§ 84. “The Senate shall divide the Senators.”

The Senate will be a continuous body so far as its continuity is not broken by a dissolution under sec. 57. It may be assumed that such a break will only occur on rare and abnormal occasions in the history of the Commonwealth. Permanency of succession being its natural condition, arrangements have to be made for the periodical retirement of batches of senators so as to give effect, as far as possible, to the provisions of the Constitution; which provides that whilst senators shall be chosen for a term of six years, half of them shall retire every three years. Six years of service is the maximum term for which all senators are elected, but the policy of the Constitution is to cause the retirement of half the senators for each State every three years instead of all the senators every six years. If all the senators were to retire at the same time there would be no element of continuity in the constitution of the Senate. By the rotation principle that advantage is secured, whilst there will also be, at short intervals, an infusion of either fresh blood or restored vitality in the personnel of the Senate by the return, every three years, of newly chosen senators, or by the re-election of former senators strong in the confidence of their respective States. As the members of the first Senate, and of every Senate elected after a dissolution, are elected at the same time, they would, but for this section, be all entitled to six years tenure of office so far as not interfered with by a dissolution. For the purpose of securing the retirement every three years of a moiety of the senators for each State, an arbitrary provision has been adopted that one-half of the senators for each State in the first Senate, and every Senate succeeding a dissolution,

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shall vacate their seats at the expiration of three years from the beginning of their term of service. The Constitution does not itself specify the method of determining which half of the senators, for each State, shall retire at the end of half their terms of service. It requires the Senate to divide the senators for each State into two classes, as nearly equal in number as practicable, and declares that the places of senators of the first class shall become vacant at the expiration of the third year, and the places of those of the second class at the end of the sixth year; the Senate may divide them by lot or it may divide them according to some recognized principle; it may place the three senators for each State who stood highest on the poll in one class, entitled to six years, and place the other three senators for each State in the other class entitled to three years of office.

The words “as nearly equal in number as practicable” are intended to include the possible contingency of the number of senators for each State being altered, under section 7, to an odd number; or of a new State being accorded an odd number of senators. So long as the number of senators for each State remains even, the equality will of course be exact.

In the Draft Bill of 1891, as well as in the Bill as settled in the Adelaide and Sydney sessions, the Senate was authorized to divide the senators into two classes by lot. At the Melbourne session, the words “by lot” were omitted. The Senate has now, therefore, the unrestricted right to divide the senators for each State into two classes in such manner as it thinks fit. The purpose of the amendment is shown by the following extracts from the debates of the Convention:—

“The amendment I suggest need not occupy more than a moment or two in discussion. It is a blot on the face of a measure of this kind to require that the division of the senators into two classes after the first election shall be made by lot. I could understand that device being adopted in the absence of any other means of determining which senators should have the longer period. But the poll itself ought to afford, or be taken to afford, a reasonable indication of the wishes of the electors in this respect, and it is a probable injustice, as well as a mistake, to fall back on the antique method of settling questions of the kind. I move, therefore, the omission of the words ‘by lot,’ which will leave it absolutely at the discretion of the Senate itself to determine, after it meets, on what method the division shall take place. If the Drafting Committee think fit, they can adopt the method of providing that the three highest on the poll should have the six years' tenure. If that be the sense of the Convention, I will now simply submit my motion.” (Mr. Alfred Deakin, Conv. Deb., Melb., p. 1928.)

“I think a great deal can be said in favour of the view the Hon. Mr. Deakin has placed before the Convention. In a constitutional matter of this kind we ought not to resort to deciding a question by lot unless there are no other means of determining the matter. If the Convention are willing to agree to the amendment, it might be left to the Drafting Committee to decide whether any provision for the division of the Senate should take place, or whether the matter should be left to the senators themselves.” (Mr. R. E. O'Connor, id. p. 1928.)

Under the corresponding section of the Constitution of the United States of America the following procedure was adopted:—

“On the original organization of the Senate, May 14th, 1789, a committee was appointed to consider and report a mode of carrying into effect this constitutional provision. In accordance with their report, the senators then sitting were arbitrarily divided into three classes, the first including six members, and the second and third seven each. Three papers, numbered 1, 2 and 3 respectively, were rolled up and put into a box by the secretary; and then one senator from each class drew a number. The class which drew number 1 vacated their seats at the expiration of the second, the class which drew number 2 vacated their seats at the end of the fourth, and those who drew number 3 at the end of the sixth year. This plan, on account of the number then present at the Senate, left the first class, who vacated their seats at the expiration of the second year, one less in number than each of the other two. To prevent any unnecessary inequality in the classes, when the senators from New York appeared, two lots, one numbered 3, that of the small class, and one blank, were placed in the box. After each senator had drawn a lot, the one who drew number 3 was placed in the small class; and the other drew again from the box containing numbers 1 and 2, taking his place in the class whose number he drew. When the senators from North Carolina appeared, there were then two classes of equal numbers, and one with a number in excess of each. The numbers of the equal classes were put in the box. Then each

