Research Paper Index

Research Paper no.18 2001-02

Candidates, Members and the Constitution

Bob Bennett
Politics and Public Administration Group
28 May 2002

Contents

Major Issues

A principal task for the framers of the Australian Constitution was to distinguish between those rights and responsibilities to be entrenched in the federal compact and those that could safely be left to Parliament or to the courts to regulate.

Some of these choices were easily made. Australia's Constitution would have to define the distribution of power within the federation and delineate the boundaries of state authority. The basic institutions of government and the manner in which their powers were to be exercised would have to be prescribed. Transitional provisions to get the Commonwealth 'up and running' were needed as was a mechanism for making changes to the Constitution as the need arose.

Other choices were more difficult. Just how much of the administrative detail should the Constitution incorporate? What statements of enduring principle ought to be made? In what ways should the powers given the three arms of government be limited by specific constitutional guarantees? What statements of principle would the document need to contain and what values would it need to reflect to garner sufficient support from voters in the six federating colonies? With regard to the Parliament itself, the written Constitution offered the prospect of a code that would define the rights and obligations of those seeking elected office.

Rules embodying statements of principle once included in the constitutional framework enjoy an elevated status and are protected from simple legislative attack. However, they come at a price.

Constitutions that may only be amended by popular and special majorities can become ossified. Too much specificity may limit the Parliament's capacity to enact new laws. As time passes, community standards and expectations change and support for an entrenched law may dissipate. Constitutionally entrenched rules may become just another trap for the unwary rather than an effective restraint on abuse. Entrenched laws may survive because there is neither the political will nor the pressing need to remove or amend them. Reformers may respond by convening expensive inquiries and by finding ways around the problem without actually resolving it.

Sections 16, 20, 30, 34, 38, 43, 44, 45, 46, 47, 48 and 49 of the Constitution all have, or have had, a bearing on who may be elected to the Australian Parliament. These provisions are now complemented (or in some cases supplemented) by legislation, principally the Commonwealth Electoral Act 1918.

The Founders entertained a fairly simple vision for the federal legislature. First, the Commonwealth Parliament would be made up of men not unlike themselves. In fact, and as was perhaps to be expected, 50 per cent of those who participated in the 1897-98 Convention Debates later served as members of the Commonwealth Parliament. Second, if the institution of Parliament was to be protected from the sort of scandals that had been prevalent in colonial politics, the Constitution would have to guard against conduct that placed private gain above the public good. Third, adjudication of election disputes and disputes over the membership of the House of Representatives and the Senate, though initially left to the respective Houses, could be transferred to the Courts.

Unifying the Convention Debates on members' qualifications was the acceptance of a need to reduce opportunities for conflicting interests and loyalties to affect Parliament's deliberations and its reputation. Although the Founders' aims excited little controversy, striking a balance between the constitutional entrenchment of candidates' and members' qualifications and allowing subsequent Parliaments a say in what those rules ought to be proved more difficult.

For reasons that are not always clear, the Founders constitutionally entrenched some provisions dealing with membership of the Parliament, while others would apply 'until the Parliament otherwise provides' and a third category of matters was left open. Hence some provisions, including those forbidding simultaneous membership of both Houses, others disqualifying candidates and members who are foreign citizens or persons convicted of treason or offences punishable by more than 12 months imprisonment, and those denying bankrupts and holders of offices of profit under the Crown membership of either House, were all entrenched. On the other hand, the penalties for sitting whilst disqualified, the means for resolving disputed elections, and substantive age and residency qualifications are amongst the matters that may be legislated on by the Parliament without first amending the Constitution. Other matters such as whether the mentally impaired or prisoners should be elected to the Parliament were initially left to the electors. Some have never been regulated. For instance, there are no property qualifications for membership of either House, nor is there a limit on the number of terms that a member may serve.

On an international scale, Australia's Constitution sits close to the middle of the spectrum in relation to the number of positive personal attributes required of candidates and members.

Despite early opposition from some members of the House of Representatives, the Parliament quickly moved to divest itself of the task of determining disputes over the polling process. In 1907, after a protracted dispute over the filling of a casual Senate vacancy, further legislation was enacted to allow each House to refer disputes over membership to the High Court. This legislation, however, continued to permit each Chamber to settle such matters in-house. Although there are few instances on which to reflect, subsequent practice has been for the Senate to refer disputes over qualifications to the Court, whereas the House of Representatives has continued to perform that function for itself. Fears that the determination of qualifications would be tainted where they were not resolved independently were reinforced in 1920 when the Hughes Government used powers then available under section 49 of the Constitution and its numbers in the House to expel a member of the Labor Opposition.

Whether qualifications questions can also come before the High Court by other means such as under section 46 of the Constitution (now succeeded by the Common Informers (Parliamentary Disqualifications) Act 1975) or via the High Court exercising a general supervisory jurisdiction is still to be settled. Indeed, many issues surrounding the relationship between the two Houses and the Court to do with qualifications (including the vital issue of when a matter can be said to be finally determined) also remain unresolved.

The content of the qualification and disqualification provisions has been an ongoing if not continuous cause for concern. The generic criticism is that the current provisions are unclear and that they are largely ineffective. One argument has been that many of the existing constitutional restraints ought to be removed and replaced by legislation or else simply done away with altogether. Political practitioners, notably party officials, have perhaps come to regard the sections, especially section 44(i) (foreign citizenship) and section 44 (iv) (office of profit under the Crown), as principally because of nuisance value-more a trap for the guileless rather than a danger to the guilty. Such complaints, though rarely made, are apt to be associated with what for those involved is a political trauma as in the vacating of their seats by Senator Robert Wood (1988), Mr Phil Cleary (1992), Ms Jackie Kelly (1996) and the disqualification of Senator-elect Heather Hill (1999). The subsequent re-election of Cleary and Kelly with enhanced majorities after their respective removals suggests that the electorate may also see the existing disqualification provisions as operating at times in an unduly technical manner.

At the same time, as disputes or controversies over qualifications have become more common-although not commonplace-community concerns about standards in public life have deepened. While there is an argument that the ethical standards of Australia's federal parliamentarians are relatively high and nothing suggests that they are in decline, it is generally accepted that more needs to be done to bolster public confidence and dissipate long held community prejudices many of which predate Federation.

Reforming the existing but inadequate ethics code entrenched in the Constitution will be part of that task. Parliamentary and extra-parliamentary inquiries since the mid-1970s including the Riordan Inquiry into Pecuniary Interests (1974-75), Bowen Inquiry concerning Public Duty and Private Interest (1977-79), the Senate Standing Committee on Constitutional and Legal Affairs Report on the Constitutional Qualifications of Members of Parliament (1981), the Joint Select Committee on Parliamentary Privileges Report (1984), the Proceedings of the Australian Constitutional Convention, Structure of Government Sub-Committee Report on Constitutional Qualifications (1985), the Final Report of the Constitutional Commission (1988), the House of Representatives Legal and Constitutional Affairs Committee Report on aspects of section 44(i) and 44(iv) of the Constitution (1997) and the Joint Standing Committee on Electoral Matters Report on the 1998 Election (2000) were all to varying degrees critical of aspects of the present provisions.

One prominent concern is that the existing constitutional requirements prevent large numbers of Australians from standing for public office. Another is that the current constitutional safeguards are outmoded and ought to be replaced or complemented by a more transparent modern regulatory regime encompassing members' pecuniary interests and dealing more effectively with conflicts of interest both actual and perceived.

Contrary to what at times may have appeared something of a self-reinforcing clamour for such reforms, it has been suggested that the current provisions adequately serve their purpose and that, in any case, the prospects of securing the necessary support for a constitutional amendment are not good. High Court decisions over the past 15 years ending with Sue v Hill (1999) have largely clarified the meaning of section 44(i) and it is now plain what must be done by a foreign citizen to allow him or her to stand for the Australian Parliament. The restraints on public office holders standing for Parliament were also pretty much settled by Sykes v Cleary (1992). Likewise, what had been seen as an ongoing constraint on more flexible arrangements in composing federal ministries by appointing Assistant Ministers were dispelled finally by the High Court in Ex parte Taylor (2001). It might also be argued that many of the problems associated with the provisions have been or can be solved administratively. Assisted by the Australian Electoral Commission, the established political parties have adopted better procedures to weed out potential candidates who do not meet any of the relevant requirements for election imposed by the Constitution or the Commonwealth Electoral Act. Instituting a convoluted and expensive process of constitutional amendment might also suggest that the problems of 'corruption' at the federal level are greater than they really are.

