Chapter 5 References


[1]See Ch. on ‘House, Government and Opposition’ for discussion of the Ministry and office holders.

[2]The definition of a private Member for the purpose of private Members’ business is wider than this—see Ch. on ‘Non-government business’.

[3]See also Ch. on ‘Parliamentary committees’.

[4]For sociodemographic analysis of electorates see P. Nelson, ‘Electoral division rankings: 2006 Census (2009 electoral boundaries)’, Parliamentary Library research paper, no. 18, 2009–10.

[5]In recent Parliaments there have been up to five independents elected. For an analysis of party affiliations of Members since 1901 see Appendix 10. see also ‘Political parties’ in Ch. on ‘House, Government and Opposition’.

[6]See ‘Free votes’ in Ch. on ‘Order of business and the sitting day’.

[7]David Solomon, Inside the Australian Parliament, George Allen & Unwin, Sydney, 1978, p. 126.

[8]‘Speech to the electors of Bristol, 1774’, quoted in Michael Rush, Parliament and the public, Longman, London, 1976, p. 55.

[9]Constitution, s. 44. In 1997 the House of Representatives Standing Committee on Legal and Constitutional Affairs recommended changes to the provisions of this section: Aspects of section 44 of the Australian Constitution, PP 85 (1997).

[10]Constitution, s. 45.

[11]Constitution, s. 43.

[12]Commonwealth Electoral Act 1918, s. 163. The Parliament has laid down these qualifications in place of those prescribed in s. 34 of the Constitution. There is thus no upper age limit. The oldest Member when first elected was Sir Edward Braddon in 1901, aged 71 years. The youngest to be elected were W. Roy in 2010, aged 20, and E.W. Corboy in 1918, aged 22 (by-election). Until 1973 the minimum qualification age was 21.

[13]Commonwealth Electoral Act 1918, s. 386.

[14]Commonwealth Electoral Act 1918, s. 93.

[15]Commonwealth Electoral Act 1918, s. 164.

[16]Commonwealth Electoral Act 1918, s. 376; and see Ch. on ‘Elections and the electoral system’.

[17]To end 2017: cases of Mr Joyce, see p. 138, and Mr Feeney, see p. 139.

[18]Cases of Mr Entsch, see p. 142, and Mr Baume, see p. 143.

[19]Case of Mr Entsch, see p. 142.

[20] Sykes v. Cleary (1992) 109 ALR 577.

[21]Sue v. Hill (1999) 163 ALR 648. The reasons for judgment stated that the United Kingdom has been a foreign power for the purposes of s. 44(i) since, at the latest, the passage of the Australia Act 1986.

[22]J 2016–18/1599 (8.8.2017), 1630 (9.8.2017), 1788, 1789 (4.9.2017).

[23]VP 2016–18/958 (14.8.2017). This was the first time the House had referred a question on the qualifications of a Member to the Court.

[24]Re Canavan [2017] HCA 45.

[25]Waters, Canada; Ludlam, Joyce, New Zealand; Roberts, Nash, United Kingdom. All had renounced their foreign citizenship prior to court proceedings.

[26]That is, with the votes cast for the disqualified candidate being given to the candidate next in the order of the voter’s preference.

[27]Having renounced his other citizenship Mr Joyce stood again and was elected.

[28]Each held British citizenship by descent: Senator S. Parry (Tas.) (President of the Senate); Senator J. Lambie (Tas.); Senator S. Kakoschke-Moore (S.A.); Member for Bennelong, Mr J. Alexander. Mr Alexander was elected at the ensuing by-election.

[29]VP 2016–18/1235 (4.12.2017). A similar resolution was agreed to by the Senate, J 2016–18/2179–80 (13.11.2017).

[30]Referred by House, VP 2016–18/1274–5 (6.12.2017); Mr Feeney’s personal explanation, H.R. Deb. (5.12.2017) 12731; he resigned on 1.2.2018; High Court order dated 23.2.2018, VP 2016–18/1398–9 (26.2.2018).

