Bills Digest No. 109 2002-03
Commonwealth Electoral Amendment (Members of Local
Government Bodies) Bill 2002
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Commonwealth Electoral Amendment
(Members of Local Government Bodies) Bill 2002
12 December 2002
House: House of Representatives
Portfolio: Special Minister of State
The purpose of
this brief Bill is to amend the Commonwealth Electoral Act
1918 (the Electoral Act) to ensure local councillors are not
penalised by State or Territory laws as a result of their decision
to stand for federal Parliament. It was argued in the second
reading speech that:
This amendment to the Commonwealth Electoral
Act 1918 is necessary to reinforce the Commonwealth's
authority to legislate exhaustively subject to the Constitution on
qualifications for election to the Commonwealth
The Bill is aimed at ensuring local councillors
do not have to resign their positions in order to be candidates for
As outlined in the Information and Research
Service's Research Note on Candidacy
of Local Councillors for Federal Office, the impetus behind the
Commonwealth Electoral Amendment (Members of Local Government
Bodies) Bill 2002 (hereafter 'the current Bill' or 'this Bill') was
a Queensland law, assented to in May 2001,(2) that
sought to declare vacant the position of any local councillor who
was a candidate for State or Federal elections.
Queensland Local Government Act 1993 was amended to read:
224A Councillor ceases to be councillor
on becoming candidate for an Australian Parliament
A councillor ceases to be a councillor if
(a) under the Electoral Act 1992,
section 88(3), the councillor becomes a candidate for an election
as a member of the Legislative Assembly; or
(b) under the Commonwealth Electoral Act
1918 (Cwlth), section 176, the councillor is declared to be a
candidate for an election.
Government Association of Queensland (LGAQ) was unhappy about
the new law, believing it unfairly discriminated against local
councillors. They successfully challenged the provision relating to
federal candidacy (s. 224A(b)) in the Queensland Supreme Court,
after succeeding in getting the case remitted down from the High
Court.(3) The Commonwealth Government intervened in the
case, arguing that the Queensland provision was
invalid.(4) The Supreme Court agreed. It unanimously
held that this was because it was inconsistent with sections 163,
164 and 327(1) of the Commonwealth Electoral Act. The majority also
held that the State Parliament 'did not have the legislative power
to enact such a law'.(5)
Despite their success in having the Queensland
law struck down, the Commonwealth remains concerned about control
over the qualifications and disqualifications for federal office.
This concern persists because, first, the Queensland Supreme Court
decision does not prevent any other State or Territory from trying
to pass a law similar to that which was enacted in Queensland. This
would leave the Commonwealth, or another party such as a local
government representative body, to have to launch once again a
similar court case to that run against the Queensland
A second, related, reason is that the Queensland
Supreme Court judgement has been called into
question.(6) Critical to the court's decision was the
view that the Queensland law placed a burden on candidates for
federal office sufficient to allow section 224A(b) to 'be
characterised as a law relating to the conduct of Federal
elections'. The response of lawyer and academic Anne Twomey is
It is hard to see how this is so. The Queensland
legislation does not in any way prevent or hinder local councillors
from nominating for election to the Federal Parliament. There is no
additional category of disqualification from the right to nominate.
All the legislation does is vacate the office of the councillor.
This is completely understandable. It is a general principle,
frequently applied, that people who hold high statutory or elective
office must resign from that office before running for a different
elective office. This prevents people from using the mantle of one
office, unfairly, to get elected to another office. It also avoids
any conflict of interest, where a person s campaign may conflict
with his or her duties of office.(7)
These are the kinds of arguments that led, back
in 1902, to the drafting of section
164 of the Commonwealth Electoral Act, which states:
A person who is, at the hour of nomination, a
- the Parliament of a State;
- the Legislative Assembly of the Northern Territory of
- the Legislative Assembly for the Australian Capital
is not capable of being nominated as a Senator
or as a Member of the House of Representatives.
That section thus prevents sitting State or
Territory parliamentarians from becoming federal Senators or
If a State Parliament cannot enact such a law as
section 224A(b), the question is 'why is it that the State
Parliament cannot legislate for the qualification and
disqualification of its local councillors?'(9) One of
the three justices of the Supreme Court, Justice Davies criticised
the Commonwealth's submission that the Queensland law was invalid
because it attempted to deny or alter the Commonwealth's executive
capacity. He said:
s. 224A(b) does no such thing. Its direct effect
and practical operation is plainly only upon councillors of a State
local government. And a legitimate purpose of it may be seen in the
need to ensure that local councillors are not distracted from their
duties as such or placed in a position of conflict with those
duties by standing as a candidate for some other office...
In my opinion [s. 224A(b)] is not invalid as
being beyond the legislative competence of the Queensland
He did however still find the provision invalid
for the other reasons outlined above. It can be seen that the
Queensland Supreme Court decision was by no means uncontroversial,
and followed lines of reasoning that a court in another State (or a
higher court) may choose to disregard. This then may be a second
reason that the Commonwealth still wishes to legislate, through the
Commonwealth Electoral Act, to protect the positions of local
councillors. A third reason may be that the issue might arise
before the High Court, and the Commonwealth may wish to strengthen
its claims, based on the Electoral Act, that a law such as was
enacted in Queensland is invalid.
