Qualifications of senators
The Constitution, sections 16 and 34, prescribe certain qualifications for election to, and membership of, the Senate, but allow the Parliament to alter those qualifications by statute. The current statutory prescription of the qualifications of a senator are contained in the Commonwealth Electoral Act 1918, section 163. To be elected as a member of either House of the Parliament a person must:
- have reached the age of 18 years
- be an Australian citizen
- be either an elector entitled to vote at a House of Representatives election or be a person qualified to become such an elector.
The Constitution, section 44, prescribes certain disqualifications which render a person incapable of being chosen or of sitting as a member of either House. The section is as follows:
- Is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power: or
- Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer: or
- Is an undischarged bankrupt or insolvent: or
- Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
- Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, halfpay, or a pension by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.
The rationale of these disqualifications provisions is that they prevent senators being subject to undue external influence which could prejudice their performance of their duties. A person having an allegiance to a foreign power could be unduly influenced by that power. A person under sentence for an offence is subject to the control of the executive government. An undischarged bankrupt or insolvent is subject to the control of creditors or the courts. A person holding an executive government position could be subject to undue influence by the executive government. The granting of a pension at the discretion of the executive government could obviously be used to buy allegiance of senators. A person having an interest in an agreement with the Commonwealth could similarly be subject to such undue influence, and could also be influenced by personal interest in performing the legislative duties of a senator.
Undoubtedly the most significant of these qualifications is that relating to an office of profit under the Crown. It is designed to ensure that the executive government of the Commonwealth or a state cannot purchase the allegiance of a senator by awarding the senator a government job. This purpose is important, because without the provision a government could award jobs to senators other than ministers and thereby place them in a similar position to ministers as regards supporting the decisions and proposals of the government. The provision is a vital safeguard against bribery of senators. The manner in which the disqualification is expressed, however, gives rise to some questions of interpretation.
Employing its power under sections 16 and 34 of the Constitution, the Parliament has in the Commonwealth Electoral Act prescribed further disqualifications for election to either House. A person may not be elected if the person:
- is a member of a parliament of a state or of the legislature of a territory
- has been convicted within two years of the election of certain offences relating to bribery and undue influence.
The prohibition in section 164 of the Commonwealth Electoral Act on members of state and territory legislatures was, by its legislative history and relevant parliamentary statements, clearly intended to be a prohibition on their election, but is stated to be a bar to their nomination only. Theoretically a person could be elected to the Senate if they were elected to a state or territory legislature after the lodging of their Senate nomination, leaving aside state or territory prohibitions on membership of two legislatures. This situation could have arisen in the context of the Senate and Australian Capital Territory elections of 2001.
There is also nothing in Commonwealth law to prevent the appointment to a casual vacancy in the Senate of a person who is a member of a state or territory legislature.
The disqualification provisions of section 44 of the Constitution have been construed by the High Court, sitting as the Court of Disputed Returns (see below), in a number of judgments.
In relation to the qualification of citizenship, the Court has held that the election of a person who was not an Australian citizen at any material time during the election is void.
Paragraph (i.) of section 44, relating to adherence to a foreign power, has been construed by the Court as relating only to a person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not revoked that acknowledgment. In relation to persons who have dual nationality, the question is to be determined by whether the person has taken reasonable steps to renounce a foreign nationality, and what amounts to the taking of reasonable steps depends on the circumstances of a particular case. British nationality is foreign nationality for this purpose. In 2010, a challenge to the election of Senator Abetz was withdrawn when it became clear that the Senator had taken all necessary steps to renounce his German nationality.
Paragraph (ii.) of section 44, relating to conviction for offences, operates only while a person is under sentence or subject to be sentenced for an offence described by the section, that is an offence punishable (not necessarily actually punished) by imprisonment for one year or longer. A person is under sentence while a sentence which has been imposed has not been completed, and is subject to be sentenced while there is a continuing possibility of a sentence being imposed, for example, where a sentence is suspended as part of a conditional release with a bond. Presumably if a conviction is quashed on appeal the vacancy which was taken to have occurred upon conviction and sentence is then taken not to have occurred. If such a presumed vacancy has been filled the filling of the vacancy would then also be void. Therefore, if a member of either House is convicted and sentenced such as to involve the disqualification, the member should not attend the House and the member’s place should not be filled until any appeal against the conviction is determined.
In paragraph (iii.) of section 44, relating to bankruptcy, the word “undischarged” qualifies both of the words “bankrupt” and “insolvent”, and the paragraph applies only to a person who has been formally declared bankrupt or insolvent and who has not been discharged from that condition.
In relation to paragraph (iv.) of section 44, relating to office of profit under the Crown or pension payable by the Crown, in order to fall within the paragraph an office must be remunerated and must be under the Crown, that is, an office to which appointment is made by the executive government. The paragraph therefore covers persons permanently employed by the executive government. The taking of leave without pay by a person who holds such an office does not alter the character of the office. The exemption of ministers from the prohibition in the paragraph does not cover parliamentary secretaries, who were accordingly not paid any remuneration until an amendment of the Ministers of State Act in 2000 provided for them to be sworn in as ministers, but without that title. Receipt of a pension does not disqualify a person unless the pension is payable during the pleasure of the Crown; a pension payable under the provisions of a statute would not activate the disqualification.