Against this, certain aspects of the existing constitutional 'code' require attention. Section 44(v), intended to prevent members from benefiting from contractual agreements with the Commonwealth and to stop the Executive suborning members of Parliament by offering them inducements to support the Government, requires reworking. Here the Court's decision in Re Webster (1975) arguably only succeeded in reducing the scope of what appeared an overly wide provision to one which now appears to offer little practical protection to the public interest or Parliament's reputation. The second limb of section 44(ii) which disqualifies members once they are subject to be sentenced for an offence punishable by imprisonment for one year or longer is unclear as to a number of timing questions including in relation to the exercise of any appeal rights by members. Potential for conflict between the Courts and Parliament over jurisdictional questions might be eliminated. Whilst the bar on foreign citizens standing for office might be maintained, it is arguable that the present sections could be amended to make it easier to identify cases of potential dual citizenship and streamline the means for removing it as an impediment for political office. Grey areas regarding the incompatibility of public employment and elected office (employees of statutory authorities, members of statutory authorities and local government employees and local councillors) might also be addressed.

Concerns over the likely chances of securing constitutional change need to be balanced by relatively recent successes in securing change, as in NSW in 1981, and the ongoing damage that may arise from simply doing nothing.

In the Commonwealth's second century the primary task for legislators may be to revisit the intentions of the Founders to ensure that conflicts between private interest and public duty are not resolved in favour of the former. The Founders' intention was that qualifications for holding public office would boost public confidence in the institution of Parliament. Placing some of those requirements in the Constitution rather than leaving them to ordinary legislation served the dual purpose of limiting Parliament's potential to undermine its own credentials and of emphasising the fundamental nature and importance of matters of probity and integrity to the health of any democracy. None of these considerations are any less important now than they were 100 years ago. What has changed is that the Constitutional framework does not provide the certainty or the degree of protection to the public interest that may have been envisioned in 1901 or is required 100 years later. Improvements may be effected by a variety of means including reinforcing existing disclosure rules and related controls on members' pecuniary interests. As it was for the Founders, the choice of what matters to entrench in the Constitution and what to leave to legislation and the good judgment of the electors will be amongst the most important to be made.

Introduction

Apart from setting the ground rules for the first federal election in 1901, the Constitution need not say anything about membership qualifications for the Australian Parliament. But it does.⁽¹⁾ The formal legal requirements are a hybrid. Some rules are entrenched and cannot be changed without constitutional amendment while others only remain as they are 'until the Parliament otherwise provides'. These rules, whether they are part of the Constitution or in the form of legislation enacted by Parliament, are subject to interpretation by the Courts. Indeed the Parliament has given the High Court as the Court of Disputed Returns a special role to play in relation to both disputed elections and disputes over membership of the Parliament. Beyond that, there are the rules developed by the Senate and the House of Representatives to control their internal proceedings and their relations with each other. These 'in-house' rules and orders are generally not subject to judicial review.

The Constitution's principal focus is on questions of 'qualification' and 'disqualification' but this inescapably is hedged about by broader questions about what sort of people best represent the electors, how parliamentarians should perform their duties, and the standards of probity the public ought reasonably to expect from their elected representatives.

Sections 44 and 45 of the Constitution list the main substantive qualifications and grounds for disqualification. The attributes specified in section 44 apply to candidates as well as members. The grounds set out in section 45 apply to sitting members only.

The Founders fashioned a compromise between: (1) entrenching a comprehensive mandatory code of conduct in the Constitution; (2) allowing Parliament to make the rules for selection of candidates and members; and (3) leaving the membership of both Houses exclusively to the judgment of electors via the ballot box.

Elements of this compromise have proven unsatisfactory. Some of the provisions are widely seen as too narrow or ineffective, others as overly technical. A lack of precision, as in relation to defining the respective roles of the two Houses and the Courts, has also been a recurring concern. On the other hand, the framework devised by the Founders and adapted by the Parliament, if less than perfect, has proven durable and generally workable. A century of parliamentary practice, electoral contests and intermittent judicial review has also unravelled some of the constitutional entanglements that concerned earlier commentators and practitioners. Some substantive doubts have been removed. For instance, while the meaning of section 44(i)-dealing with disqualification arising out of foreign allegiance and foreign citizenship-was once regarded as uncertain, High Court decisions in more recent times have produced greater clarity if not administrative efficacy.

While the Constitution deals separately with matters concerning 'qualification' and 'disqualification' of candidates and members, that distinction is largely arbitrary. A qualification question may, for instance, relate to whether a candidate is incapable of being elected because he or she is disqualified from standing for office.⁽²⁾ Laws that narrow the scope of disqualification provisions necessarily enlarge the pool of potential candidates for office. Additional qualification requirements inevitably reduce the potential number of candidates for office. In many instances, nothing need turn on the distinction between 'qualification' and 'disqualification'.⁽³⁾ Qualifications questions are, however, generally and for the purposes of this paper, treated as distinct from election disputes arising out of voting irregularities.⁽⁴⁾

Candidates and Members

The distinction between candidates and members is of greater practical significance particularly in relation to the Senate.

Section 44 of the Constitution provides that persons who fail to meet the set criteria for election are incapable of being chosen or of sitting as a member of either House.

Under section 44 candidates must therefore deal with any potential cause of ineligibility prior to being elected to or 'chosen' for Parliament. The High Court by a clear majority in Sykes v Cleary ((1992)⁽⁵⁾ has determined that the relevant deadline for rectifying any disabilities is prior to the date of nomination. So, for example, a person in breach of section 44(v) at the time of nomination because (say) they held shares in a company with Commonwealth Public Service contracts could not save themselves from disqualification by selling those shares after the date of nomination or after entering Parliament. (They would have to rely on the various exemptions under section 44.)

Where a section 44 invalidity is established in respect of a candidate, their candidature is treated as a nullity. The presence of an ineligible candidate in the ballot will not void the election. If, however, an ineligible candidate has received a plurality of votes, their election is treated as void. This will usually give rise to a by-election (in the case of the House of Representatives) or a recount of ballots excluding the disqualified candidate (in the case of the Senate). Where, however, a sitting member does something after the date of their election to incur disqualification, their seat is declared vacant. This gives rise to either a by-election (in the case of the House of Representatives) or a casual vacancy (where a Senator is disqualified). In the latter part of the last century there emerged two radically different critiques of the provisions. First, there were the commentators and various committees of inquiry who regarded the provisions as an inadequate and incomplete bulwark against corruption. A second group, made up principally of practitioners, saw some of the constitutional safeguards as not just ineffectual but largely of nuisance value. Where these two schools of thought could agree was on the desirability of change and the difficulty, given the constitutionally entrenched nature of aspects of the law, of achieving it.

These contemporary controversies, however, hark back to the three broad options referred to above that confronted the Founders. A century on, the real choice still lies between formal regulation on the one hand and political sanctions imposed either at the ballot box or by party hierarchies on the other.

As with other contributions to the Department of the Parliamentary Library's centenary series, this paper focuses on the way Parliament has exercised the powers conferred on it by the Founders. Beyond that, though, there lies the 'unfinished business' left by what was an incomplete or transitional conferral of power on the two Houses to set standards that protect their own integrity and safeguard the public good.

Late nineteenth century concerns over political ethics led to the inclusion in the Constitution of provisions designed to limit the choices of electors to those of good character. This was to be done principally by restraining the potential for conflicts of interest between the members' private affairs and those of the wider community. The Founders also deemed a narrow class of past transgressions to be an automatic bar to elected office. Subsequently, Parliament has not departed radically from the Founders' words or their wider vision.

Although successive parliaments have complied with the Founders' vision, their interest has been sporadic and mostly reactive, for although demands for higher standards in public life do not abate, actionable forms of graft have been comparatively rare in Australian federal politics. Political pragmatism and understandable scepticism about the efficacy of legislative action has held back reform, even that backed by independent experts and where bipartisan support for change was likely.

It is logical then that a paper such as this should ask what is to be made of the apparent reluctance to test electoral support for renovating entrenched constitutional safeguards on candidates' and members' qualifications? Is it just that it isn't worth the trouble? If that is so, have other means of protecting the public interest largely supplanted the Founders' 'code' of conduct? Is the remedy (if one is needed) to be found in better drafting-a recasting rather than a reformulation of the existing rules? Or is it that the constitutional safeguards reflect a preoccupation with the quality of Parliament and its membership when the focus ought to be elsewhere, for example on the Executive Government? Lastly, has the parliamentary response lived up to the Vision of the Founders and does it meet current public expectations and satisfy Parliament's own aspirations?

Then and Now

The first federal election was held on 29 and 30 March 1901. In total, 127 candidates contested 36 Senate seats and 185 nominated for 75 places in the House of Representatives.

Sections 16 and 34 of the Constitution required that all those standing at the first poll were: subjects of the Queen either natural born or naturalized for five years, Australian residents of three years standing who could vote in House of Representatives elections,⁽⁶⁾ and at least 21 years of age.