The current Bill is identical in text (differing
only in name) to a Bill tabled on the last day of sitting prior to
the proroguing of Parliament in 2001. The Bill when it first
appeared was called the Commonwealth Electoral Amendment
(Prevention of Discrimination Against Members of Local Government
Bodies) Bill 2001. Contrary to what was printed on the cover of
versions of that bill, it was in fact not presented and read.
Rather, Senator Robert Hill tabled a draft Bill and with it a
'proposed second reading speech' by Senator Ron
Boswell.(11) This appears to have followed an
unsuccessful attempt by the Government to amend another Bill,
already before the Parliament at the time,(12) that
sought to amend the Electoral Act for purposes unrelated to the
The proposed Bill would create an unusual
situation. On the one hand it seeks to prevent discrimination
against local councillors standing for Parliament. On the other
hand, there has long been uncertainty as to whether section 44(iv)
of the Constitution might in fact prevent local councillors from
being candidates. This issue is canvassed extensively elsewhere,
such as in the House of Representatives Standing Committee on Legal
and Constitutional Affairs' Report on
Aspects of Section 44 of the Australian Constitution, and
the Parliamentary Library's publication, Candidates,
Members and the Constitution.(13) It is
outlined here just briefly.
44 of the Constitution addresses grounds under which a person
may be disqualified from sitting in the Parliament. It reads in
44. Any person who
(iv) 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
shall be incapable of being chosen or of sitting
as a senator or a member of the House of Representatives.
The untested question of Constitutional law is
whether being a local councillor constitutes holding an 'office of
profit', and if so, whether that office can be said to be 'under
the Crown'.(14) The detailed legal arguments need not be
canvassed here. The point is that for some years political parties
have tended to consider it advisable for local councillors to
resign before contesting a federal election, in case they could be
disqualified under 44 (iv). Senator Nick Minchin illustrated this
approach in his evidence to the Joint Standing Committee on
Electoral Matters in 1997:
At one stage, after all our candidates had bulk
nominated, we received some advice that any connection with local
government might well constitute an office of profit...
I think eight of our 12 candidates happened to
be local councillors and I had to get all of them to withdraw their
nominations. Fortunately, we received this advice and acted on it
before the closing of nominations. But we had to get them all to
withdraw, all to resign from their council positions and then all
to renominate. As you can imagine, when you are running an election
campaign that is the sort of headache and nightmare you do not
need...That was a bruising and memorable
Indeed, the Australian Electoral Commission
cautions prospective candidates:
such positions as councillors and employees of
local government, and members of the governing bodies and the
employees of statutory authorities, could be at risk of
disqualification, depending on their particular
This Bill thus seeks to protect the candidacy of
those whom, in other contexts, are being advised that they may be
constitutionally unable to take office. This certainly explains
paragraph 8 of the Explanatory Memorandum for the Bill, which says
The amendment to the Electoral Act should in no
way be considered to remove or alter any existing Constitutional
barriers to qualifying for standing for election. The onus is on
all intending candidates and specifically, members of a local
government body, to ensure that they Constitutionally qualify for
This Bill thus attempts to address one aspect of
an issue that really awaits a long overdue decision by the
Parliament to address problems with section 44 of the Constitution.
These issues were identified in 1981 by the Senate Standing
Committee on Constitutional Affairs and again by the House of
Representatives Standing Committee on Legal and Constitutional
Affairs. They were recognised by the Joint Standing Committee on
Electoral Matters in 1996. That same year, all parties in the
Senate supported a motion by Greens Senator Bob Brown calling for
the government to propose a Constitutional amendment that would
seek to implement long-needed changes to section 44.(17)
Senator Bob Brown also sought to give effect to the House of
Representatives Committee's recommendations through a Private
Senators' Bill in 1998.(18)
As has been written elsewhere,(19) an
important question to ask could be not only whether the currently
proposed Electoral Amendment Bill should pass, but also when is the
Parliament going to initiate a referendum to reform section 44 of
There are many arguments for and against the
current Bill. They are briefly summarised before being set out in
more detail and considered in the context of a very similar debate
that took place in 1902.
- The Commonwealth should have exclusive control over anything to
do with candidacy for federal office, and this Bill may help
guarantee this by preventing any doubts emerging regarding States'
ability to prevent local councillors from seeking federal
- Electoral laws should maximise the pool of talent from which
future MPs are drawn and protect that diversity of choice.
- Local council experience gives prospective candidates a
legitimate track record on which to stand for other office. This
should not be treated as an unfair advantage, but as a perfectly
valid reason to seek election to parliament. Laws that interfere
with this should not be tolerated, and the current Bill helps
ensure they are not tolerated.
- If there are concerns about abuse of the resources of local
government office, regulation should be aimed at protecting against
that abuse, not indiscriminately restricting the ability of all
councillors to become candidates.
- Voters should be trusted to decide whether it was right for a
local councillor to stand for office in another tier of government.
If the voters think it is OK, why should the parliament prevent it?
The current Bill will help ensure voters have that choice.
- The current Bill would not provide local councillors seeking
federal office with any legal protection not already afforded by
section 327(1) of the Electoral Act.
- The current Bill would explicitly treat local councillors very
differently from State MPs. Section 164 of the Electoral Act
prevents State MPs from standing for federal office. The
Commonwealth could be accused of inconsistency if it retained this
ban while simultaneously passing the current Bill, designed to
ensure local councillors can be candidates. Why should these two
categories of elected politician be treated so differently under
federal electoral law?