[31]Referred by Senate, J 2016–18/2471–2 (6.12.2017). Re Gallagher [2018] HCA 17. Following the ruling on 9 May 2018 four Members in comparable circumstances, having held dual British citizenship at the date of their nomination, resigned their seats: Member for Braddon, Ms J. Keay; Member for Fremantle, Mr J. Wilson; Member for Longman, Ms S. Lamb; Member for Mayo, Ms R. Sharkie.

[32]The Court held that the constitutional imperative is engaged when both of two circumstances are present. First, the foreign law must operate irremediably to prevent an Australian citizen from participation in representative government. Secondly, that person must have taken all steps reasonably required by the foreign law and within his or her power to free himself or herself of the foreign nationality.

[33]Re Culleton [No 2] [2017] HCA 4.

[34]J 1974–75/905–6; S. Deb. (9.9.1975) 603.

[35]J 1974–75/905–6.

[36]Odgers, 6th edn, pp. 152–3.

[37]J 1974–75/928.

[38]Sykes v. Cleary (1992) 109 ALR 577. VP 1990–92/1907 (25.11.1992).

[39]Free v. Kelly & Anor, Judgment 11 September 1996, (No. S94 of 1996). Miss Kelly was also ordered to pay two thirds of the petitioner’s costs. A further basis of challenge under s. 44(i), a claim that at the time of nomination Miss Kelly held dual Australian and New Zealand citizenship, was not pursued at the trial of the petition.

[40]For further details and discussion see Odgers, 14th edn, pp. 168–9.

[41]Re Nash [No 2] [2017] HCA 52.

[42]Re Lambie [2018] HCATrans 7 (6 February 2018).

[43]Opinion of Solicitor-General relating to appointment of Senator Gair as Ambassador to Ireland, dated 4 April 1974—see S. Deb. (3.4.1974) 638–9; and see Odgers, 6th edn, pp. 56–7.

[44]And see advice by Australian Government Solicitor, dated 4 March 2005.

[45]Joint Committee on Pecuniary Interests of Members of Parliament, Declaration of interests, Transcript of evidence, Vol. 2, 5 March – 15 April, AGPS, Canberra, 1975, p. 1503.

[46]‘Qualifications of Senator Webster’, Reference to Court of Disputed Returns, PP 113 (1975) 11.

[47]J 1974–75/597 (15.4.1975).

[48]J 1974–75/628–9 (22.4.1975).

[49]J 1974–75/821 (9.7.1975).

[50]In re Webster (1975) 132 CLR 270.

[51]VP 1998–2001/594–607 (10.6.1999); H.R. Deb. (10.6.1999) 6720–35. see also ‘Interpretation of the Constitution or the law’ in Ch. on ‘The Speaker, Deputy Speakers and officers’ for note of Speaker’s decision on the validity of the amendment.

[52]Re Day [No 2] [2017] HCA 14.

[53]H.R. Deb. (5.5.1977) 1598–1610; VP 1977/108–12 (5.5.1977).

[54]H. R. Deb. (5.5.1977) 1598–1608. see also PP 131 (1981) 33–4.

[55]S. Deb. (16.2.1988) 3–16.

[56]In re Wood (1988) 167 CLR 145.

[57]J 1987–90/845 (22.8.1988).

[58]Constitution, s. 42.

[59]Constitution, Schedule.

[60]Advice of Attorney-General’s Department, dated 16 February 1962. The choice of oath or affirmation is not a sure indicator of religious views; some strongly religious Members have chosen to affirm—see Deirdre McKeown, Oaths and affirmations made by the executive and members of the federal parliament since 1901, Parliamentary Library research paper, 2013–14: pp 4–6.

[61]See also Ch. on ‘The parliamentary calendar’.

[62]E.g. VP 2013–16/2 (12.11.2013).

[63]S.O. 4(e).

[64]On the opening day of the 21st Parliament a Member who had not been sworn in entered the House during the election of the Speaker. Having been advised that he could not take his seat until sworn in, he withdrew and was later sworn in by the Speaker, VP 1954–55/8 (4.8.1954).

[65]E.g. VP 2013–16/7 (12.11.2013).

[66]E.g. VP 1987–88/771 (17.10.1988).

[67]E.g. VP 2008–10/517 (15.9.2008).

[68]Advice of Attorney-General’s Department, dated 24 July 1969.

[69]May, 24th edn, p. 154.