As sections 44 and 45 provide, anyone seeking election to the first Commonwealth Parliament would be ineligible to stand (and, if elected, could not remain members) if:

• they were employed by government
• they owed allegiance or appeared to owe allegiance to a foreign country
• they had been 'attainted' of treason
• they were under sentence for an offence carrying a penalty of at least 12 months imprisonment
• they were an undischarged bankrupt, or
• subject to certain exceptions, they were in receipt of discretionary payments from government either in the form of a pension or a contract for services.

For the federal election held on 10 November 2001, 285 candidates nominated for 40 Senate vacancies⁽⁷⁾ and 1039 candidates stood for 150 seats in the House of Representatives. Candidates for the 2001 General Election were no longer subject to the substantive requirements set out in section 34. Section 16 continued in force, providing that the qualifications for election to the House and the Senate are identical. However, section 34 had been supplanted by section 163 of the Commonwealth Electoral Act 1918 which requires that candidates be Australian citizens, qualified to vote at a House of Representatives election and at least 18 years of age. Section 34 could be overridden because the Founders prefaced the section with the key words 'until the parliament otherwise provides'. Parliament exercised a similar power with respect to sections 46 (penalties for sitting when disqualified), 47 (disputed elections and qualifications) and 49 (parliamentary privileges, powers and immunities) of the Constitution, all of which have either been overridden or augmented by legislation.

The disqualifications imposed by sections 44 and 45 have been added to by sections 164 (members of other parliaments) and 93(8) (persons of unsound mind, persons serving a sentence of 5 years or more) of the Commonwealth Electoral Act. Sections 44 and 45, although much criticised, remain untouched largely because they can only be repealed or amended by way of the referendum procedure available under section 128 of the Constitution.

A Vision?

To the extent that the Founders can be said to have entertained a 'vision' for the composition of the federal legislature, it was that (initially at least) it would be comprised of men with similar backgrounds and interests to their own. This is largely what they got. Approximately 50 per cent of those who participated in the 1897-98 Convention debates were later to serve in the federal legislature.

The Founders' more enduring concern, however, was to protect the public good and sustain public confidence in government. As Isaac Isaacs of Victoria observed:

This goal was matched by a desire not to discourage participation in public life or arbitrarily exclude persons from elected office. Also at the forefront of the Founders' agenda was setting the ground rules for the first federal poll, rules that would not handicap the wider campaign for federation. Those rules would need to provide a credible mechanism for resolving election disputes and for handling challenges to members' and candidates' qualifications.

With an eye to the longer term, the Founders also sought to devise arrangements that would be resilient enough to withstand the instant pressures of political ambition, yet flexible enough to endure over time. As George Reid of NSW cautioned:

The end result was a hybrid. Less than a complete code of conduct for candidates and members, some standards are prescribed by the Constitution, others are set by the Parliament, with the rest left to the whims, fancies and good judgment of the voters.

For much of the past century the disqualification provisions excited little or no interest. There was some activity in the first 10 or so years but most of the 'action' has been in the last 25 with challenges to the bona fides of candidates and sitting members becoming more common. Matching this trend, commentators and political practitioners have argued that the disqualification provisions are of nuisance value and an ineffective guard against conflicts between public duty and private interest. It is also argued that they unfairly deny large numbers of Australians the right to stand for election to the Commonwealth Parliament.

How, and how well, the Founders succeeded in their aims of devising a fair, workable and democratically inclusive regime of members' qualifications is the subject of the remainder of this paper. The focus is on three principal issues:

1. Were the Founders able to adequately address their own concerns about the disqualification provisions?
2. How has Parliament responded to the strengths and limitations of the current legal regime?
3. Is further reform necessary or possible?

Frames of Reference

Each delegate to the 1891 Convention was chosen by members of Colonial Parliaments and, on an average, had fifteen years of parliamentary experience behind them. Lawyers were the most heavily represented profession or calling.

Although New Zealand and Queensland were not represented and those attending were elected and not appointed,⁽¹⁰⁾ the profile of the various delegations in 1897-98 was much the same as in 1891. Again the level of parliamentary experience was high, averaging 12 years service per delegate. All the delegates in 1897-98 bar one were either parliamentarians or former members. The percentage of those attending with a legal background rose from just on one third in 1891 to about half of the delegates at the later Convention.⁽¹¹⁾ There were no women and no indigenous Australians amongst the delegates.

At the time of the debates each of the colonies had similar legislation which entrenched minimum requirements for membership of parliament.⁽¹²⁾ Some of the colonial constitutions also contained specific disqualification provisions but here there was a greater degree of variation.⁽¹³⁾

During the Convention Debates, qualification questions generally were only discussed briefly and the matters of controversy were few. Delegates frequently cited their own colonial models and experience.⁽¹⁴⁾ What are now sections 44 and 45 received the greatest attention.

Inevitably the thinking of many delegates was shaped by their own experience, enlivened by what knowledge they had of other constitutions-principally the Canadian [in relation to section 44(i)]⁽¹⁵⁾ and that of the United States of America.

The influence of foreign constitutions should not, however, be overstated. Australia did not, for instance, follow the Canadian model by providing that Senators must be at least 30 years of age or face compulsory retirement at age 75.⁽¹⁶⁾ Nor did the Founders adopt the US requirements that members of the House of Representatives have attained the age of 25 years and Senators be at least 30 years old.⁽¹⁷⁾

Comparison with constitutional provisions in other countries generally, would place Australia at close to the middle of the spectrum in relation to the number of positive personal attributes required of candidates and members.⁽¹⁸⁾ Age, residence, and 'citizenship-like'⁽¹⁹⁾ requirements were all incorporated in the draft. The Founders did not, however, entrench constitutional requirements imposing minimum educational qualifications or property qualifications. There were no limits on the number of terms that members could serve,⁽²⁰⁾ and members could resign from a political party and move to another without a mandatory by-election.

Likewise, there are no recall provisions and no 'reserved seats' for members of particular ethnic groups. Except in respect of the filling of casual Senate vacancies,⁽²¹⁾ candidates were elected and not appointed or subject to election by some form of electoral college. The Constitution did not provide for anything akin to modern funding and disclosure rules. There was no requirement for a register of candidates' or members' interests to enable the electors to make more informed decisions in selecting their representatives.

The Constitution itself only set standards for members of parliament generally. There are no special requirements for ministers other than that they must within 3 months of being appointed to the ministry have won a seat in parliament.⁽²²⁾ Ministers were bound by the same provisions as members but are not subject to additional probity requirements to reflect their greater capacity to benefit from any blurring of their public and private interests.⁽²³⁾

The Founders did not follow the lead of the New South Wales Constitution of 1855⁽²⁴⁾ and specifically limit the capacity of the Executive to dominate the Parliament by increasing the proportion of members who hold, and thereby may take, the benefits of ministerial office. Section 65 of the Australian Constitution merely provides that the number of ministers should not exceed 7 until the Parliament provides to the contrary.

Rules governing the qualifications of members were, however, much influenced by the practice in the United Kingdom and the six Colonial Parliaments. In those jurisdictions disputes regarding members' qualifications and vacancies came within the exclusive jurisdiction of the relevant House.⁽²⁵⁾ There was no role for the Courts except under the common informer provisions (discussed below). Reflecting this practice, the precursor to section 47 adopted by the 1891 Convention would have entrenched the practice of the relevant Chamber determining all questions concerning qualifications and vacancies. It was not until the Adelaide Session in 1897 that Parliament was given the option under the Constitution of allowing questions concerning qualifications and vacancies to be dealt with by extra-parliamentary bodies.

Power over disputed elections was another matter. Whether the Commonwealth Parliament ought to follow the usual practice in the majority of the Australian Colonies and retain jurisdiction over election disputes was a contentious matter both during the Conventions and in the early years of the Commonwealth. In part this was because the British House of Commons had only a few years earlier (in 1868) allowed jurisdiction for the trial of disputed elections to be transferred to the United Kingdom Courts. A motion to include disputed elections in matters that each House of the Australian Parliament could choose to deal with itself-but for which the Parliament as a whole might make provision for extra-parliamentary review-was rejected at the 1897 Adelaide Session.⁽²⁶⁾ After further disagreement, debate and prevarication, such a motion was eventually adopted at the Sydney Session.⁽²⁷⁾

Flexible or Rigid?

Perhaps the most critical choice facing the Founders was between an entrenched set of provisions dealing with qualifications and one that could be varied by the Parliament.

