Mark Latham and Filling NSW Legislative Council Vacancies

In today’s Sydney Morning Herald, Alexandra Smith reports on a plan by One Nation’s NSW Leader Mark Latham to resign from the Legislative Council half way through his current term and contest fresh election to the NSW Legislative Council next March.

This would give Latham a new eight-year term and allow One Nation to nominate a replacement for the four-year balance of Latham’s current term.

Let me quote Smith’s article to explain the plan –

One Nation MP Mark Latham is planning to quit the upper house to run again at the top of the ticket in the March election, in a bid to boost the number of MPs the party has in the Legislative Council.

Latham, who is half-way through his eight-year term, wants to recontest a new position in the upper house in order to “renew his mandate”.

A replacement One Nation candidate would be found to fill his casual vacancy.

One Nation secured two upper house spots at the last election – Latham and retired detective Rod Roberts. However, Latham is eager to increase the party’s representation to at least four MPs.

Latham believes that the party could repeat its 2019 performance in March, particularly if he heads the ticket.

Is this allowed?

The answer is almost certainly yes. Legislative Council members have resigned to contest lower house seats and federal elections in the past, and sometimes been re-appointed if they miss out on election. There seems to be nothing in the Constitution or standing orders that suggest the same rule wouldn’t apply to resigning for a Legislative Council election.

It seems that an MLC elected to an eight-year term can resign after four years to contest election for the alternate Legislative Council term. The member would effectively be elected to two over-lapping positions in the Council created by their two elections, though it would be impossible for one person to hold both positions.

Mr Latham would have to resign before the close of nominations. If elected in March, he could be sworn into a new seat in the Legislative Council and be free to nominate his own replacement at the joint sitting that would follow.

If he were unsuccessful, Mr Latham could be re-appointed to his vacancy after the election. So successful or not, Mr Latham could remain in the Council.

There is probably nothing the NSW Parliament can do to stop the plan. After the election, there would have to be a Joint Sitting of the two houses to elect a replacement, and One Nation is responsible for nominating a replacement without a vote

Yet if a party tried the same tactic for a Senate casual vacancy, a vote would be required to accept the replacement. The Commonwealth Constitution and the standing orders require a vote of approval on the candidate to fill the vacancy. And as the Tasmanian Parliament showed in 1987, a state Parliament can refuse to appoint a replacement.

That’s not an option for Legislative Council vacancies.

NSW Legislative Council Casual Vacancies

When NSW introduced popular elections for the Legislative Council in 1978, a different method was used to fill casual vacancies. The next person on the party’s ticket at the election when the departing member was elected would fill the vacancy. But with MLC’s at the time serving three terms of the lower house, it meant the relevant party ticket could be as much as a decade old. If there were no available candidates on the ticket, then a joint sitting was held.

When the Legislative Council was re-structured in 1991 to serve two lower house terms, a procedure similar to filling Senate casual vacancies by joint sittings was adopted. Any candidate could be nominated as long as they were from the same party as the departing member at the time of their election.

If the pre-1991 rules were still in place, then were Mark Latham to resign, he would have been replaced by whoever was the next available One Nation candidate on the 2019 ballot paper. As the rule stands now, One Nation can choose any candidate who is a member of the party. They do not need to have been a candidate at the relevant election.

One thing the pre-1991 rules did make very difficult was re-appointing a resigned MLC to their own vacancy. The escape hatch of a candidate being able to unsuccessfully contest another election and then be re-appointed to the former vacancy was not available.

In the eight terms of Parliament since the 1991 change, there have been 47 casual vacancies filled, an average of 8 per term or two per year. There have been 168 MLCs elected in that period, quite a turnover of members.

(Note: I’ve used a Wikipedia list as reference for NSW Legislative Council casual vacancies as I was unable to locate an official list. I know of at least one casual vacancy not on the Wikipedia page.)

MLCs Resigning to Contest NSW Lower House Elections

These vacancies can be broken into three categories, the successful, the unsuccessful but re-appointed, and the unsuccessful who departed politics.

The successful were –

• Carmel Tebbutt, Labor, 2005, resigned to successfully contest the Marrickville by-election.
• Sophie Cotsis, Labor, 2016, resigned to successfully contest the Canterbury by-election.
• Lynda Voltz, Labor, 2019, resigned to successfully contest Auburn at the 2019 state election.

The unsuccessful who were re-appointed were –

• Penny Sharpe, Labor, 2015, re-appointed after resigning to unsuccessfully contest Newtown at the 2015 state election.
• Ben Franklin, National, 2019, re-appointed after resigning to unsuccessfully contest Ballina at the 2019 state election.

The one unsuccessful case was Labor’s Steve Whan. He was appointed to the Legislative Council after narrowly losing his seat of Monaro at the 2011 NSW election. He resigned as an MLC to contest Monaro at the 2015 state election. He was unsuccessful and left politics.