[70]VP 1934–36/511–12 (10.3.1936); VP 1951–53/255 (6.2.1952), 257 (7.2.1952).

[71]If the Member is not present the announcement of the return of the writ may be made one or more days before the admission of the Member, e.g. VP 2008–10/513 (15.9.2008), 532 (17.9.2008).

[72]E.g. VP 1993–96/1613 (5.12.1994).

[73]E.g. VP 2008–10/575–6 (25.9.2008).

[74]May, 24th edn, p. 374.

[75]That is, first ever election—election to a different seat is not counted.

[76]E.g. VP 2008–10/452–3 (26.8.2008).

[77]VP 2002–04/708 (6.2.2003).

[78]VP 2013–15/1636 (13.10.2015).

[79]E.g. see H.R. Deb. (25.2.1964) 19; H.R. Deb. (10.3.1964) 415; H.R. Deb. (1.5.1996) 156; H.R. Deb. (14.2.2008) 394.

[80]H.R. Deb. (9.5.1990) 83; H.R. Deb. (17.5.1990) 746.

[81]H.R. Deb. (23.2.1950) 91.

[82]E.g. H.R. Deb. (5.9.1991) 816; H.R. Deb. (11.10.2000) 21235; H.R. Deb. (15.10.2008) 9235; H.R. Deb. (29.9.2010) 159.

[83]H.R. Deb. (25.3.1976) 1046; H.R. Deb. (26.11.1980) 99.

[84]H.R. Deb. (13.4.1954) 364.

[85]H.R. Deb. (16.5.1967) 2166–72; VP 1967–68/116 (16.5.1967).

[86]The time is not limited. Between 2013 and 2016 a limit of 20 minutes was specified, but not strictly enforced.

[87]The rules of relevance have not been enforced on such occasions, and points of order not taken, e.g. H.R. Deb. (24.6.2010) 6540, 6545, 6561.

[88]E.g. VP 2016–18/509 (9.2.2017).

[89]Certain additional considerations relating to Ministers are covered in the Chapter on ‘House, Government and Opposition’.

[90]S.O. 134(b).

[91]May, 24th edn, p. 83.

[92]Joint Committee on Pecuniary Interests of Members of Parliament, Declaration of interests, Transcript of evidence, vol. 1, 30 January–27 February, AGPS, Canberra, 1975, p. 65.

[93]VP 1923–24/179–80 (23.8.1923); H.R. Deb. (23.8.1923) 3380–3.

[94]VP 1923–24/405 (11.9.1924); H.R. Deb. (11.9.1924) 4334–7.

[95]H.R. Deb. (12.12.1934) 1130.

[96]H.R. Deb. (24.11.1948) 3470.

[97]H.R. Deb. (15.11.1951) 2154. For a precedent of a Member declaring his interest in a bill before a division is taken see H.R. Deb. (3.11.1977) 2817.

[98]VP 1957–58/282 (21.11.1957); H.R. Deb. (21.11.1957) 2447–9.

[99]VP 1958/30 (19.3.1958); H.R. Deb. (19.3.1958) 478–9.

[100]H.R. Deb. (2.11.2006) 60.

[101]Superannuation Legislation (Commonwealth Employment) Repeal and Amendment Bill 1998, Schedule 11. In the event the only divisions (from which the Member abstained) occurred on opposition second reading and detailed stage amendments, VP 1998–2001/110–113 (1.12.1998).

[102]VP 1983–84/945–6 (8.10.1984); Report relating to the need for oral declarations of interests by Members, PP 261 (1988) 8; VP 1987–90/961 (30.11.1988).

[103]E.g. H.R. Deb (16.12.1992) 3940; H.R. Deb. (9.8.2007) 125 (Main Committee).

[104]See May, 24th edn, pp. 80–2.

[105]Joint Committee on Pecuniary Interests of Members of Parliament, Declaration of interests, PP 182 (1975) 46.

[106]Committee of Inquiry into Public Duty and Private Interest, Report, PP 353 (1979).

[107]At pp. 146–7 of the 4th edition.

[108]H.R. Deb. (25.10.1950) 1391–405; H.R. Deb. (26.10.1950) 1546–56.

[109]May, 24th edn, p. 257.