- Taken in conjunction with section 44 of the Constitution, the
Bill will confuse prospective candidates by sending contradictory
signals about whether local councillors are eligible to stand for
- Local councillors should not be encouraged to see their offices
as merely stepping-stones to 'higher' ambitions.
- There is potential for conflict of interest to arise between a
person's role as a councillor, and their motivations as a candidate
for (or holder of) federal office. Particularly in light of the
Queensland Supreme Court decision, the Commonwealth needs to take
responsibility for preventing conflicts of interest arising for
elected officials, and the current Bill is a move in the wrong
direction on this point.
- Allowing local councillors to run for federal office encourages
them to do so, and in doing so increases the number and cost to
taxpayers of local government by-elections.
- Both local government and federal government roles require a
lot of work. It is simply not practical for anyone to try and do
both, so the Commonwealth should not be passing laws that might
encourage the perception that such a thing should be attempted.
(This might lead to an argument not to oppose the Bill totally, but
to amend it so that it prevents holding offices at both levels
simultaneously, while still seeking to protect local government
office-holders during candidacy).
This Bill is poised to celebrate the centenary
of debate on a related federal law: the electoral law preventing
State MPs from being candidates for federal election. Debate on
that issue spanned the period March to September 1902. The
restriction that was debated at that time can currently be found in
section 164 of the Electoral Act set out above.
This restriction (in a slightly different form)
was introduced during debate on the original Commonwealth Electoral
Bill in 1902. It had also been a regular topic during the
Constitutional Conventions of the 1890s, which had ultimately
decided that such a disqualification should not be put in
place.(20) The debate in 1902 was vigorous, and in fact
there was no disqualifying provision in the Bill as it was first
read.(21) It appeared to be introduced by the government
some months later as an amendment, largely in retaliation against
some States that had introduced provisions preventing federal MPs
from being candidates in State elections.(22) Many of
the points likely to emerge during debate of the current Bill were
canvassed in the 1902 debates, and in the Queensland parliamentary
debates in 2001, when section 224A(b) of the Queensland Local
Government Act 1993 was originally passed into law.
Many federal MPs have served in local
government. In fact, as of January 2003, each side of politics had
20 MPs who had served in local government (amongst coalition MPs,
the breakdown was 16 Liberal and 4 National). Only one MP outside
the major parties Lyn Allison of the Australian Democrats has been
a councillor. Thus nearly one in five federal MPs has been an
elected councillor at some time. Many current MPs have served in
local government immediately prior to their election to federal
Parliament; a few have served in the two offices
concurrently.(23) Clearly local government experience is
an important part of the background of federal politicians.
The need to encourage talented candidates to
make themselves available for higher office was a reason why some
federal MPs objected to the restrictions on State MPs implemented
in 1902, and is likely to be a reason to support the current Bill.
There were certainly some heated objections to the restriction
proposed in 1902. At that time Senator Higgs (Labor, Queensland)
remarked that he had:
never heard a more illiberal proposition made.
It is almost dog-in-the-manager [sic] policy for us to debar the
members of a State Parliament from contesting a seat in the Senate
or the House of Representatives. It is not in keeping with what we
understand to be the dignity of the members of this Parliament.
Because the members of a State Parliament have seen their way to
debar members of the Commonwealth Parliament from contesting a seat
in the State Parliament that is no reason why we should descend to
their level The appearance of such candidates [State MPs] in the
field will give a wider choice to the electors. If we carry this
amendment, their area of choice will be restricted, because very
many of our best men, after having been to the expense of
contesting a State election, will not be prepared to risk losing
their seats in the State Parliament, and undertaking the expense of
a Federal contest The State Parliament is a very good school for
the Federal Parliament, just as a municipal body is a very good
school for the State Parliament (24)
These remarks were echoed in debate in the
Queensland Parliament in 2001, with Mrs Pratt (Ind.) saying that 'a
council is an exceptional training ground for any member of
parliament'(25) and Mr Bell (Ind.) opposing the
restrictions because 'people should be positively encouraged to
take their grounding in local government as a legitimate way of
receiving appropriate training for higher levels of service in the
state and federal parliaments'.(26)
In the 1902 debate, Senator O'Connor
(Protectionist, NSW) argued that, had the founders of the
Constitution thought a restriction on candidacy for Federal office
desirable, it would have been included in the existing
disqualification provisions of the Constitution. Its absence, he
reasoned, indicated it was intended that State office holders
should be able to be candidates. 'We should be doing a wrong to
ourselves, and a wrong to the people of Australia', he concluded,
'if we restricted or interfered in any way with their right of
choosing their representatives.'(27)
There is another side, however, to arguments
about encouraging representatives to move between levels of
government. It may not be desirable for local councillors to become
too focussed on future opportunities. The result could be that
councillors 'did not care about representing [voters] at council
level if they could go further and viewed their election to council
purely as a stepping stone to higher
self-promotion'.(28) The law would need to strike a
balance, encouraging the transfer of skills without encouraging
people to fail to take their local government duties seriously.
Finally, it is possible to distinguish between
encouraging elected representatives to move between tiers of
government and giving that encouragement by actually allowing them
to hold one office while seeking another. One of the supporters of
the Queensland restrictions insisted 'There is no argument that
local government representation has provided useful professional
development for many elected representatives at the state and
federal levels'.(29) Requiring councillors to vacate
office if seeking election to another tier of government was not
aimed at discouraging them from taking that step, but merely
ensuring that they were focussed on one task rather than two,
potentially conflicting, tasks. This issue is further addressed
later in this Bills Digest.