Those supporting a rigid approach argued that certain basic norms should be protected and pointed to similar though varying approaches in the constitutions of the six Australian colonies. Those wanting greater flexibility argued that the State constitutions were relatively easy to amend and that 'parliament should regulate its own procedures'⁽²⁸⁾ and that entrenchment was a 'mechanical device' of only limited use in promoting integrity in public life.⁽²⁹⁾

The balance between 'rigidity' and 'flexibility' was considered across a range of qualification issues. Hence, at the 1891 Convention debates, there was discussion as to whether the constitution itself should bar persons with criminal records standing for election to Parliament:

A similar debate on the merits of entrenchment and flexibility was a significant feature of the Adelaide and Sydney Sessions of 1897 during a debate on whether to limit the right of members to accept Executive Government appointments within six months of retiring from Parliament.⁽³¹⁾

The more radical and arguably more democratic approach of having few if any rules governing qualifications, leaving it to the electorate to make judgments case by case about the qualities of individual candidates, attracted little support, principally because the relevant Westminster and colonial heritage was just too strong.

Indeed it is somewhat surprising that the approach adopted by the delegates was not more rigid than that ultimately agreed. The 1891 draft Constitution shaped the debate and it followed the 'rigid' approach. It sought to entrench all the key provisions dealing with members' qualifications and disqualifications in the Constitution. Had this model been adopted, Parliament would have had little scope to change the law dealing with disputed elections, members' qualifications, disqualification and vacancies. The 1897 Sessions took a more liberal stance and many of the clauses in the 1891 draft were amended to commence with the phrase 'until the parliament otherwise provides'. Significantly, however, not all the relevant clauses were amended in this way. In a vote of critical importance, an attempt sponsored by South Australian delegate, Patrick Glynn, to give Parliament power to amend the disqualification and procedural provisions in what are now sections 44 and 45 of the Constitution was defeated.⁽³²⁾

'That Went as Well as Could be Expected'

Much would seem to have gone as the Founders intended or would have hoped.

As mooted at the Convention debates, Parliament moved quickly to divest itself of the power conferred by section 47 of the Constitution to handle election disputes,⁽³³⁾ that is legal challenges to the polling process and the lodgement of election returns. Such disputes come within the sole jurisdiction of the Court of Disputed Returns-invariably the High Court of Australia sitting in a special capacity created under Commonwealth electoral law.⁽³⁴⁾ Those who believed that the Parliament could not be trusted to hear election disputes impartially thus gained a significant victory over those, principally located in the House of Representatives, who wanted each House to be the final arbiter in such matters. This group, which ironically, given his subsequent expulsion, included Hugh Mahon (ALP, Coolgardie, WA), continued to agitate for keeping decision-making with the Parliament, arguing that the involvement of lawyers and the courts would be expensive and unhelpful.⁽³⁵⁾

The Commonwealth Electoral Act 1902, which effected the above changes, was also a significant advance on the position in some States. Prior to Federation, Tasmania and Western Australia had transferred exclusive jurisdiction over election disputes to the courts. South Australia and Queensland persisted with hybrid arrangements that provided for court-like bodies comprised of judicial officers and selected members of parliament to determine disputes. South Australia abandoned this arrangement in 1969 and Queensland in 1915 when the latter provided for an Elections tribunal solely constituted by a Supreme Court judge. In New South Wales, exclusive jurisdiction over election disputes did not pass to the NSW Supreme Court until 1928. In Victoria, the Legislative Assembly retained jurisdiction until 1934 and the Legislative Council until 1961.⁽³⁶⁾

At the Commonwealth level, disputes about vacancies and qualifications initially, however, stayed exclusively with the two Houses. In 1907 those arrangements received their first major test when a dispute arose over the appointment of J. V. O'Loghlin (ALP, SA) to a casual Senate vacancy. Initially the Senate Committee on Elections and Qualifications sought to resolve the matter but was unsuccessful. Having reached an impasse, the Senate Committee recommended referral to the High Court. However, for this to happen it was first necessary to amend the relevant legislation to confer jurisdiction on the Court.⁽³⁷⁾ In late 1907 the Disputed Elections and Qualifications Act 1907 was passed and provided that any question regarding the qualification of a Senator or a Member might be referred to the Court of Disputed Returns on a resolution of the relevant House.⁽³⁸⁾ This did not mean that exclusive jurisdiction passed to the Courts, rather a shared (but unequal) jurisdiction was created.⁽³⁹⁾

From 1907 until 1974, qualifications questions received little attention. Relatively few matters of alleged electoral fraud or misconduct were raised in Parliament and only a handful of instances are recorded of a senator's or member's right to sit in the parliament being challenged.⁽⁴⁰⁾

Similarly, prior to 1974, academic interest-invariably a sign that trouble is either fomenting or being fomented-had been confined to those few scholars with a special interest in the intersection of constitutional law and politics.⁽⁴¹⁾ One commentator, not unreasonably, had gone so far as to describe the core provisions dealing with the disqualification of members in the following terms:

Although from 1907 the means existed for them to be drawn into disputes over qualifications and vacancies,⁽⁴³⁾ the Courts, with rare exceptions in 1946⁽⁴⁴⁾ and 1950,⁽⁴⁵⁾ were until the mid-1970s, likewise barely troubled by such matters. Foreclosing one potential horror scenario, the High Court ruled fairly early on that the presence of a disqualified member does not invalidate parliamentary proceedings involving that member.⁽⁴⁶⁾

With one major exception, disputes concerning the membership of either House have produced few political casualties and attracted little sustained public interest.

Since 1901 only one member has been expelled - the previously mentioned Hugh Mahon (then ALP, Kalgoorlie, WA) on 12 November 1920. In 1903, Senator John Ferguson (Free Trade, Queensland) was required to vacate his seat because of a poor attendance record.⁽⁴⁷⁾ In another case, the High Court constituted as the Court of Disputed Returns found that a person who had been sitting for some months in the Senate was an unqualified candidate as at the time of their election they had not been an Australian citizen.⁽⁴⁸⁾ In that case, their election was declared void and the vacancy was filled by recount leading to the election of another member of the same party as the disqualified 'Senator'.⁽⁴⁹⁾

Two members of the House of Representatives have lost their seats as a result of having been disqualified by the Court of Disputed Returns from holding parliamentary office because of the bar on members holding concurrent offices of profit under the crown imposed by section 44(iv) of the Constitution. In one case, Phil Cleary who had stood as an independent candidate for the Victorian seat of Wills, subsequently resigned his office of profit and recovered his seat at the General Election held four months after the Court ruled him ineligible. The second case involved the Liberal Member for Lindsay, Jackie Kelly. The ineligible candidate, having abandoned her office of profit and addressed the dual citizenship issue, was returned to Parliament at the by-election held to fill the vacancy created by her own disqualification. ⁽⁵⁰⁾

One Senator resigned after the commencement of her term on account of the possibility that her employment as a parliamentary staffer to another Senator during the lead up to taking her place as a Senator might have contravened section 44(iv). This matter was debated in the Senate and resolved when the potentially ineligible Senator, Senator Jeannie Ferris (Liberal, SA), resigned her Senate seat and was re-appointed to the ensuing casual vacancy.⁽⁵¹⁾

The most recent eligibility matter to end in the political demise of the central character involved the successful Pauline Hanson's One Nation Party (PHON) Queensland Senate candidate at the October 1998 General Election, Heather Hill. After the poll was declared but before she could take up her seat, Heather Hill's candidacy was successfully challenged in the Court of Disputed Returns.⁽⁵²⁾ The majority judges⁽⁵³⁾ found that Hill was incapable of being chosen because at the date of her election she held dual British and Australian citizenship and had not taken reasonable steps to renounce the former before nominating for the Senate. As in Re Wood,⁽⁵⁴⁾ the vacancy caused by Hill's disqualification was filled on a recount of ballots. It saw another PHON candidate, Leonard Harris, take Hill's place in the Senate from 2 July 1999.

Each of these matters made little material difference to the political make-up of the Parliament at the time. Perhaps their only significant consequence was that some electors were under-represented for relatively short periods while a new member was being chosen.

The closer scrutiny of the provisions over the past quarter century by the courts,⁽⁵⁵⁾ the Parliament and commentators has clarified many of the broader issues that were once a source of uncertainty and confusion.⁽⁵⁶⁾ The decisions in Sykes v Cleary (1992) and Sue v Hill (1999) clarified the constitutional meaning of 'dual citizenship' and made plain the preconditions for holders of dual citizenship standing for Parliament.⁽⁵⁷⁾ Sykes v Cleary settled the relevant time for determining the status of a candidate or member. (For persons standing for office it is the time of nomination. For persons already in Parliament it is the moment in time that the disqualifying event occurs.) After Sue v Hill it is now clear that British citizens are to be treated like all other holders of dual citizenship for the purposes of section 44(i). While other problems remain unresolved,⁽⁵⁸⁾ the area of unmarked terrain has been considerably reduced.