[110]H.R. Deb. (8.3.1951) 175; VP 1950–51/323 (13.3.1951); H.R. Deb. (13.3.1951) 329–30.

[111]VP 1951–53/65–6, 68–70 (10.7.1951); H.R. Deb. (10.7.1951) 1211–12.

[112]VP 1954–55/133–4 (28.10.1954), 246 (2.6.1955); H.R. Deb. (28.10.1954) 2467–8.

[113]May, 24th edn, p. 79. The resolution was strengthened in 2002 to include approaches to Ministers and public servants.

[114]Prior to 2008 the Committee of Members’ Interests was separate from the Committee of Privileges.

[115]Resolutions of 9 October 1984 a.m., and modified by the House on 13 February 1986, 22 October 1986, 30 November 1988, 9 November 1994, 6 November 2003 and 13 February 2008 (a.m.). The terms of the resolutions are reproduced as an attachment to the Standing Orders.

[116]Commonly the Deputy Clerk.

[117]Copies of notifications received after the last presentation in a Parliament and before dissolution have also been presented, by leave—e.g. VP 2008–10/168 (17.3.2008).

[118]VP 1983–84/945–6 (18.10.1984); H.R. Deb. (9.10.1984) 1876–9.

[119]H.R. Deb. (26.3.2007) 39, 123. see also H.R. Deb. (19.9.1994) 1039.

[120]H.R. Deb. (21.6.1995) 1983–4.

[121]H.R. Deb. (23.10.2008) 10184.

[122]H.R. Deb. (4.12.2008) 12725.

[123]VP 2010–13/236 (23.11.2010).

[124]Standing Committee of Privileges and Members’ Interests, Draft code of conduct for Members of Parliament, discussion paper, November 2011. The text of the draft code was reproduced in the sixth edition, pp. 148–9.

[125]Constitution, ss. 48, 66 (in s. 48 the payment to Members and Senators is referred to as an allowance).

[126]May, 24th edn, p. 52.

[127]Parliamentary Business Resources Act 2017, s. 14.

[128]Parliamentary Business Resources Act 2017, s. 7.

[129]See also section on ‘Leaders and office holders’ in Ch. on ‘House, Government and Opposition’. Additional salaries for shadow ministers and the Manager of Opposition Business commenced in 2011, see Remuneration Tribunal, Review of the remuneration of Members of Parliament: initial report, December 2011.

[130]The Parliamentary Business Resources Act 2017 sets the total annual sum payable under section 66 of the Constitution for ministerial salaries (s. 55) which amount may be varied by regulation, (s. 61). The Remuneration Tribunal advises the Government on, but does not determine, the additional salary payable to Ministers, Parliamentary Business Resources Act 2017, s. 44. See section on ‘Ministerial salaries’ in Ch. on ‘House, Government and Opposition’.

[131]Parliamentary Business Resources Act 2017, s. 14(4).

[132]www.remtribunal.gov.au.

[133]Pursuant to s. 64 of the Constitution a Minister may continue in office (for up to 3 months) although no longer a Member.

[134]Review Committee, An independent parliamentary entitlements system, Report, 22 February 2016.

[135]Minister for Finance, Media release, 23 March 2016.

[136]Parliamentary Business Resources (Consequential and Transitional Provisions) Act 2017.

[137]Independent Parliamentary Expenses Authority Act 2017.

[138]Parliamentary Business Resources Act 2017, s. 25.

[139]Parliamentary Business Resources Act 2017, s. 26.

[140]Parliamentary Business Resources Act 2017, s. 27.

[141]Parliamentary Business Resources Act 2017, s. 33.

[142]Parliamentary Business Resources Act 2017, s. 45.

[143]Parliamentary Retirement Travel Act 2002, (entitlements for other former parliamentarians were abolished in 2017).

[144]Parliamentary Business Resources Act 2017, s. 41. Prior to 2016 compensation was by means of ex gratia cover.

[145]See 4th edn, pp. 151–2. However, the Remuneration Tribunal can determine that a proportion of a current salary is not to be counted for the purposes of the 1948 Act.

[146]Parliamentary Contributory Superannuation Act 1948, s. 22.

