January 2017 due to his bankruptcy.[9] On 3 February the High Court declared that at the time of the 2016 election he was subject to being sentenced to imprisonment for up to two years and therefore he had never been validly elected.[10] Culleton sat in the Senate between 2 July and 23 December 2016.
- ^ a b The election was declared void before the commencement of the Senate term
- ^ The entire half-Senate election for WA was declared void by the High Court because 1,375 ballot papers were lost during an official recount.[11] Wayne Dropulich was the only candidate who was unsuccessful at the special election in 2014, the seat taken by Zhenya Wang.
- ^ Heather Hill was a dual citizen of the United Kingdom and Australia, and the High Court declared she was disqualified from election as the citizen of a "foreign power".[12]
- ^ a b Robert Wood was a citizen of the United Kingdom, resident in Australia, however he had never obtained Australian citizenship. The High Court declared as he was not an Australian citizen Wood was disqualified from election.[13] Wood sat in the Senate between 1 July 1987 and 12 May 1988. Irina Dunn was declared elected on a recount and was expelled from the NDP because she did not resign to allow Wood to be re-appointed.
- ^ a b The election of Anti-Socialist senator Joseph Vardon was declared void on 31 May 1907;[4] on 11 July ALP member James O'Loghlin was appointed to replace him. This appointment was declared void on 20 December,[5] and a supplemental election was held in 1908 which was won by Vardon.
References
- ^ a b Evans, H. "Filling Casual Vacancies before 1977, Volume 3" (PDF). The Biographical Dictionary of the Australian Senate. Retrieved 24 February 2017.
- ^ Constitution Alteration (Senate Casual Vacancies) Act 1977 (Cth).
- ^ "Advice – Filling of vacancies following the resignation of the Honourable Bob Carr" (PDF). Crown Solicitor New South Wales. 1 November 2013. Archived from the original (PDF) on 15 March 2016. Retrieved 13 November 2013.
- ^ a b Blundell v Vardon [1907] HCA 75, (1907) 4 CLR 1463.
- ^ a b c Vardon v O'Loghlin [1907] HCA 69, (1907) 5 CLR 201.
- ^ "Senator Tim Storer". Senators and Members of the Parliament of Australia. Retrieved 6 November 2021.
- ^ Re Day (No 2) [2017] HCA 14, "Judgment summary" (PDF). High Court. 5 April 2017.
- ^ Re Culleton [2017] HCA 3.
- ^ Re Culleton (No 2) [2017] HCA 4.
- ^ Australian Electoral Commission v Johnston [2014] HCA 5, (2014) 251 CLR 463.
- ^ Sue v Hill [1999] HCA 30, (1999) 199 CLR 462.
- ^ Re Wood [1999] HCA 30, (1999) 199 CLR 462.