Arguably, while other facets of the eligibility rules remain less clear cut,⁽⁵⁹⁾ they only rarely come into play and their effects have been ameliorated by legislative or administrative action.⁽⁶⁰⁾ Moreover, while there is general agreement about the deficiencies of the present arrangements, there are differences about what should be put in their place. The cost of holding a referendum to replace the problematic elements of sections 44 and 45-and the probability of it being defeated-cannot be simply brushed aside. As the Clerk of the Senate has not unreasonably observed:

Contributions to the academic and professional literature over the last few years, along with the enduring work of the Parliament and its officials and of the Australian Electoral Commission, have enhanced the general understanding of constitutional requirements and the impact they can have on the political process.⁽⁶²⁾ As awareness of the potential pitfalls associated with the provisions has grown, the established political parties have also instituted more methodical and rigorous approaches to vetting the credentials of prospective candidates, with citizenship issues and the holding of potentially inconsistent public office being the main focus of such internal scrutiny. Others however, have inclined to a less sanguine view.

'A Nest of Problems?'⁽⁶³⁾

Sections 44 and 45 and the associated constitutional provisions have been widely criticised.

Leading scholarly critics include: Professor Geoffrey Sawer,⁽⁶⁴⁾ Professor Peter Hanks,⁽⁶⁵⁾ Professor Geoffrey Lindell,⁽⁶⁶⁾ Professor Tony Blackshield⁽⁶⁷⁾ and Professor Gerard Carney in his recently published and extremely valuable study of aspects of parliamentary law and ethics.⁽⁶⁸⁾

As Professor Sawer commented in evidence to the 1981 Senate Committee on members' qualifications:

Principally through its committees, Parliament has expressed similar misgivings about the current rules.⁽⁷⁰⁾ A study prepared for the Australian Constitutional Convention (1973-85)⁽⁷¹⁾ and the Final Report of the Constitutional Commission (1988) also called for substantial reforms.⁽⁷²⁾

It has been variously argued that the existing provisions:

• are open to abuse
• unfairly exclude a significant portion of the population from elected office and reduce the pool of talent available to sit in Parliament
• are uncertain
• are more likely to catch the guileless than the 'guilty' or else do not successfully address the mischief they were intended to prevent
• do not adequately define the respective responsibilities of the courts and the parliament, and
• impose inappropriate or draconian sanctions.

The Convention Debates and early Hansards make it clear that such concerns are not new. More recently though, longstanding doubts about technical features of the provisions and misgivings about their usefulness have been subsumed in (or perhaps surpassed by) a wider debate over lack of accountability and political corruption in its various forms, including conflicts between public duty and private interest.

Practicalities

The rules governing qualifications are now also closer to the surface of daily politics than they once were. Parliament and the Courts have considered a rising number of qualification questions in the last 25 years.⁽⁷³⁾ Between 1998 and 2000 four court cases either affected or had the potential to affect the composition of the Commonwealth Parliament.⁽⁷⁴⁾ In the preceding election year, the candidature of at least four serious or potential aspirants for elected office fell under the shadow of section 44(i) which requires all those holding foreign citizenship to take all reasonable steps to renounce that citizenship before nominating for election to the Commonwealth Parliament. Mr Michael Johnson, a Brisbane barrister with dual British-Australian citizenship, was forced to withdraw from the Liberal pre-selection contest for the March 2001 Ryan by-election over doubts that he could finalise paperwork renouncing his British citizenship in time to validly nominate as a candidate. The first pre-selected Australian Democrat candidate for the July 2001 by-election in the federal seat of Aston withdrew-perhaps erroneously-from the contest on the basis that he might not meet the requirements of section 44(i).⁽⁷⁵⁾ It was also suggested that Carol Nugent, the widow of the late member for Aston, Peter Nugent, was also prevented from pursuing any interest in contesting Aston because she held dual British citizenship and would not be able to renounce it in time to nominate for the poll.⁽⁷⁶⁾

The 10 November 2001 General Election has already produced a fresh dispute over candidates' and members' qualifications. It was reported during the 2001 General Election campaign that a Country Liberal candidate to represent the Northern Territory in the Senate, London-born Nigel Scullion, had 'made an eleventh hour dash to London' to ensure his British citizenship was revoked before the close of nominations.⁽⁷⁷⁾ And Mr Scullion's problems did not end there. In the week leading up to the resumption of the Parliament for the 2002 Budget Sitting, Senator Scullion referred a question of his eligibility to sit in the Senate to the President of the Senate for consideration and possible determination by the Chamber or by the High Court. The instance in question arose from a possible breach of section 44(v) of the Constitution which prohibits candidates for and members of the Commonwealth Parliament from holding shares in a company with fewer than 26 members which has any business agreement with the Public Service of the Commonwealth.⁽⁷⁸⁾

As alluded to above, rising levels of litigiousness mean that eligibility questions now occupy the thoughts of campaign managers, candidates and party machines to a degree that had been previously reserved for disputes about polling irregularities. As a former New South Wales Attorney-General has written with regard to both the Commonwealth and New South Wales Constitutions:

Such comments should not surprise nor should the degree of frustration felt by political practitioners towards the provisions. As Dr John Uhr notes in another paper in this series, 'elections do not come cheap'.⁽⁸⁰⁾ They not only cost the public purse, but are also a huge drain on the financial and political capital of both individual candidates and political parties. The cost to an individual, successful at the ballot box, but subsequently disqualified from office, needs no elaboration. For their supporters, and for a political party-particularly a small political party-the price in terms of lost influence and loss of political momentum can be significant. The losses are multiplied many times over when a disqualification affects the balance of power in either House or ends the career of one of a party's leading lights.

Understandably political apparatchiks see many of the disqualification provisions as dated and largely of nuisance value. In 1901, it is argued, politics moved at a different pace and entry to the Parliament was not generally dependent on securing the endorsement of an established political party. Indeed, at the first General Election, five candidates for the House of Representatives were elected unopposed. Amongst the parties represented in Parliament, allegiances and alliances were relatively fluid. Campaigning and political life was less heavily 'scripted'. Over the past century politics has become more professionalised and the means of political communication have altered radically. The role of the individual parliamentarian has also undergone a marked transformation. This is to say nothing of other changes in society and in voter expectations. Despite such far reaching changes in the political landscape-for instance, at the 1901 election, there were no female candidates whereas for the 2001 poll there were 381⁽⁸¹⁾-the constitutional framework regulating membership of the Parliament has not altered since 1901.

In this context it is argued that Parliament's response has been irresolute or at best incomplete. What changes have been made to the eligibility rules are fairly marginal and have done little more than replicate parallel changes to the franchise. Only two referendum proposals relating to members' qualifications have been presented to Parliament and neither was put to the people.⁽⁸²⁾

Parliament and the Abuse of Power

Fears that a majority in either House may use its powers in relation to members' qualifications to skew the composition of the Parliament have yet to be realised although much the same result was once achieved by related means.

Section 45 of the Constitution relevantly provides that if a senator or a member of the House of Representatives becomes subject to any of the disabilities listed in sections 44 and 45, their place immediately becomes vacant. However, sections 44 and 45 are not the only provisions that may lead to the removal of a member from either House. Sections 49 and 50 of the Constitution ensure that each House, subject to the Constitution, has full control over its own internal proceedings. As constitutional authorities Quick and Garran point out, those powers and privileges at the time of Federation included the power to suspend members for disorderly conduct and the power to expel members guilty of disgraceful and infamous conduct.⁽⁸³⁾ Until the power to expel was revoked in 1987,⁽⁸⁴⁾ either House was able to circumvent the procedures laid down by sections 44, 45 and 47 and expel a member without cause. Each House's power to suspend persists but may be subject to the implied limitation that it cannot be used to create a 'constructive expulsion' by placing the suspended member in breach of either section 20 or 38 of the Constitution regarding unauthorised absences from parliament.