[147]Under the Act: for a superannuation order to be applied for the person must be convicted and sentenced to a term of imprisonment longer than 12 months (s. 17); sentence does not include a sentence that is wholly suspended (s. 2). The provision was relevant in respect of Mr A. Theophanous, a former Member convicted of corruption committed while a Member (on 22.5.2002).

[148]S.O. 25.

[149]S.O. 27(c). The entry also indicates if an absent Member has been granted leave.

[150]S.O. 26(a).

[151]E.g. VP 2004–07/142 (8.2.2005) (maternity/paternity); VP 2010–13/1828 (19.9.2012) (parliamentary business overseas); VP 2013–16/410 (24.3.2014) (ill health). Leave has been granted for urgent private business, H.R. Deb. (17.10.1935) 833. Speaker Holder ruled in 1906 that leave of absence may be asked for any reason whatever, but that it is for the House to determine whether it shall be granted, H.R. Deb. (18.7.1906) 1430–31.

[152]E.g. VP 2004–07/648 (10.10.2005).

[153]VP 1943–44/29 (8.10.1943); VP 1944–45/21 (1.9.1944); VP 1945–46/37 (23.3.1945); VP 1945–46/260 (26.9.1945).

[154]S.O. 26(b).

[155]VP 1948–49/13 (3.9.1948).

[156]S.O. 2.

[157]E.g. VP 1977/261 (8.9.1977); VP 1998–2001/1610 (29.6.2000); VP 2008–10/447 (26.8.2008); VP 2013–16/310 (24.2.2014).

[158]Constitution, s. 33; see also Ch. on ‘Elections and the electoral system’.

[159]S.O. 18(a). E.g. VP 1996–98/489 (16.9.1996).

[160]Constitution, s. 37. See VP 1980–83/77 (24.2.1981) for examples of both methods.

[161]Advice of Attorney-General’s Department, dated 19 May 1964.

[162]Advice of Attorney-General’s Department, dated 4 March 1981.

[163]Advice of Attorney-General’s Department, dated 26 February and 9 March 1960.

[164]Opinion of Attorney-General, dated 3 August 1977.

[165]Constitution, s. 38.

[166]Opinion of Senior General Counsel, Attorney-General’s Department, dated 22 June 1995. The advice had been sought by the Clerk of the House in response to a Procedure Committee recommendation that the matter be clarified—Standing Committee on Procedure, Time for review: bills, questions and working hours, PP 194 (1995) 17. As noted in the opinion, the Main Committee [i.e. Federation Chamber] was in effect a Committee of the Whole House. And see H.R. Deb. (8.6.1994) 1671; H.R. Deb. (1.4.2004) 28009; (11.5.2004) 28145; H.R. Deb. (19.6.2008) 5462.

[167]Opinion of Solicitor-General, dated 13 September 1935.

[168]VP 1978–80/1694 (18.9.1980).

[169]E.g. VP 2010–13/2206 (21.3.2013).

[170]J 1903/211 (13.10.1903).

[171]In practice a seconder is not called for the party leader’s motion.

[172]High Court ruling inAlley v. Gillespie [2018] HCA 11, the first, and so far only, suit pursuant to the Act (see p. 142). The court ordered the plaintiff’s proceedings be stayed until the question whether the defendant was incapable of sitting was determined.

[173]Vardon v. O’Loghlin (1907) 5 CLR 201 at 208.

[174]The most recent references to deaths of sitting Members are: Hon. R. F. X. Connor, VP 1977/235 (23.8.1977); Hon. F. E. Stewart, VP 1979/747 (1.5.1979)—House adjourned to next day of sitting; Hon. E. L. Robinson, VP 1980–83/77–8 (24.2.1981); Mr G. S. Wilton, VP 1998–2001/1531 (19.6.2000); Mr P. E. Nugent, VP 1998–2001/2261 (10.5.2001), 2263–4 (22.5.2001)—death announced at the special sitting in Melbourne, condolences when House next met in Canberra; Mr D. J. Randall, VP 2013–16/1472 (10.8.2015). See also ‘Motion of condolence’ in Chapter on ‘Motions’, and ‘Adjournment of the House for special reason’ in Chapter on ‘Order of business and the sitting day’.

[175]E.g. VP 2005–07/1833 (8.5.2007).