Much of the debate about the 1902 provisions
centred on whether holding State office gave candidates an unfair
advantage (as Senator Lt-Col Neild (Free Trade, NSW) maintained),
or was proof of a candidate's worth (as Senator Playford
(Protectionist, South Australia) insisted). Senator Styles
(Protectionist, Victoria) favoured the restriction. He
The Premier of a State and all his colleagues
could contest a seat in the Federal Parliament with the advantage
of all their prestige and influence. They would almost be certain
to secure seats as against abler men who held no public
He thought failure to introduce the restriction
would, as a result, actually make the fields of candidates smaller
rather than larger: 'I apprehend that outside parliamentary life
there are hundreds of able men who would see at once that they
would have no show with the State Premier and his colleagues in the
field'. Thus they would not stand for office.
There was also concern at that time that State
MPs would extract a substantial and unfair advantage from their
free rail travel passes. It should be recalled that at that time,
all travel was by land, the electorates were physically larger than
in the present day, and the railways more extensive. In addition,
many candidates were probably poorer than today, and there was no
public funding of elections. In this environment, being able to
travel at no cost from town to town was a valuable campaign
resource. It hardly seemed fair that some candidates would have it
while others did not.
During debate in Queensland, it was similarly
asked 'why should ratepayers pay the salary of councillors who are
not focussed on working for them?'(31) Supporters of the
restriction also were concerned about 'the councillors from the
various local authorities who have abused their position and have
effectively conducted ratepayer funded campaigns for election to
higher office'(32) and people campaigning 'in the
council car with the council phone'.(33)
No one would suggest that abuse of office is
something to be endorsed. However supporters of the current Bill
will point out, as did Mr Seeney (National) in the Queensland
debates, that failure to protect the right of local councillors to
nobble the field and make it difficult for
people who have established a leadership profile in a community
and, therefore, would be considered to be frontrunners in the group
seen as the best candidates for an election.(34)
That is, advantages enjoyed by a local
councillor in the campaign may not be the product of their abuse of
council resources, but because of their profile and achievements
while in local office. Supporters of the current Bill will argue
that the regulatory focus should be on protecting against abuse of
the resources of office, rather than implementing a
blanket ban against holders of office.
One of the main causes of concern about
office-bearers in one jurisdiction being candidates for, or
office-bearers in, another level of government is the potential for
conflict of interest.
During debate on Senator Brown's Constitutional
Alteration (Right to Stand for Parliament Qualification of Members
and Candidates) Bill 1998 (see also discussion below), Senator
Ellison (Liberal, Western Australia) asked:
is it important to preserve the basic principle
embodied in that provision, that is, that a person should not hold
two offices which may give rise to a conflict of duty or the
appearance of such a conflict?(35)
If participants in debate over the current Bill
are concerned about this issue, they might oppose the kind of
guarantee that this Bill seeks to provide. Supporters of the
approach taken in this Bill will need to address the question of
why they see no conflict of duty, or appearance of such, between
being a local councillor and seeking federal office.
Far from passing the current Bill, its critics
might desire to enact a law to prevent local government
councillor candidacy. Why? In its decision, the Queensland Supreme
Court considered that it was beyond the legislative competence of a
State to pass legislation that vacated the office of a local
councillor who became a candidate for, or was elected to, federal
office.(36) Let us assume for the moment, despite the
concerns of Twomey and others, that the case proves to be sound and
enduring law. This means that States now cannot prevent people from
holding federal office and local government positions
simultaneously. Yet federal parliament makes numerous decisions
that affect local councils, and provides 19 per cent of their
funding.(37) There is, as participants in the 1902
federal and 2001 Queensland debates have outlined, a case to be
made for this situation to be remedied, in order to prevent
conflicts of interest. The Queensland Supreme Court decision
appears to leave responsibility for this in the hands of the
Commonwealth, even though local councils are creatures of State
law. It may be that, far from supporting the present Bill, there is
thus now a case for the Commonwealth to act to prevent conflict of
interest situations arising, by at the very least requiring that a
person does not simultaneously hold offices in two tiers of
Incidentally, the Queensland Supreme Court
decision raises some broader issues in this area that the
Commonwealth may now need to address. If the principles enunciated
in that decision are applied elsewhere, then numerous other state
prohibitions on certain officials from standing for parliament may
also be invalid. These include positions such as ombudsmen and
directors of public prosecutions.(38)
During the debate in Queensland, Mr Bell (Ind.)
made an interesting point about conflict of interest. His point
concerned the claim that there would be a conflict of interest
during candidacy (not to be confused with conflicts arising from
holding two offices simultaneously), as a local councillor's
actions could be affected by seeking election elsewhere. He
Quite honestly, the conflict of interest, if it
were to exist at all, would not be abridged or removed by the fact
that someone resigns at the point of nomination. That conflict
surely would have existed long before that if it were to occur at
Bell rightly recognised that people generally do
not become candidates for federal office out of the blue. It would
be a move planned months, and perhaps years, in advance. Local
councillors planning such a move would know their intentions long
before the day of nomination, which was the time at which the
Queensland law would come into play. Bell's point was that a law
that declared the councillor's position vacant when they officially
became an election candidate would do little to address potential
conflicts of interest arising during the preceding months, as the
candidate perhaps looked for opportunities to boost their chances
of a future political career elsewhere.