Mahon's Expulsion

On 11 November 1920, Prime Minister William Morris Hughes, acting on a doubtful press report,⁽⁸⁵⁾ moved for the expulsion from the House of Representatives of one his former ALP colleagues, Hugh Mahon, the Member for Kalgoorlie. The allegation against Mahon was that he had made seditious and disloyal utterances at a public meeting following the death in a British gaol of a prominent Irish Republican. In the words of Prime Minister Hughes, Mahon had 'counselled the dismemberment of Britain and the disruption of the British Empire'. Mahon, who was unable to attend the Parliament to defend himself in person due to illness, denied the charge, also claiming that his oath of office as an Australian parliamentarian did not bind him in allegiance to British Prime Ministers or their policies.⁽⁸⁶⁾ In the small hours of the morning of 12 November Mahon was held, by a majority voting on party lines, to have trespassed on the privileges of the House enshrined in section 49 of the Constitution. The House having found Mahon guilty, Prime Minister Hughes immediately moved to have his seat declared vacant.⁽⁸⁷⁾ Mahon was defeated at the subsequent by-election.⁽⁸⁸⁾

Sixty-seven years elapsed before the Parliament acted to prevent a repeat of the Mahon case. The Parliamentary Privileges Act 1987 (the Privileges Act)⁽⁸⁹⁾ acted on the recommendation of the 1984 Report of the Joint Select Committee on Parliamentary Privilege (JSCPP) and abolished each House's power of expulsion under section 49 of the Constitution.⁽⁹⁰⁾

Reviewing Mahon's expulsion and noting the indecent haste with which that matter had been brought on by Prime Minister Hughes,⁽⁹¹⁾ the JSCPP concluded that the government majority in the House of Representatives had 'demonstrably misused its powers' in the Mahon case. The JSCPP concluded that other factors also argued for the removal of the expulsion power. First among these was that other Constitutional provisions already created what the Committee described as 'something of a statutory code of disqualification'. Secondly, it was wrong for the institution to which a person had been elected to have the power to reverse the decision of the electors. Thirdly, the power of expulsion was seen by the JSCPP as simply too draconian.⁽⁹²⁾

The Field Affair

Prior to 1977, section 15 of the Constitution dealing with Senate casual vacancies simply provided that when the place of a Senator became vacant before the expiration of their term of service, a replacement would (in effect) be chosen by the relevant State Parliament. The successor would then occupy the vacated position until the position was subsequently filled at the next General Election for either the House of Representatives or the Senate, whichever occurred first.

From the introduction of proportional representation for the election of Senators in 1949 until 1975, all parties and the State Parliaments had adopted the practice of filling the casual vacancy with a member of the same political party as the resigned or deceased Senator. This practice, some would say 'convention', broke down twice in 1975 and the subsequent appointments made a material difference to the balance of numbers in the Senate where the Whitlam Government did not have a working majority.

When Labor Senate Leader Lionel Murphy resigned from the Senate in February 1975 to take up a position on the High Court, the Coalition Government in NSW secured the appointment of an independent in his place.⁽⁹³⁾ This break with 'convention' was compounded following the death of Labor Senator Bert Milliner on 30 June 1975. The Queensland National Party Premier, Mr Bjelke-Petersen, refused to appoint the Labor nominee⁽⁹⁴⁾ to fill the casual vacancy. Instead the Queensland Legislative Assembly appointed Mr Albert Patrick Field, a member of the ALP hostile to the Whitlam Government who had indicated that he would vote against it, including on the vital issue of the passage of supply.

Prior to Field's appointment the numbers in the Senate had been 30 Coalition, 27 ALP and two Independents both of whom were prepared to support the Government in passing the Supply Bills. Field's appointment was crucial because it gave the Opposition the tactical option of voting to defer consideration of Supply rather than having to vote against it outright.⁽⁹⁵⁾ Field's appointment was deeply resented and immediately challenged by the Labor Party. Labor alleged that the appointment infringed section 44(iv) of the Constitution as Field was still employed by the Queensland Public Service at the time of his appointment to the Senate. Labor unsuccessfully moved that the matter of Field's qualifications be referred to the Senate's dormant Committee of Disputed Returns and Qualifications. After a further attempt to deal with the matter in the Chamber,⁽⁹⁶⁾ Labor sought redress through proceedings either under the Commonwealth Electoral Act 1918 or by way of a writ under the Common Informer (Parliamentary Disqualifications) Act 1975; the exact form of process adopted is unclear.⁽⁹⁷⁾ Faced with the prospect of incurring a pecuniary penalty of $200 per day for every day he sat after an originating process was served under the Common Informers Act, Field did not return to the Senate after he was given leave of absence on 1 October 1975. The upshot of this was to leave Labor just short of the numbers it needed for a tied vote to defeat Opposition sponsored motions in the Senate.

The Constitutional Referendum passed in 1977 amongst other things⁽⁹⁸⁾ amended section 15 to provide for the filling of the casual vacancy by a person of the same political party as the former Senator. The revised section does not provide that the State Government and Parliament must select the party nominee and it is possible that should a disagreement arise over the appointment, that the State Parliament simply would not fill the vacancy.⁽⁹⁹⁾

The Field affair highlights the possible ramifications of qualification questions and the difficulties that may be sparked by them. Ultimately though, the adequacy of the provisions can be argued both ways. On the one hand it might be contended that the provisions as presently understood, i.e. after Sykes v Cleary,⁽¹⁰⁰⁾ provide ample guidance to the Parliament for dealing with a Field-type problem. Moreover, it also appears that the extra-parliamentary sanctions available under the relevant Commonwealth laws were enough to resolve the qualifications question albeit in a way which still left the then Government at a disadvantage.⁽¹⁰¹⁾

On the other hand, although Sykes v Cleary has established the critical point in time when a conflict of offices will find (even) a State Government employee disqualified from election to the House of Representatives, the position with regard to Senate Casual vacancies remains unclear. Is it the time that their appointment is announced; the time that their nomination is presented to the State parliament; or, in the cases of appointments made by the State Governor, is it the time that the appointee first sits in the Senate?⁽¹⁰²⁾

Likewise, as is discussed below, there also remains room for argument over which body or bodies ought to determine whether a person is qualified to sit and what procedures ought to be followed by it in making such a determination.

Competing Jurisdictions

Section 47 of the Constitution provides that:

As already discussed, and leaving for the time being the question of whether a dispute about an election can also constitute a valid dispute over a vacancy or a qualification, legislation was enacted in 1903 to transfer sole jurisdiction over 'disputed elections' to the High Court.

By contrast, jurisdiction for the determination of questions concerning qualifications and vacancies is shared between the Parliament and the Courts. This division of authority is in some ways unsatisfactory but not altogether surprising.

As Geoffrey Sawer remarked:

In 1907, after years of vigorous debate, Parliament created the means for each House to refer challenges to members' qualifications to the Court of Disputed Returns.⁽¹⁰⁴⁾ An initial reluctance to do so can be attributed to the same sorts of concerns that for a time forestalled attempts to pass jurisdiction over election disputes to the Courts. As noted above and as others record,⁽¹⁰⁵⁾ a dispute regarding a casual vacancy in the Senate brought matters to a head. Acting on the advice of its Committee of Disputed Returns and Qualifications in the Vardon and O'Loghlin matter,⁽¹⁰⁶⁾ the Senate asked the Government to introduce legislation to allow disputes over the filling of vacancies to be referred on the initiative of the relevant House to the Court of Disputed Returns.⁽¹⁰⁷⁾ Such legislation was indeed introduced and passed into law as the Disputed Returns and Qualifications Act 1907. This somewhat expedient step placed the Commonwealth at odds with the position in the States (with the exception of Queensland) at the time of Federation and thereafter.⁽¹⁰⁸⁾

However, as the relevant jurisdiction is shared between Parliament and the Courts, and because of the multiplicity of procedural paths laid down in sections 44 to 49 of the Constitution and in subsequent enactments, disputes over vacancies and members' qualifications may come to a head in a variety of ways.

1. Under Part XXII, Division 2 of the Commonwealth Electoral Act 1918, a matter concerning qualifications can be determined by the relevant House.
2. Questions concerning vacancies and qualifications may be raised first in the relevant House which may then resolve to refer the matter to the High Court constituted as the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918.
3. As an ultimate safeguard, section 46 of the Constitution provided that an interested person may bring what is called a common informer's action directly before the High Court to in effect challenge the right of any person to continue to sit in the Commonwealth Parliament.⁽¹⁰⁹⁾ Such a suit would now be brought under the Common Informers (Parliamentary Disqualifications) Act 1975.⁽¹¹⁰⁾ A person found to have sat while incapable of doing so is liable to pay the person who brings the common informer's action $200 plus a further $200 for each day that he or she sat after the originating process was served.⁽¹¹¹⁾
4. The High Court constituted as the Court of Disputed Returns determined in Sykes v Cleary⁽¹¹²⁾ that the qualifications of a successful candidate who has yet to take up his or her seat could be challenged in the Court of Disputed Returns under section 353(1) of the Commonwealth Electoral Act 1918. This view was confirmed by a 4-3 decision of the Court in Sue v Hill (1999).⁽¹¹³⁾ The majority judges⁽¹¹⁴⁾ concluded that a challenge to the qualifications of a candidate could also give rise to an 'election dispute' within the meaning of Division 1 of Part XXII of the Commonwealth Electoral Act. The minority judges⁽¹¹⁵⁾ in Sue v Hill, concluded that the history of the legislation, the intention of Parliament and the structure of Part XXII of the Commonwealth Electoral Act suggested the opposite result. In their view matters concerning qualifications and vacancies were separately regulated by Division 2 of Part XXII and therefore could not come to the Court by way of a petition under section 353 of the Act.
5. Matters concerning the composition of either House may also be subject to judicial review. Judicial review might be sought where it is alleged that the House's actions are at odds with the Constitution or the general law relating to members' qualifications. Judicial review, it is argued,⁽¹¹⁶⁾ would be granted on the basis that the Court is vested with an inherent or supervisory jurisdiction to preserve the integrity of the Constitution.⁽¹¹⁷⁾ Opportunities for seeking Court intervention in the internal workings of the Parliament are undoubtedly rare but the possibility cannot be ignored. An example of such a dispute not readily capable of resolution under one of the four methods identified above might arise where either House voted to indefinitely suspend one of its members.⁽¹¹⁸⁾ (The potential scope for the exercise of judicial review in relation to members' qualifications is beyond the ambit of this paper and in any event has been thoroughly traversed elsewhere.⁽¹¹⁹⁾ However, the point may be made that judicial review of parliamentary behaviour is not inconceivable nor, for that matter, necessarily undesirable.⁽¹²⁰⁾)

