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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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