§ 81. “Failure to Choose Senators.”

This section must be read in conjunction with the quorum section, which enacts that the presence of at least one-third of the whole number of senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers (sec. 22). Accordingly the Senate will be capable of being duly constituted for the despatch of business if at least one-third of the States under the system of equal representation have provided for their representation in that body; the failure of two-thirds of the States to return the quota of senators to which they are entitled under the Constitution would not paralyse the legislative action of the Senate, and the absent and unrepresented States would be bound by laws passed whilst the statutory quorum was present, just as legally as if they were fully represented. The Constitution of the United States of America requires an absolute majority of the members of the Senate to constitute a quorum (Art. I. sec. 5, sub-sec. 1), and there is no section corresponding to the above one stipulating that unrepresented States are bound as effectively as those which have elected Senators. In the case of Cohens v. Virginia, 6 Wheat. 264, it was said that if a majority of States should refuse to elect senators the government of the United States of America would necessarily come to an end. Applying that principle to the Constitution of the Commonwealth it might be contended that there would be a deadlock in the Federal Government if more than two-thirds of the States failed to elect senators. The risk of such a failure, however, is very remote.

This section contains the only legal and effective provision made by the Constitution for the prompt and regular return of senators by the States. The whole carriage of senatorial elections is vested in the State authority; the Federal Government can exercise no control or supervision over them. The Governor of each State issues the writ for a senatorial election; the election is conducted by State officers; the Governor of the State, on the return of the senatorial writ to him, has to certify to the Governor-General the names of senators duly chosen for his State. There is no time limited within which the certification has to be made. The fact that a quorum of the Senate may proceed to the despatch of business, notwithstanding any neglect or delay on the part of a State to provide for its representation, will be a strong inducement and incentive for the prompt holding of elections and the return of senators to fill vacancies as they arise.

Issue of writs.

12. The Governor of any State may cause writs to be issued82 for elections of senators for the State. In case of the dissolution of the Senate83 the writs shall be issued within ten days from the proclamation of such dissolution.

HISTORICAL NOTE.—At the Adelaide sessions, 1897, in committee, Mr. Barton introduced a clause (11A) as follows:—

“For the purpose of holding elections of members to represent any State in the Senate, the Governor of the State may cause writs to be issued by such persons in such form and addressed to such returning officer as he thinks fit.”

Mr. Isaacs thought that the writs ought to be issued by the Governor-General, as in the case of writs for the House of Representatives. Mr. Holder moved an amendment to provide that the writs should be issued by the Governor-General in Council; but this was negatived. (Conv. Deb., Adel., pp. 1149-50.)

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At the Sydney session, a suggestion by the Legislative Assembly of Victoria to omit the clause was not adopted. (Conv., Syd., 1897, p. 989; and see id. pp. 391-4.) At the Melbourne session, drafting amendments were made before the first report and after the fourth report.