This veritable smorgasbord of remedies holds out the prospect of all sorts of interesting procedural, legal and political entanglements involving Parliament and the Courts. For example: does the exercise by either House of its power to determine qualifications questions under section 47 forestall or permanently bar an action under the Common Informers Act? Where a House makes a determination under section 47, is it still open to an interested party to bring an action on the same facts before the Court of Disputed Returns? Likewise where the Court has made a finding, can that finding be challenged or over-turned by the relevant House? Such questions have been the subject of various and largely inconclusive musings by commentators and political practitioners.⁽¹²¹⁾

Since the 1907 amendments, the Senate has referred two matters concerning the determination of qualifications of Senators to the Court of Disputed Returns for decision.⁽¹²²⁾ At least one other matter has been considered by the Senate but not referred to the Court.⁽¹²³⁾ By contrast, the House of Representatives has never referred a qualifications question to the Court and as recently as June 1999 refused to do so in regard a possible infringement of section 44(v).⁽¹²⁴⁾

In the latter instance, allegations were made in the House that a Parliamentary Secretary in the Howard Government, Mr Warren Entsch (Liberal, Leichhardt, Qld), was a shareholder in and a director of a company which had entered into a contract to supply concrete to an agency of the Commonwealth. This, it was alleged, made Mr Entsch incapable of being a member of the House by virtue of section 44(v) of the Constitution that provides that:

5. 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 twenty-five persons:

Mr Entsch could not rely on the exception available under section 44(v) excluding companies with more than 25 members as he was one of only two directors and held one of the two shares in the relevant business. On the other hand, there was nothing before the House to suggest that Mr Entsch was personally involved in the formation or performance of the contract to supply materials to the Commonwealth. Indeed, it appears that he played no role in the day to day management of the contracting firm.⁽¹²⁵⁾

When the matter was raised in the House of Representatives on 10 June 1999, the Government used its numbers to defeat a motion to refer the matter to the Court of Disputed Returns, amending it to in effect proclaim Mr Entsch's innocence of any breach of section 44(v).⁽¹²⁶⁾ Some members of the Opposition argued that the enactment of section 376 of the Commonwealth Electoral Act prevented the House dealing conclusively with the matter itself.⁽¹²⁷⁾ This view was quite correctly rejected by the Attorney-General. In effect that was the end of the matter as neither the Opposition nor any other interested person was prepared to follow the alternative course of pursuing Mr Entsch via an action under the Common Informers (Parliamentary Disqualifications) Act 1975. This would have brought the matter before the High Court sitting in its original jurisdiction (i.e. not as a Court of Disputed Returns).

Although the facts of the matter are not of particular interest for present purposes, the Entsch Affair does highlight the limitations of the present provisions and the manner for resolving any attendant controversy. The episode underscores unresolved concerns about the use by governments of their numbers in the House of Representatives to determine conclusively disputes arising under sections 44 and 45 regarding vacancies and qualifications. Those concerns include the prospect that one day a Government might not only protect its own supporters from judicial scrutiny but also deprive one or more Opposition members of their right to sit in the House without proper cause or without recourse to independent review. Commentary at the time suggested that the motion adopted by the House on 10 June 1999 confirming Mr Entsch's entitlement to remain a member not only prevented the matter being referred to the Court of Disputed returns but also to the High Court sitting in its original jurisdiction.⁽¹²⁸⁾ Others expressed support for the less contentious proposition that a resolution of the relevant House cannot act as a bar against a private legal challenge brought under the Common Informers (Parliamentary Disqualifications) Act 1975. Adopting the latter view, the Parliament is subject to the laws that it has enacted and both Houses are therefore bound by the Common Informers Act. The application of that Act is not expressly or impliedly extinguished in cases where either House purportedly has made a 'conclusive' finding on a qualifications matter.

It is generally accepted that the present position is unsatisfactory. Likewise few would contend that there are not sound arguments for following the Senate's practice in the Webster case⁽¹²⁹⁾ by referring such matters to the Court when credible doubts have been raised about an individual's capacity to sit in Parliament. That said, the prospects for reform are not good. Section 47 issues arise infrequently. Moreover, whatever the deficiencies of the current arrangements, they are more aptly described as untidy rather than intolerable. The potential for mischief is also limited if one accepts that the Court retains a supervisory jurisdiction in one form or another and because of the potential for interested parties to seek judicial review by way of the Common Informers Act. Legislation removing Parliament permanently from the fray and thereby from any attendant charges of self-interest and political expediency, is therefore technically possible but rather unlikely. It is more likely that the Senate will continue to follow the practice of referring qualifications matters to the High Court. In the short-term and at least in respect of government supporters, the House of Representatives will continue to determine such matters for itself. In time-although it could be a rather lengthy period-a sufficiently detailed and robust body of precedent may emerge from any Senate matters referred to the Court. This may in turn help to reshape practice in the Lower House too.

Unclear Meaning-Problems with Sections 44(i)-44(iv)

It has latterly been argued that many of the concerns of earlier commentators about the scope and meaning of sections 44 and 45 have been dispelled by decisions of the Court. This is true but only up to a point and it is perhaps less true of some parts of sections 44 and 45 than others. Take, for example, section 44(iv) which has been probably the most frequently recurring cause of contention in relation to qualification matters over the past decade or so.

Section 44(iv) provides that:

It is then subject to the specific exemption that states that:

The principal intention of this and related provisions⁽¹³⁰⁾ is to prevent the Executive Government from in effect 'buying' the votes of members of Parliament by granting them some form of ongoing government benefit.

Sykes v Cleary⁽¹³¹⁾ clarified some aspects of section 44(iv). Since that decision was given in 1992 it has been accepted that the expression 'office of profit under the Crown' prevents Commonwealth and State government employees, including those on unpaid leave, from nominating for federal Parliament. However, other and critical areas of doubt remain. It is still, for instance, unclear whether local government councillors and employees are subject to the restriction.⁽¹³²⁾ It is also uncertain whether section 44(iv) prevents Senators-elect from accepting government employment during what may be the protracted period between the time of their election and the moment that they first sit. The issue has arisen on at least three separate occasions and is unresolved⁽¹³³⁾ although the accepted wisdom⁽¹³⁴⁾ is that such employment is contrary to section 44(iv).

Similarly, but less significantly, the expression 'or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth'⁽¹³⁵⁾ has attracted attention and doubts have been raised as to the meaning of the lengthy exemption at the end of section 44 (iv).⁽¹³⁶⁾

An Undue Impediment to Efficient Government-The Case of Assistant Ministers and Parliamentary Secretaries

The second most significant impact of section 44(iv) was on the structure of federal ministries.⁽¹³⁷⁾

Section 64 of the Constitution provides that each Commonwealth Department of State must be headed by a Minister. Ministers for most practical purposes must be members of Parliament and may be paid a ministerial salary (section 66). The Constitution is largely silent on the appointment of what have variously been termed 'Parliamentary Under-Secretaries', 'Assistant Ministers' and 'Parliamentary Secretaries'. No specific mention is made of these offices. Members of Parliament may assist ministers in the administration of their portfolios but they may not be paid for doing so although, of course, they may continue to draw their normal entitlements for performing their parliamentary duties.

Section 65 limits the number of Ministers to seven until the Parliament otherwise provides. The current maximum number of ministers has been set by legislation at 42 by the Ministers of State Act 1952.

Together, sections 44(iv) and 64 were until comparatively recent times treated as placing significant restraints on the structure of the Executive branch. Two inhibitions loomed large. First, it was thought that it was not possible that more than one minister can administer a single department of state.⁽¹³⁸⁾ This it was argued would tend to undermine the concept of responsible government inherent in section 64. A second and not unrelated question was whether assistant ministers and parliamentary secretaries (however styled) could be paid for any quasi-ministerial duties they performed.