[176]Advice of Attorney-General’s Department, dated 10 January 1968.

[177]VP 1968–69/2 (12.3.1968).

[178]VP 1920–21/431–2 (11.11.1920); H.R. Deb. (11.11.1920) 6382–3.

[179]VP 1920–21/433 (11.11.1920).

[180]H.R. Deb. (24.7.1901) 2939.

[181]H.R. Deb. (6.7.1951) 1134.

[182]H.R. Deb. (21.10.1965) 2058.

[183]Members of 1st Parliament of the Commonwealth—Title of ‘Honourable’, PP 21 (1904).

[184]See also Ch. on ‘House, Government and Opposition’ (case of Senator Sheil).

[185]Since 2000 Parliamentary Secretaries have been technically ‘Ministers of State’ for constitutional purposes and thus automatically appointed.

[186]See earlier editions for further detail.

[187]If they so chose—Members of the Australian Labor Party generally did not become Privy Councillors and the practice was not reintroduced in 1996 following the election of the Howard Government. The last Member to hold this title was the Rt Hon. I. McC. Sinclair (retired 31.8.1998). Mr Sinclair and the Rt Hon. Sir Billy Snedden were both Privy Councillors before becoming Speaker.

[188]PP 20 (1972).

[189]VP 1970–72/1013 (18.4.1972).

[190]H.R. Deb. (17.2.1977) 172; see also Senate House Committee, Senators’ dress in the Senate Chamber, PP 235 (1971).

[191]H.R. Deb. (8.9.1983) 573.

[192]H.R. Deb. (11.3.1999) 3787–88, VP 1998–2001/396 (11.3.1999).

[193]H.R. Deb (13.9.2005) 16–17.

[194]H.R. Deb. (26.2.1959) 318.

[195]H.R. Deb. (17.2.1977) 172.

[196]H.R. Deb. (23.3.1950) 1197–8.

[197]H.R. Deb. (10.3.1926) 1476.

[198]H.R. Deb. (6.11.1973) 2791.

[199]H.R. Deb. (24.10.1952) 3742. Smoking is these days prohibited inside Parliament House.

[200]E.g. H.R. Deb. (18.6.2007) 33.

[201]For general rules for Members’ conduct in, and manner and right of, debate see Ch. on ‘Control and conduct of debate’.

[202]H.R. Deb. (8.6.1939) 1530.

[203]H.R. Deb. (25.3.1997) 2881.

[204]H.R. Deb. (28.11.1951) 2832.

[205]H.R. Deb. (4.5.1950) 2227–8.

[206]H.R. Deb. (1.6.2004) 29652–4.

[207]H.R. Deb. (8.6.1955) 1561.

[208]H.R. Deb. (25.7.1974) 695–6.

[209]H.R. Deb. (28.8.2000) 19405, and see H.R. Deb. (17.6.2004) 30785.

[210]H.R. Deb. (11.9.1996) 4060; H.R Deb. (26.11.1997) 11272; H.R. Deb. (13.2.2003) 11782;H.R. Deb. (16.6.2008) 4844.

[211]H.R. Deb. (16.9.2003) 20151.

[212]H.R. Deb. (27.5.2004) 29398–9; H.R. Deb. (18.3.2010) 2917–18, 3011–13—Speaker stated that he would regard a Member found to have used a mobile device to take a photograph during proceedings as having behaved in a most disorderly manner and subject to disciplinary action. The general question of mobile devices was referred to the Committee of Privileges and Members’ Interests, see Appendix 25.

[213]H.R. Deb. (14.9.2006) 87.

[214]VP 2013–16/1243–4 (26.3.2015). The resolution was in response to the Procedure Committee report, Use of electronic devices in the Chamber and Federation Chamber, PP 201 (2014).

[215]Archives Act 1983; VP 2013–16/338 (3.3.2014).

[216]National Library Act 1960; VP 2013–16/485 (26.5.2014).

[217]Parliamentary Contributory Superannuation Act 1948; VP 2013–16/311 (24.2.2014). A trustee who has ceased to be a Member by reason of dissolution or expiration of the House does not thereby cease to be a trustee until he or she ceases to receive a parliamentary allowance.

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