Preventing this kind of conflict of interest
situation cannot be considered to be a significant factor behind
Queensland's restriction on local councillors. A corollary to this
argument could be that supporting the current Bill does not mean
one is not concerned about conflict of interest issues. Rather, it
recognises that they cannot be eliminated through the kind of law
Queensland sought to enforce. Conflict of interest issues, the
argument continues, should be confronted, but will not be addressed
by stopping a person from being a councillor just during an actual
It might be argued that the Commonwealth's Bill
will ensure that costly council by-elections continue to take
place, as local government representatives continue to stand for
federal office (triggering by-elections because, if elected,
councillors usually resign their local office). Certainly,
supporters of the Queensland law claimed it would save ratepayers
money because 'it will save by-election money'.(40) Yet
this must mean that those supporters believed there would be fewer
by-elections because fewer people would move from the local sphere
to another level of government. In other words, supporters of the
Queensland law (and thus opponents of the current Bill) believed
the attempted Queensland restrictions would have the effect of
discouraging local councillors from standing for higher office. Yet
this contradicts the claims of their fellow advocates for the new
regime, who said the restrictions were not meant as a
discouragement, but merely to avoid conflicts of interest etc.
In fact, if the aim was genuinely to save money,
then one would adopt the approach advocated by Mr Bell, of
requiring a councillor to stand down from their office while a
candidate, and surrender office only if elected.(41)
This however is not the approach that the Commonwealth's Bill seeks
Opponents of the current Bill may put forward
the pragmatic argument that people simply cannot do both jobs at
once. Both local government work and being a federal MP are
demanding roles. Regardless of any in-principle objections, it
could be argued that no one should hold both offices
concurrently because no one could do both jobs
concurrently. It might be considered that the law should simply
reflect this reality. This argument relates more to holding office
than to candidacy, but it remains relevant to the current Bill.
They may also say that protecting and proclaiming the value and
professionalism of service in any tier of government would be best
achieved by ensuring that it is not possible to hold two positions,
at two different levels of government, at once. The current Bill is
oriented instead toward ensuring that holding office simultaneously
It can be argued that it should be left to the
voters to decide whether they want a local councillor in their area
to take up federal office. If the electorate thinks a currently
serving local councillor would best serve them in another forum,
should they not be free to exercise that choice? In 1902, the
opponents of section 164 of the Electoral Act repeatedly made this
point, saying State MPs should be free to stand. Even earlier, in
the Constitutional Conventions, Mr Higgins said 'I am perfectly
prepared to leave it to the electors of the State Parliament to say
whether they will trust [federal] affairs in the hands of those who
occupy seats there'.(42) Sir Edward Braddon concurred:
'we should leave it to the judgment of the people of the States,
who, after all, are the arbiters in this case, to say what should
be done'.(43) The same may be said for local government:
let the voters judge whether a councillor has done the wrong thing
in seeking federal office while still holding their municipal
office. Thus the current Bill should be supported, ensuring that
this judgement is left in the hands of voters, rather than being
usurped by State governments.
Leaving aside the pros and cons of allowing the
candidacy of local councillors, there is a more fundamental
question about the consistency of treatment of elected office
holders. It could be argued that it makes no sense to create
additional protection for local councillors while not at the same
time moving to abolish the section 164 prohibition on the candidacy
of State MPs. Opponents of the current Bill will be asking why
local councillors deserve special treatment not available to State
MPs? The Federal Parliament has benefited from the skills of local
councillors and State MPs. Yet the latter are banned from being
candidates for federal office, while the current Bill proposes to
protect the ability of the former to stand. As was outlined
earlier, the ban on State MPs very nearly did not become federal
law a century ago, precisely because people could see advantages in
having State MPs standing for federal office. Many even thought the
offices should be able to be held concurrently. The current Bill
seems to apply all those arguments to local councillors, while
ignoring the implications for State MPs.
Supporters of the Bill may argue that the
Constitutional recognition of the States puts their representatives
in a different position. This argument may have some weight when
dealing with the question of holding both jobs simultaneously. It
is less clear, however, how it is relevant to the question of
candidacy. There is a case to be made for treating State
and local representatives in the same way while they are candidates
for federal office. In this case, amending section 327 (as proposed
by the current Bill) could only be part of the solution; section
164 would have to be modified as well.
During the 1902 debates, Senator O'Keefe (Labor,
Tasmania) sought to distinguish candidacy from incumbency. He
It is not reasonable that a man should be able
to occupy at the same time one seat in the Federal Parliament and
another in the State Parliament, but we should stop at that, and
not show the selfish spirit which it appears some State Parliaments
O'Keefe wanted to prevent people simultaneously
holding two elected offices. However, his view was that a
distinction should be made between candidacy for office and
actually taking one's place in Parliament. He did not want to
prevent a person being a federal candidate while also
being a State MP. This distinction exists, ironically enough, in
current Queensland law. The
Parliament of Queensland Act 2001 section 68 states in
(1) Any of the following persons who is elected
as a member can not take his or her seat until the person stops
holding the membership or appointment mentioned in relation to the
(a) member of the Commonwealth Parliament or of
a legislature of another State;
In section 72 it also states:
(1) A member s seat in the Assembly becomes
vacant if any of the following happens
(e) the member becomes a member of the
Commonwealth Parliament or of a legislature of another State;
Queensland has thus implemented the distinction
between candidacy and incumbency that Senator O'Keefe
unsuccessfully suggested for the federal legislation back in 1902.