After the general election of 1996, the question was raised whether Senator-elect Jeannie Ferris of South Australia was disqualified from election and as a senator because she had accepted a position on the staff of a parliamentary secretary. It appeared likely that she would be disqualified if the question were determined, because the position in question was clearly an executive government position, a parliamentary secretary being an office-holder of the executive government. In debate in the Senate on the matter, the government argued that the appointment to the position was not validly made, but as she had actually taken up the position and was paid for it for a period, the likelihood was that this would not avoid the disqualification. The argument was also advanced that the disqualification provisions do not apply to a senator-elect, but only to a candidate and to a senator who has commenced a term. It would seem to be a strange result, however, if the safeguard intended to be provided by the disqualification could be defeated by conferring an executive government position on a senator-elect, which could influence the conduct of the senator during an election and after the beginning of the senator’s term. In any case, the writ for the election had not been returned at the time when Senator Ferris took up the position, so that the election was technically still in progress and she was still in the process of being chosen.
The Senate agreed to a motion to refer the matter to the Court of Disputed Returns, but the motion was amended to provide that it would not take effect until after the commencement of Senator Ferris’ term if she were a member of the Senate at that time. The intention of this amendment appeared to be to allow an opportunity for Senator Ferris to resign and to have her place filled as a casual vacancy. The Senate’s resolution did not take effect, because Senator Ferris resigned after the commencement of her term and was not a member of the Senate on the date specified in the resolution. She was then, however, appointed by the South Australian Parliament to the place rendered vacant by her resignation, and she appeared with the other senators returned at the general election to be sworn in when the Senate next met. If she had been disqualified at the time of her election, her resignation and appointment to the consequent vacancy would not seem to cure the defect, because if she were not validly elected there could be no valid resignation and consequent vacancy. This was made clear by the Court of Disputed Returns in Vardon v O’Loghlin (1907) 5 CLR 201 at 208-9. As the Court found in Re Wood and Sue v Hill (see above), if a candidate has not been validly elected the cure is a recount of the ballot papers to determine the candidate who was validly elected to the place in question.
Notice of a motion was given to refer the matter to the Court of Disputed Returns, but the notice was withdrawn, apparently for lack of support. It was then pointed out that an action to test the matter could be brought under section 46 of the Constitution. No further action was taken.
In 1996 the Court of Disputed Returns ordered a new election in a House of Representatives electorate when it came to light that the member elected in the 1996 general election was a member of the Air Force at the time of her election. It is unclear whether she was disqualified on a proper interpretation of the part of the proviso in section 44 relating to forces of the Commonwealth. The question was not argued before the Court, but was conceded by her counsel. It was stated in submissions that members of the forces who had sought election to either House in the past had been transferred to the reserve before nominating, but it is not clear that even this precaution is necessary, and it is unfortunate that the Court did not determine the issue on a full consideration.
In 1974 a senator accepted a position as an ambassador without resigning from the Senate, and there was a dispute about the effect of this on the senator’s place in the Senate. This dispute was unresolved at the time of the simultaneous dissolutions of the two Houses in 1974.
Paragraph (v.) of section 44, relating to pecuniary interest in an agreement with the public service of the Commonwealth, was construed very narrowly by the Court of Disputed Returns in a particular case in 1975. It was held that, in order to fall within the paragraph, an agreement must have currency for a substantial period of time and must be one under which the Crown could conceivably influence the contractor in relation to parliamentary affairs. In 2002 the Senate took under consideration the question of whether Senator Scullion was disqualified because of contracts with government departments and agencies. Independent advice was sought on the matter. The advice indicated that he was not disqualified.
The disqualifications in section 44 render a person incapable of being chosen or of sitting as a member of either House. The disqualifications therefore operate from the time the process of election starts, that process including nomination of candidates.
It has not been explicitly determined whether the disqualifications apply to a senator-elect, but it would be anomalous if they did not, having regard to the purposes of the disqualifications.
If a senator is found to have been disqualified at the time of election, the election of that senator is void. The resulting failure validly to fill a place in the Senate is remedied by a recount of ballots cast in the election to determine the person validly elected. If a senator becomes disqualified after completion of the election process, this creates a casual vacancy which may be filled under section 15 of the Constitution.
There is no obligation on the Australian Electoral Commission to determine whether a person is disqualified at the time of the person’s nomination.
The Constitution provides in section 45 that the place of a member of either House becomes vacant when the member becomes subject to the disqualifications mentioned in section 44. This automatic vacating of a member’s place also operates if the member:
- (ii) Takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors: or
- (iii) Directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State.
The Constitution, section 43, provides that a person may not be elected to, or be a member of, both Houses of the Parliament simultaneously. Because the disqualification prevents a person being chosen as well as being a member of both Houses, this prevents a person nominating for election to both Houses in an election. Multiple nominations are also prohibited by section 165 of the Commonwealth Electoral Act.
The disqualifications contained in section 44 were examined in some detail by the Senate Standing Committee on Constitutional and Legal Affairs in 1981. The Committee found the relevant provisions to be anomalous and out of date and recommended that they be comprehensively changed. This report, however, was written before most of the judgments of the Court of Disputed Returns to which reference has been made, and those judgments have considerably clarified the meaning and application of those provisions.