Note there have also been a number of MLCs who contested lower house seats at the end of their Legislative Council terms, including Labor’s Luke Foley in 2015 and National Melinda Pavey in 2019.

Resigning to Contest Federal Elections

There are a number of these cases. Labor’s Tony Burke was elected to the Legislative Council in 2003 and resigned to successfully contest Watson at the 2004 Federal elections. (Burke’s casual vacancy is not included on the Wikipedia page I used.)

Greens MLCs Lee Rhiannon (2010), Mehreen Faruqi (2018 for 2019 election) and David Shoebridge (2022) resigned from the Legislative Council and were elected to the Senate.

Greens MLC Cate Faehrmann (2013) resigned but was unsuccessful contesting that year’s Senate election. She was replaced by Mehreen Faruqi, and in 2018 Faehrmann returned by filling Faruqi’s casual vacancy.

The most interesting case is Christian Democrat Fred Nile, who resigned in 2004 to contest that year’s Senate election, was unsuccessful, and was re-appointed to his vacancy. The Carr government chose not to call a joint sitting to fill the vacancy in the period when Nile was absent, allowing Nile to be re-appointed to his vacancy.

The Procedure for Filling Legislative Council Vacancies

The rules on filling casual vacancies are set out in the NSW Constitution and the Standing Orders for joint sittings of the NSW Parliament.

The Governor, on advice of the Premier, sends a message to both houses of parliament calling on them to meet in a joint sitting and fill the place of the departing member.

At the meeting a candidate from the same party as the departing member is nominated. The nominee must be from the party for which the departing member was last elected. A member who resigns after leaving their original party would be replaced by a nominee from the original party.

If as normal there is only one nominee, there is no election and the candidate is declared elected. There is a provision for nominating more than one candidate, but doing so is a waste of everyone’s time as only the party’s official nominee can be sworn in.

This process creates an odd situation. If Mark Latham resigns and is elected to a new term next March, he will be sworn in as an MLC for his new term at the first sitting of the new Legislative Council. There will then be a Joint Sitting to fill the vacancy left by Mark Latham resigning from the seat to which he was elected in 2019. And Mark Latham is allowed to be the nominator of his replacement.

It means there will be two seats in the Legislative Council to which Mark Latham has been elected, the one he holds from 2023, and the second from 2019 to which he has nominated a replacement.

There seems to be nothing in the rules to stop it happening, though it seems to be against the spirit of the law.

And the following example explains why the tactic is against the spirit of the law.

Brian Harradine was elected to represent Tasmania in the Senate for three decades after 1975. Every time he stood he was elected. At alternate elections the Brian Harradine Group nominated candidates who were never successful. Had Harradine adopted the Latham tactic, resigning and contesting every Senate election, there could have been two Harradine Group Senators in every term of the Senate.

If the NSW government and parliament wanted to express displeasure with the tactic, the process of filling Latham’s position could delayed. But in the end they would have to call a joint sitting and accept One Nation’s nominee. A refusal to call a joint sitting could create an interesting constitutional test case.

So the plan seems water tight unless a constitutional lawyer can find some implied provision that prevents it happening.

Differences from Senate Casual vacancies

As with NSW MLCs, Senate casual vacancies must be filled by a nominee from the party of the departing Senator at the time they were originally elected.

The difference in the NSW Parliament’s joint sitting standing orders for a Senate casual vacancy is that even when there is only a single nominee, there must be a vote to approve the appointment. If the joint sitting votes against the nominee, the vacancy is not filled.

This happened once before in Tasmania in 1987 when a joint sitting of the parliament rejected Labor’s nominee to fill a casual vacancy. This did not matter in the end as the Senate was dissolved shortly afterwards for a double dissolution election.

If a joint sitting objects to the person nominated to fill a Senate casual vacancy, it can refuse to appoint them. This would put pressure on the party with the vacancy to nominate a different candidate.

This would be an extreme tactic for a parliament to adopt, and given the nature of party politics, no party or state since 1987 has tried to interfere with a party’s right to nominate their choice of candidate to fill a casual vacancy.

But it does give a state government the ability to flag that it would object to the resign and re-contest tactic being used at a Senate election. And especially by a minor party.

For instance, Pauline Hanson was elected at May’s Senate election to a senate term running through to 2028. Were she to resign and contest the next Senate election in 2025, the Queensland government may suggest a disinclination to fill the vacancy for her current term. (I should stress I am in no way suggesting Ms Hanson would do this.)

But joint sittings to fill NSW Legislative Council vacancies do not have the option of threatening to reject the filling of a casual vacancy.

While Mark Latham’s plan might be against the spirit of the Legislative Council’s staggered terms, it appears to be perfectly legal.