It might be possible, through amendments, to consider making such a
distinction in the current Bill.
Up to this point, this Bills Digest has accepted
the legal premise of the Bill and outlined the issues for debate.
There are however questions to be considered about the Bill's legal
effect, regardless of one's views about the underlying question of
policy. It is worth recalling that the current Bill seeks to amend
the provisions in the existing Electoral Act concerning political
327). The current text of section 327 reads:
Interference with political liberty
(1) A person shall not hinder or interfere with
the free exercise or performance, by any other person, of any
political right or duty that is relevant to an election under this
Penalty: $1,000 or imprisonment for 6 months, or
(2) A person must not discriminate against
another person on the ground of the making by the other person of a
donation to a political party, to a State branch or a division of a
State branch of a political party, to a candidate in an election or
by-election or to a group:
(a) by denying him or her access to membership
of any trade union, club or other body;
(b) by not allowing him or her to work or to
continue to work;
(c) by subjecting him or her to any form of
intimidation or coercion;
(d) by subjecting him or her to any other
Penalty: (a) if the offender is a natural person
$5,000 or imprisonment for 2 years, or both; or (b) if the offender
is a body corporate $20,000.
If we consider the legal issues that were argued
in relation to subsection 327(1) during the Queensland Supreme
Court case, the approach of the current Bill may be called into
One of the points successfully argued in the
Queensland Supreme Court was that the Queensland law was invalid
because it was inconsistent with subsection 327(1) of the
Commonwealth Electoral Act. On this all the judges
agreed.(45) Let us begin by accepting the opinion of the
Supreme Court on this point. In its decision, the court unanimously
agreed that section 327(1):
indicates that the field of operation [of the
Electoral Act] extends to the prevention of any
interference(46) with a right under the Constitution and
the Act to stand for election as such.
The legal question, therefore, was whether the
Queensland law interfered with this field of operation. The Court
then concluded, contrary to the arguments made by the Queensland
Government, that section 224A(b) of the Local Government Act did
seek to enter the field of operation of section 327(1) of the
Commonwealth Electoral Act, and to detract from its
operation.(47) The Queensland law was therefore invalid.
Now, if that is the case, the current Bill may be unnecessary
because the law is already adequate to achieve the Commonwealth's
goals. The Bill would create no protection not already afforded by
the scope of 327(1). The current Bill would seem to be of relevance
only if the reasoning of the Queensland Supreme Court were to be in
some way overturned in a higher court, or disregarded by another
jurisdiction's Supreme Court.
A key question then is to understand the logical
consequences of setting aside the reasoning of the Queensland
If one were to disagree with the argument of the
Queensland Supreme Court, it would be for the reasons outlined by
the State of Queensland,(48) which considered that the
State law was nothing to do with federal office, but was about
qualifications to be in local government. Yet in this case,
amending section 327 in the manner proposed by the current Bill may
still be no help. This is because rejecting the Queensland Supreme
Court's arguments regarding the scope of subsection 327(1)
necessarily implies accepting that the Queensland law is
not concerned with federal electoral matters. That is, the
Queensland law should have been considered to be a law regulating
qualifications for Queensland local government office. But if it is
a law concerning local government, then it becomes unclear on what
basis the Commonwealth's legislation would lie. Local government is
a creature of State government: it is not a federal matter. If the
Queensland law is considered to be about qualifications and
disqualifications for holding a Queensland local government
position, what grounds has the Commonwealth to interfere in this
matter? Thus, if one were to reject the Queensland Supreme
Court's arguments, then amending section 327 of the Electoral Act
in the manner proposed by the current Bill might still not
fulfil its objective, because the amendment would not be relevant
to the qualifications for local government office.
It might be said that the point of the Bill is
to give greater clarity, particularly to prospective candidates and
State governments, about their legal rights and obligations under
the Commonwealth's Electoral Act. That is, the new clause in a
sense codifies aspects of the Supreme Court judgement in the key
location to which people turn when they are considering electoral
matters: the Electoral Act. This however could be seen to be a weak
reason to enact legislative change. It also could send a confusing,
rather than clarifying, signal, contradicting the current approach
of the Electoral Commission, which warns candidates to be careful
not to fall foul of section 44(iv) of the Constitution concerning
offices of profit under the Crown.
There is a related policy question about why the
government has not mentioned the simultaneous holding of
local and federal office in its proposed new section 327(3). It
only mentions nomination and candidature. Is this because the
federal government is undecided about whether people should be able
to hold such offices in parallel? Is it signalling to the States
(and perhaps the courts) that it thinks a State law preventing such
dual incumbency would be legally acceptable, even though State laws
regulating candidacy are not? Or is it concerned that extending its
proposed Bill to incumbency would attract a dispute that might
finally lead to the High Court ruling on whether elected local
government positions are offices of profit under the Crown? It
would be interesting to get some clarification of this issue.
