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Chapter 6 - Senators
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:
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:
Any person who —
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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
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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
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Is an undischarged
bankrupt or insolvent: or
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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
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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 sub‑section (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, half‑pay, 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
(s. 164)
-
has
been convicted within two years of the election of certain offences relating to
bribery and undue influence (s. 386).
The prohibition in s. 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 (disqualification of Senator Wood, In Re Wood 1988 167 CLR 145).
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 (Nile v Wood 1988 167 CLR 133; Sykes v
Cleary 1992 109 ALR 577). British
nationality is foreign nationality for this purpose (disqualification of
Senator-elect Hill, Sue v Hill 1999 163 ALR 648).
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. (Nile
v Wood 1988 167 CLR 133). 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 (for a contrary
interpretation in the UK, see Attorney-General v Jones 1999 3 All ER
436). 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 (Nile v Wood 1988 167 CLR 133; Sykes v
Australian Electoral Commission 1993 115 ALR 645 at 650).
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 (Sykes v Cleary 1992 109 ALR 577). 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 (see Chapter 19, Relations with the Executive
Government, under Parliamentary secretaries). 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
(29/5/1996, J.251-3).O 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. (It is not entirely clear whether senators-elect can resign, but the death
of a senator-elect is treated as giving rise to a casual vacancy: case of Senator Barnes:
1/7/1938, J.78.) 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 (20/8/1996, J.452-3).O 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 (12/9/1996, J.592-3). OIt 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. (Free v Kelly
1996 185 CLR 296)
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. (For an account of
this case, see ASP, 6th ed., pp 55-8.)
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
(Re Webster 1975 132 CLR 270;
for a critique of this judgment, see the report of the Senate Standing Committee
on Constitutional and Legal Affairs on the Constitutional Qualifications of
Members of Parliament, PP 131/1981, pp 76-80). In 2002 the Senate took under
consideration the question of whether Senator
Scullion was disqualified because of contracts
with government departments and agencies (14/5/2002, J.323). Independent advice was sought on the matter (18/9/2003,
J.2436-7). The advice indicated that he was not disqualified (10/2/2004,
J.2963).
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 (Vardon v O’Loghlin1907 5 CLR 201 at
210; Sykes v Cleary 1992 109 ALR 577).
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 (see above for the case of Senator Ferris, 1996).
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. (See Vardon
v O’Loghlin, In Re Wood and Sue v Hill, cited above.)
There is no obligation on the Australian Electoral Commission to
determine whether a person is disqualified at the time of the person’s
nomination (Sykes v Australian Electoral Commission 1993 115 ALR 645).
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:
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Takes the benefit, whether
by assignment, composition, or otherwise, of any law relating to bankrupt or
insolvent debtors: or
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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 (report on the Constitutional Qualifications of
Members of Parliament, PP 131/1981). 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.
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