Chapter 2 - Parliamentary Privilege: immunities and powers of the Senate

Power of the Houses to determine their own constitution

Each House of the Parliament has the power to determine its own constitution, in so far as it is not determined by constitutional or statutory law. In Australia, this power, though explicitly recognised in section 47 of the Constitution, is of limited significance because the Constitution and the statutory law provide for the qualification and disqualification of members of the Houses and a method whereby disputed elections may be referred to the High Court (see Chapter 4, Elections for the Senate, under Disputed returns and qualifications and Chapter 6, Senators, under Qualifications of senators).

Before 1987 each House could exercise the power of determining its own constitution by the expulsion of members who were regarded as unfit to remain members. The expulsion of a member did not of itself prevent the re-election of that member, since eligibility for election is determined by law.

The 1984 report of the Joint Select Committee on Parliamentary Privilege recommended that the power of a House to expel its members be abolished. The rationale of this recommendation was that the disqualification of members is covered by the Constitution and by the electoral legislation, and if a member is not disqualified the question of whether the member is otherwise unfit for membership of a House should be left to the electorate. The committee was also influenced by the only instance of the expulsion of a member of a House of the Commonwealth Parliament, that of a member of the House of Representatives in 1920 for allegedly seditious words uttered outside the House. This case had long been regarded as an instance of improper use of the power (see, for example, E. Campbell, Parliamentary Privilege in Australia, MUP, 1966, pp 104-5).

The recommendation, and the consequent provision in section 8 of the 1987 Act, was opposed in the Senate. It was argued that there may well be circumstances in which it is legitimate for a House to expel a member even if the member is not disqualified. It is not difficult to think of possible examples. A member newly elected may, perhaps after a quarrel with the member’s party, embark upon highly disruptive behaviour in the House, such that the House is forced to suspend the member for long periods, perhaps for the bulk of the member’s term. This would mean that a place in the House would be effectively vacated, but the House would be powerless to fill it. Other circumstances may readily be postulated. The Houses, however, denied themselves the protection of expulsion.

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