Finally, there is also a question concerning the
effect of seeking to nullify a State law to the extent to which
'the law discriminates against a member of a local
government body' (emphasis added). This is the question of whether
declaring a council position to be vacated because a councillor has
nominated for federal election could in fact be said to be
'discrimination' against them. It is possible to envisage that a
court would consider that causing a councillor's office to be
vacated was not discrimination, because it was (again, as
Queensland argued) a matter of disqualifications for local
government office that the State can legitimately control. It might
also turn out that any disputes under the clause contained in the
current Bill could turn on the question of how the State law was
constructed. Take for example a State law containing
conflict-of-interest provisions that prevented all sorts of
judicial and elected officers (such as judicial positions and
ombudsmen as well as local councillors) from simultaneously seeking
other elected office. Would this mean that including local
councillors in such a list would not violate the proposed new
section 327(3), because it was not 'discriminatory' (on the grounds
that the restrictive provisions applied to a whole class of persons
These are just some of the complex legal and
policy questions the Bill as currently formulated raises.
There was no debate in the Senate on the Bill
that was tabled by Senator Hill at the end of the last Parliament
in late 2001, so it is not clear what position other parties or
independents might take on this proposal. Senator Boswell did
however issue a media release in which he stated that:
The Democrats agreed to this amendment [meaning
the content of the tabled Bill], however, Federal Labor
filibustered in the Senate and did not allow the debate to
At this stage, therefore, it seems possible that
the ALP will oppose the Bill, while the Democrats may support it.
The Greens have been advocating reform in this area for some time.
Their focus has been on section 44 of the Constitution generally,
rather than any particular issue such as the candidacy of local
councillors. In 1998, Senator Brown (Greens, Tasmania) introduced
Constitutional Alteration (Right to Stand for Parliament
Qualification of members and Candidates) Bill 1998. In his
second reading speech, he remarked on the restrictions caused by
the 'office of profit' provisions of s. 44 (iv):
This situation is discriminatory, and it
deprives the federal parliament of a huge pool of talented
potential politicians, including every public servant. At every
recent election it has caused trouble and expense as someone
unwittingly falls foul of the constitution.(50)
These views would seem to suggest that the
Greens might favourably view a Bill that sought to preserve the
ability of as wide a range as possible of people to stand for
The proposed new subsection as it is currently
drafted would appear to prevent discrimination against a candidate
in a federal election, but not to prevent such discrimination
against a person nominated for, or declared to fill a casual Senate
vacancy, unless they had been a candidate in a previous election.
This is because the current Bill prevents discrimination only
against candidates in an election, whereas the
procedure for filling a casual vacancy is not an electoral
Item 1 of Schedule 1 amends
section 327 of the Commonwealth Electoral Act, which is concerned
with the protection of political liberties. Item 1 prevents a State
or Territory law from discriminating against a member of a local
government body because they stand, or are declared as a candidate,
for federal Parliament.
This tiny Bill has opened up some large
- How should State and local politicians be treated as candidates
for federal office, and why should they be treated
- Who is going to regulate conflict of interest issues between
the federal and local spheres of government, and when and how will
they go about it?
- If local councillors are elected to Commonwealth Parliament,
are they or are they not at risk of disqualification owing to
holding an office of profit under the Crown?
- House of Representatives Debates, 12 December 2002, p.
Local Government and Other Legislation Amendment Act 2001
- LGAQ (Inc) v State of Qld, 
QCA 517; LGAQ (Inc) v State of Qld, 
HCA 75; Stephen Fynes-Clinton, 'Riding the legal
merry-go-round', Council Leader, vol. 27, no. 6, 2001-02,
pp. 20 3.
- Daryl Williams, Queensland
Local Government Case, Media Release, 3 October 2001.
- Anne Twomey,
'The limitation of State legislative power', Constitutional
Law and Policy Review, vol. 4, no. 1, 2002, p. 18.
- Twomey, op. cit., p. 19.
- This ban was to be found in s. 96 of the Commonwealth
Electoral Act 1902, and was included in s. 70 of the Electoral
Act when first consolidated in 1918.
- Twomey, p. 18.
-  QCA 517 at: 14 15.
- Senator Robert Hill, Senate Debates, 27 September
2001, p. 28224.
- The Commonwealth Electoral Amendment Bill 2001. A
Supplementary Explanatory Memorandum was released in connection
with the proposed additional Schedule for the Commonwealth
Electoral Amendment Bill 2001, but the additional schedule never
made it into that Bill.
- House of Representatives Standing Committee on Legal and
Constitutional Affairs, Aspects of Section 44 of the Australian
Constitution, July 1997, Canberra.
- The parties to the Queensland Supreme Court case did not seek
to argue that local councillors held an 'office of profit under the
Crown', so this question remains unaddressed by the courts.
- Cited in House of Representatives Standing Committee on Legal
and Constitutional Affairs, Aspects of Section 44 of the
Australian Constitution, July 1997, Canberra, p. 67.
- Australian Electoral Commission, 'Constitutional
Disqualifications Section 44 of the Constitution',
Electoral Backgrounder No. 13, October 2001.
- Senate Debates, 29 October 1996, p. 4659.
Constitution Alteration (Right to Stand for Parliament
Qualification of Members and Candidates) Bill 1998.
- Ian Holland, Candidacy
of Local Councillors for Federal Office, Research Note
No. 21, 2002, Parliamentary Library, Canberra, p. 2.
- See Convention Debates, Sydney, 1891, pp. 877 81;
Adelaide, 1897, pp. 1181 2; Sydney, 1897, pp. 996 1011. The
decision to omit such a disqualification is described in Quick and
Garran's Annotated Constitution of the Australian
Commonwealth, 1901, p. 488, though their account contains an
error. They state that Sir Edward Braddon moved the insertion of a
disqualification clause at the 1897 Convention in Adelaide. In fact
Dr Cockburn moved it, and Braddon spoke against it.