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senator drew one and was classed according to the number he drew. The classes were then equal in number. Accordingly, when the senators from Rhode Island appeared, papers numbered 1, 2 and 3 respectively, were again placed in the box, from which each senator drew one. The proceedings continued according to these successive methods until the admission of the senators from Washington, North Dakota and South Dakota at the same time. The same three numbers were then placed in the box, and drawn by one senator from each of the new States. The secretary then placed in the ballot-box two papers of equal size, numbered 1 and 3 respectively. Each of the senators from the State which had thus drawn number 1 drew out a paper and was assigned in accordance with the number he drew. The secretary then placed in the ballot-box numbers 1, 2 and 3, and each of the senators from the State which had drawn number 2 drew a lot from the box. They were assigned in accordance with the number drawn by each; and the remaining lot with a blank was again placed in the box and the senators from the remaining State drew from them. He who drew a number was assigned to the class represented by it; and he who drew a blank drew again from the box, which then contained the other two numbers, and was assigned according to the number drawn. When the senators from Idaho, Montana, and Wyoming were admitted at the same time, the same proceedings took place. A custom has been thus established which will be followed in the future.” (Foster's Comm. I. p. 483-4.)

“The classification is settled by lot when the senators first appear from the new States, in the mode adopted in the first classification, so as to prevent two vacancies occurring in the same State at the same time.” (Journal Senate, May 15, 1789, 26th ed., 1820; Baker, A.C. p. 7.)

“The provision for the election of members by rotation was adopted unanimously at the suggestion of Gorham and Randolph. Penn's Frame of Government for Pennsylvania had provided that in the Council one-third of the members should be elected every year, and at the time of the Convention the upper houses of New York, Virginia, and Delaware, as well as of the first-named State, were filled in a similar manner. The idea is said to have been borrowed from the senates of the cities in the Netherlands, who had taken it from Venice.” (Foster's Comm. I. p. 471.)

“The rotation principle was in great favour among the Republicans of the seventeenth century. The earliest mention of it in English political history occurs in a pamphlet published by James Harrington—author of ‘The Commonwealth of Oceana’—in 1660, which he entitled ‘The Rota: or a Model of a Free State, or Equal Commonwealth.’ The nature of the scheme may be gathered from Anthony Wood's account of the Rota Club, established by Harrington and his friends:—‘The model of it was that the third part of the Senate or House should rote out by ballot every year (not capable of being elected again for three years to come), so that every ninth year the Senate would be wholly altered. No magistrate was to continue above three years, and all to be chosen by ballot. This club of Commonwealthsmen lasted till about 1659.’ (Athenæ Oxon. vol. 11, p. 591.) Milton, who favoured a perpetual Senate, pointed out an objection to this scheme in his pamphlet on ‘The Ready and Easy Way to Establish a Free Commonwealth,’ published shortly after Harrington's appeared:—‘For it appears not how this (retirement by rotation) can be done without danger and mischance of putting out a great number of the best and ablest, in whose stead new elections may bring in as many raw, unexperienced, and otherwise affected, to the weakening and much altering for the worse of public transactions.”’ (G. B. Barton, Notes on the Draft Bill, 1891, p. 25.)

“The Senate resembles the Upper Houses of Europe, and differs from those of the British colonies and of most of the States of the Union, in being a permanent body. It does not change all at once, as do bodies created by a single popular election, but undergoes an unceasing process of gradual change and renewal, like a lake into which streams bring fresh water to replace that which the issuing river carries out. This provision was designed to give the Senate that permanency of composition which might qualify it to conduct or control the foreign policy of the nation. An incidental and more valuable result has been the creation of a set of traditions and a corporate spirit, which have tended to form habits of dignity and self-respect. The new senators, being always in a minority, are readily assimilated; and though the balance of power shifts from one party to another, according to the predominance in the State legislatures of one or other party, it shifts more slowly than in bodies directly chosen all at once, and a policy is therefore less apt to be suddenly reversed.” (Bryce, Amer. Comm. I. p. 99.)