In the most general of terms, assistant ministers help ministers with the 'internal' administration of government departments. Parliamentary secretaries may assist ministers with their parliamentary duties, for example, securing the passage of portfolio legislation. Together with the rarely appointed ministers without portfolio, these positions have been created for a variety of administrative and political purposes but principally to enable a more sensible division of labour within Executive Government. Their parliamentary role is limited. For example, the Standing Orders of the House of Representatives provide that Parliamentary Secretaries are to be treated as Ministers except in relation to the answering of parliamentary questions.⁽¹³⁹⁾ The Senate has also taken steps to limit and clarify their standing within that Chamber.⁽¹⁴⁰⁾

The operation of section 44(iv) meant until recently, however, that assistant ministers had to settle for enhanced status as their principal form of compensation. They could be reimbursed for reasonable expenses incurred whilst performing their official duties but could not be paid like ministers under section 66 or those holding parliamentary office such as the Speaker of the House and the President of the Senate.

History suggests a degree of friction between the pre-occupations and priorities of the Founders, the predispositions of some constitutional commentators and the dictates of modern government. The Founders, for their part, clearly intended to limit the size of the political executive relative to that of the Parliament. Section 65 was included in the Constitution to make changes to the size of the ministry transparent and subject to parliamentary approval, not just the whim of the Government of the day. Allowing governments to appoint an unlimited number of paid Assistant Ministers and Parliamentary Secretaries without parliamentary approval would have undermined section 65.⁽¹⁴¹⁾ Constitutional commentators Quick and Garran also suggest that the words of section 64 ruled out the possibility of appointing Ministers without portfolios,⁽¹⁴²⁾ a point later relied on by Sir Garfield Barwick to suggest that:

Tensions between practicalities and constitutional principles soon surfaced. These were largely sparked by the growth in the size and complexity of government generally but also by the enlargement of the Commonwealth's own specific responsibilities under the Constitution. The practice of allowing ministers to act for other ministers was given early recognition by what is presently section 19 of the Acts Interpretation Act 1901 and has withstood sporadic judicial attention.⁽¹⁴⁴⁾ Parliament has also progressively enlarged the maximum size of the Ministry provided for under section 65 of the Constitution. When first enacted, the Ministers of State Act 1952 set the maximum size of the Ministry at 20. By 1971 it had risen to 27 and the Ministers of State and Other Legislation Amendment Act 2000 sets the maximum ministry at 42.⁽¹⁴⁵⁾

Governments likewise felt themselves under increasing pressure to circumvent the limits imposed by sections 44, 64 and 65. Various 'cunning plans' to circumvent the provisions were devised. Examples of ministers without portfolio can be found as far back as the Barton Government and the third Fisher Government included two assistant ministers.⁽¹⁴⁶⁾ An honorary Minister was even appointed in 1934 to be in charge of the Royal visit.⁽¹⁴⁷⁾ The Scullin Government included 6 assistant ministers between 1929 and 1932 and the three Lyons ministries made a total of 40 such appointments from 1932 to 1939.⁽¹⁴⁸⁾

The Menzies Government appointed 4 unpaid 'parliamentary under-secretaries' in 1949 but their status was challenged by the Speaker Archie Cameron (Liberal, Barker, SA). The ALP supported the Speaker but the Menzies Government did not.⁽¹⁴⁹⁾ The Government subsequently responded that the positions did not constitute 'an office' and that their duties did not include performing executive acts required by law.⁽¹⁵⁰⁾

On 24 May 1956, Prime Minister Menzies advised the House that experience had persuaded him to drop the term 'Parliamentary Under-Secretary' in favour of the title 'Parliamentary Secretary'.⁽¹⁵¹⁾ On 19 March 1958,⁽¹⁵²⁾ Menzies announced that the Government had received legal advice to the effect that the position of parliamentary secretary must be purely honorary and that the Government was also unable to appoint assistant ministers.⁽¹⁵³⁾

On 29 April 1971,⁽¹⁵⁴⁾ Prime Minister McMahon announced the appointment of six unsalaried 'Assistant Ministers' and reiterated the advice that section 44 of the Constitution prevented them being paid for their additional duties.

The Senate Standing Committee on Constitutional and Legal Affairs 1981 Report criticised the need for governments to rely on highly technical or artificial arrangements to appoint 'ministers assisting'. The Report recommended either the wholesale reform of the relevant Chapter of the Constitution (Chapter 5) or, barring that, an amendment to section 44(iv) 'to enable the appointment and remuneration of assistant ministers, parliamentary secretaries and the like without causing their disqualification'.⁽¹⁵⁵⁾ It also noted criticism of the Quick and Garran and Barwick views regarding ministerial offices by leading constitutionalists including Professor Enid Campbell and Professor Geoffrey Sawer.⁽¹⁵⁶⁾ The Report included an opinion by D I Menzies QC which argued that the allocation of ministerial responsibilities was a political not a legal issue. Menzies QC argued that:

In a bold move to restructure Commonwealth administrative arrangements, the Hawke Government after the July 1987 General Election created 16 'super departments' in place of the individual 27 ministries that had existed up till then. As the size of the overall Ministry remained largely unaltered, a system of senior and junior ministers (administering in effect a single portfolio) was instituted. The Hawke Labor Government appointed parliamentary secretaries after the 1990 election in a change largely attributable to the creation of so-called mega-Departments with the Machinery of Government reforms in 1987. Since then the number of Parliamentary Secretaries has progressively increased from 4 under Prime Minister Hawke to the 12 in each of the three Howard Ministries.

In 1988, the Final Report of the Constitutional Commission concluded that section 64 may not prevent the appointment of more than one Minister to administer a single department and foreshadowed the sort of mechanism relied on by the Howard Government in 2000.⁽¹⁵⁸⁾ The Constitutional Commission also recommended changes to section 64 to recognise the position of Assistant Ministers.⁽¹⁵⁹⁾ Taken with the Commission's recommendations relating to section 44(iv), it would also be possible for these to be salaried positions.⁽¹⁶⁰⁾

It is fair to say that during the whole of this period, the constitutionality of junior and senior minister arrangements attracted more interest in Parliament than in the Courts. The issue was raised but not settled in the Federal Court on several occasions and only resolved after further pressure for change to the relevant constitutional arrangements had cycled through the system in the late 1980s and early 1990s.⁽¹⁶¹⁾

Notwithstanding the independent reports and ongoing criticism from commentators,⁽¹⁶²⁾ governments in the latter part of the last century continued to search for administrative and legislative ways around sections 44(iv) and 65. Until March 2000, the appointment and entitlements of parliamentary secretaries were governed by the Parliamentary Secretaries Act 1980. This legislation and the accompanying administrative machinery provided for appointment of an unlimited number of unsalaried parliamentary secretaries who would receive an expenses of office allowance as determined under the Remuneration Tribunal Act 1973. The ALP supported the passage of the 1980 Bill. However, all three Opposition speakers in the House criticised the proposal, variously attacking similar (but less formal) arrangements entered into by the Menzies and McMahon Governments, questioning the Government's motive for the changes and querying the possible implications for ministerial accountability to Parliament.⁽¹⁶³⁾

What now appears the final chapter is this saga began in November 1999 when the Howard Government wrote to the Remuneration Tribunal advising it that the Government intended to amend the relevant legislation to allow for the appointment of Parliamentary Secretaries as officers under section 64 of the Constitution. The Tribunal responded within a month by recommending a new scale for the payment of additional salary to Parliamentary Secretaries.⁽¹⁶⁴⁾ The Ministers of State and Other Legislation Amendment Bill 1999 was introduced on 9 December 1999 reflecting these proposals. The amending law, having enjoyed a fairly rapid passage through the Parliament, came into effect on 10 March 2000. It provided for the repeal of the Parliamentary Secretaries Act 1980 and set the size of Ministry at a maximum of 42 with 12 of those positions designated as Parliamentary Secretaries.

In September 2001 the High Court of Australia handed down its decision in Re Patterson; Ex parte Taylor⁽¹⁶⁵⁾ concerning a challenge to the cancellation of the applicant's visa by Senator Kay Patterson (Liberal, Victoria), the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs. Relevantly, the applicant had argued that the appointment of salaried Parliamentary Secretaries under section 64 of the Constitution was invalid. One matter raised with the Court was whether members appointed to the position of Parliamentary Secretary hold an inconsistent office of profit under the crown and therefore ought to be disqualified from sitting in Parliament by virtue of section 44(iv). Also at issue was whether more than one minister could concurrently administer any Department of State.

Putting close to a century of controversy to rest, the Court upheld present practice. Those judges deciding,⁽¹⁶⁶⁾ rejected Quick and Garran and Barwick's views on concurrent appointments, with Chief Justice Gleeson commenting:

His Honour also rejected the view that concurrent appointments would tend to undermine the quality of responsible government, stating that: