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§ 91. “The Governor of the State may … appoint.”

If the Houses of Parliament of the State, in the representation of which a casual vacancy occurs, are not in session at the time when it is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place for a temporary period; that is 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, under the power conferred by the second paragraph of this section. The clear limitations of this section should prevent many questions arising, such as have arisen under the Constitution of the United States. According to one American precedent the Executive of a State may appoint a senator to fill an anticipated vacancy before it actually occurs. (Case of Uriah Tracey, Taft's Senate Election Cases, p. 3; Foster, I. p. 488.) In Lanman's Case, however, it was held that the Governor of a State cannot, during the recess of the legislature, appoint a senator to fill an expected vacancy (Cl. and Hall [U.S.], 871; Baker, Annot. Const. 7.) It has also been held that the Governor of a State may receive the resignation of a member of the House of Representatives of the United States and cause a new election to be held to fill the vacancy without waiting to be notified of the vacancy by the House. (Mercer's Case, Cl. and Hall [U.S.], 44; Edwards' Case, id. 92; Baker, Annot. Const., p. 6.) No such controversies could arise under the Australian Constitution, under which it is obvious that the State Legislature would have no jurisdiction to choose, or the State Executive to appoint, a senator pro tempore until the actual receipt of a notification of the vacancy from the Federal authorities.

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