Determination of disqualifications
The Constitution, section 47, provides that, until the Parliament otherwise provides, any question respecting the qualifications of a member of either House and any question of a disputed election to either House shall be determined by the relevant House. This provision reflects the traditional power of a House to determine its own composition (see Chapter 2, Parliamentary Privilege, under Power of the Houses to determine their own constitution).
The Parliament has otherwise provided in the Commonwealth Electoral Act. Under sections 376 to 381 of that Act either House may refer any question concerning the qualifications of its members to the High Court, which is constituted as the Court of Disputed Returns, to hear and determine the question. The Court is required to hear the question in public, and has the power to:
declare that a person was not qualified to be a member of either House
declare that a person was not capable of being chosen or of sitting as a member of either House
declare that there is a vacancy in either House.
The Court may remit questions of fact to a lower court for determination.
Questions relating to the qualifications of Senator Webster in 1975 and Senator Wood in 1988 were referred by the Senate to the Court under these provisions (see the judgments relating to those senators, cited above; for earlier cases see ASP, 6th ed., pp 172-4).
A motion concerning the qualification of a senator takes precedence as Business of the Senate over other business (SO 58).
The Commonwealth Electoral Act, sections 352 to 374, provides that the validity of any election to the Senate may be disputed by a petition addressed to the Court of Disputed Returns within 40 days after the return of the writ. Election is defined to include the appointment of a person to a casual vacancy. The Court must examine the petition in public and has the power to:
declare that any person who was returned as elected was not duly elected
declare any candidate duly elected who was not returned as elected
declare any election absolutely void.
The Court may determine questions involving constitutional qualifications under these provisions (Sue v Hill 1999 163 ALR 648).
The Constitution in section 46 provides a procedure whereby any person can seek a remedy for a member of either House continuing as a member while disqualified. The section provides:
Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.
The Parliament has exercised its legislative power under this section only to the extent of limiting the sums which may be claimed from a disqualified member to $200 for having continued as a member before the day on which the suit was originated and $200 for each day after that day (Common Informers (Parliamentary Disqualifications) Act 1975).
There is nothing to require a senator to be absent from the Senate when the senator’s qualification is under consideration by the Court of Disputed Returns, although a senator who continues to attend in the Senate in such a period may run a risk of a successful suit under section 46 of the Constitution. Senator Webster in 1975 absented himself while the Court considered his case, but Senator Wood in 1988 attended in the Senate and participated in proceedings while his case was before the Court.
The Constitution, section 20, provides for the place of a senator to become vacant automatically if the senator is absent from the Senate without the Senate’s permission for two consecutive months during any session. In the history of the Senate there has been only one occasion on which a senator has lost his seat because of non‑attendance. Senator J. Ferguson, of Queensland, was elected to serve in the Senate from 1 January 1901, and his term of service was for three years. Because of non‑attendance for two consecutive months, his seat became vacant, under section 20, on 6 October 1903.
The presence in the Senate of a senator found not to have been validly elected or to be disqualified does not invalidate the proceedings of the Senate in which the senator participated: Vardon v O’Loghlin 1907 5 CLR 201 at 208, In Re Wood 1988 167 CLR 145 at 162-3.
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