- Senate Debates, 24 January 1902. The provision (which
became clause 98a of the Bill) was introduced in the House of
Representatives after the original version of the Bill passed the
Senate, 21 March 1902. The amendment, to which the Senate
ultimately acquiesced, had originally failed in the Senate, when
debated in committee on 12 March 1902. It also failed, the second
time around, by 10 votes to 11. Senate Debates, 21 August
1902, p. 15267. When the House of Representatives insisted upon the
amendment (House of Representatives Debates, 24 September
1902, p. 16045), the Senate only acquiesced by a single vote
(Senate Debates, 25 September 1902, p. 16100). There was
thus very nearly no law preventing State MPs from being candidates
for federal office.
- The government minister responsible for the Bill, Sir William
Lyne, quoted the relevant legislative provisions from NSW, South
Australia and Victoria, and indicated that 'The Acts of other
States contain similar provisions'. House of Representatives
Debates, 30 July 1902, pp. 14719 20.
- MPs who have served concurrently are: the Hon. Paul Calvert
(Liberal, Tasmania), elected to the Senate for a term deemed to
have begun in July 1987 and Councillor in the Municipality of
Clarence until 1988; the Hon Roger Price (Labor, Chifley), elected
to the House of Representatives in 1984 and Alderman in Blacktown
City Council until 1987; and Julian McGauran (National Party,
Victoria), elected to the Senate for a term deemed to have begun in
July 1987 and Councillor in Melbourne City Council until 1988.
These dates are based on the 2002 Parliamentary Handbook entries
for the Senators and members. It is possible that a few other MPs,
for whom complete data is not available, have served concurrently.
- Senator Higgs (ALP), Senate Debates, 12 March 1902, p.
- Mrs Pratt (Ind.), Queensland Parliamentary Debates, 17
May 2001, p. 1045.
- Mr Bell (Ind.), Queensland Parliamentary Debates, 17
May 2001, p. 1055.
- Senator O'Connor (Protectionist), Senate Debates, 12
March 1902, p. 10875.
- Mrs Pratt (Ind.), Queensland Parliamentary Debates, 17
May 2001, p. 1045.
- Mr English (ALP), Queensland Parliamentary Debates, 17
May 2001, p. 1045.
- Senate Debates, 12 March 1902, p. 10875.
- Mr English (ALP), Queensland Parliamentary Debates, 17
May 2001, p. 1045.
- Mr Lawlor (ALP), Queensland Parliamentary Debates, 17
May 2001, p. 1050.
- Ms Stone (ALP), Queensland Parliamentary Debates, 17
May 2001, p. 1055.
- Mr Seeney (National), Queensland Parliamentary
Debates, 17 May 2001, p. 1047.
- Senate Debates, 3 December 1998, p. 1239.
- The Court in particular cited the Smith v Oldham case:
(1912) 15 CLR 355. Cited by McMurdo P,  QCA 517 at para. 9.
- Commonwealth Grants Commission, Review of the Operation of
the Local Government (Financial Assistance) Act 1995,
Canberra, June 2001, p. 9.
- Twomey, op. cit., p. 19. Holders of most of these offices would
probably nevertheless be unable to hold office because of the
'office of profit' provision of the constitution. Nevertheless,
this fact itself merely serves to highlight the apparent
contradiction between the way the current Bill seeks to treat
councillors, and the way many other public offices are treated when
it comes to candidacy for elected positions.
- Mr Bell (Ind.), Queensland Parliamentary Debates, 17
May 2001, p. 1054.
- Mrs Carryn Sullivan (ALP), Queensland Parliamentary
Debates, 17 May 2001, p. 1056.
- Mr Bell (Ind.), Queensland Parliamentary Debates, 17
May 2001, p. 1054.
- Constitutional Convention Debates, Adelaide, 22 April
1897, p. 1181.
- Constitutional Convention Debates, Adelaide, 22 April
1897, p. 1182.
- Senate Debates, 12 March 1902, p. 10876. He reiterated
the argument when the Bill was returned from the House of
Representatives with a list of amendments: Senate Debates,
21 August 1902, p. 15257.
- Justice McMurdo,  QCA 517 at para. 2; Justice Davies at
para 63; Justice Williams at para 81.
- This prevention of interference extends to prevention of
interference by a body politic: see the Acts Interpretation Act
1901, s. 22. This specific point was not however, argued: see
Justice Davies,  QCA 517 at para. 31.
- Justice Davies,  QCA 517 at para. 61.
- As well as by Twomey and Justice Davies in his dissenting
judgement on this particular point.
- Senator Ron Boswell, Commonwealth
Intervenes in Local Government Court Action, Media Release, 3
- Senate Debates, 24 June 1998, p. 3986.
- The Greens may have recently developed an added interest in
Section 44 issues. There was some debate about whether their House
of Representatives member, Mr Michael Organ (elected in the
Cunningham by-election), might be ineligible to be an MP under the
'office of profit under the Crown' provision. He was employed by
the University of Wollongong as a librarian, and was on leave
without pay both when a candidate and once he had taken office.
There was a suggestion that this might be an office of profit under
the Crown because Universities are established by statute, and
because so much of their funding is from the government. See Paul
McInerney, 'Organ's eligibility questioned', Illawarra
Mercury, 20 December 2002.
12 February 2003
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