Qualifications and disqualifications
A person is incapable of being chosen or of sitting as a Member of the House of Representatives if the person:
is a subject or citizen of a foreign power or is under an acknowledgment of allegiance, obedience or adherence to a foreign power;
is attainted (convicted) of treason;
has been convicted and is under sentence or subject to be sentenced for an offence punishable by imprisonment for one year or longer under a State or Commonwealth law;
is an undischarged bankrupt or insolvent;
holds any office of profit under the Crown or any pension payable during the pleasure of the Crown out of any Commonwealth revenues (but this does not apply to:
- Commonwealth Ministers
- State Ministers
- officers or members of the Queen’s Armed Forces in receipt of pay, half-pay or pension
- officers or members of the Armed Forces of the Commonwealth in receipt of pay but whose services are not wholly employed by the Commonwealth); or
- has any direct or indirect pecuniary interest in any agreement with the Commonwealth Public Service in any way other than as a member in common with other members of an incorporated company consisting of more than 25 persons.
(Office holders of the Parliament, such as the Speaker and President, do not hold offices under the Crown.)
A Member of the House of Representatives also becomes disqualified if he or she:
takes the benefit, whether by assignment, composition, or otherwise, of any law relating to bankrupt or insolvent debtors; or
directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State.
A Member of either the House of Representatives or the Senate is incapable of being chosen or of sitting as a Member of the other House. Thus, a Member of either House must resign if he or she wishes to stand as a candidate for election to the other House.
Electoral Act provisions
In order to be eligible to become a Member of the House of Representatives a person must:
have reached the age of 18 years;
be an Australian citizen; and
be an elector, or qualified to become an elector, who is entitled to vote in a House of Representatives election.
A person is incapable of being chosen or of sitting as a Member if he or she has been convicted of bribery, undue influence or interference with political liberty, or has been found by the Court of Disputed Returns to have committed or attempted to commit bribery or undue influence when a candidate, disqualification being for two years from the date of the conviction or finding.
A person is disqualified by virtue of not being eligible as an elector, in accordance with section 163 of the Commonwealth Electoral Act, if the person is of unsound mind.
No person who nominates as a Member of the House of Representatives can be at the hour of nomination a member of a State Parliament, the Northern Territory Legislative Assembly or the Australian Capital Territory Legislative Assembly.
Challenges to membership
The House may, by resolution, refer any question concerning the qualifications of a Member to the Court of Disputed Returns. There have been two instances of the House referring a matter to the Court, although other motions to do so have been debated and negatived. The ability of the House to refer such a matter to the Court of Disputed Returns does not mean that the House cannot itself act, and it has done so.
A person’s qualifications to serve as a Member may also be challenged by way of a petition to the Court of Disputed Returns challenging the validity of his or her election on the grounds of eligibility (such petitions may also relate to alleged irregularities in connection with elections—see Chapter on ‘Elections and the electoral system’, and see Appendix 13 for a full listing).
Section 44(i) of the Constitution
The 1992 petition in relation to the election of Mr Cleary (see 44(iv) below) also alleged that other candidates at the by-election were ineligible for election on the ground that, although naturalised Australian citizens, they were each, by virtue of their holding dual nationality, a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power. As the election was declared void the necessity for the Court to rule on the status of these other candidates did not arise, but the matter was addressed in the Court’s reasons for judgment. The justices agreed that dual citizenship in itself would not be a disqualification under section 44(i) provided that a person had taken ‘reasonable steps’ to renounce his or her foreign nationality. The majority of justices found that the candidates concerned in this case had not taken such reasonable steps, as they had omitted to take action open to them to seek release from or discharge of their original citizenships.
In 1998 the election of Mrs Heather Hill as a Senator for Queensland was challenged by petitions to the Court of Disputed Returns. Mrs Hill had been born in the United Kingdom but had become an Australian citizen before nomination. She renounced her British citizenship after the election. The Court ruled that Mrs Hill was at the date of her nomination a subject or citizen of a foreign power within the meaning of s. 44(i) and had not been duly elected.
In July 2017 Mr Scott Ludlam (W.A.) and Ms Larissa Waters (Qld) resigned as Senators, having discovered that they were disqualified on grounds of dual nationality. The Senate referred these cases and that of Senator Matthew Canavan (Qld) to the Court of Disputed Returns, and later also referred the cases of Senator Malcolm Roberts (Qld), Senator Fiona Nash (Qld) and Senator Xenophon (S.A). During these events the House referred the case of the Member for New England, the Hon. Barnaby Joyce MP (Leader of the National Party and Deputy Prime Minister), to the Court of Disputed Returns when Mr Joyce announced he had been advised that, although born in Australia, he was considered by New Zealand law to be a New Zealand national by descent. The Court heard these seven references together. Matters raised in submissions included the possibly different status in relation to s. 44(i) of foreign citizenship by birth and foreign citizenship by descent and the operation of s. 44(i) when a person is unaware of their foreign citizenship.
In its reasons for judgement the Court noted that s. 44(i) draws no distinction between foreign citizenship by place of birth, by descent or by naturalisation. The Court summarised the proper construction of s. 44(i) as follows:
Section 44(i) operates to render "incapable of being chosen or of sitting" persons who have the status of subject or citizen of a foreign power. Whether a person has the status of foreign subject or citizen is determined by the law of the foreign power in question. Proof of a candidate's knowledge of his or her foreign citizenship status (or of facts that might put a candidate on inquiry as to the possibility that he or she is a foreign citizen) is not necessary to bring about the disqualifying operation of s. 44(i).
A person who, at the time that he or she nominates for election, retains the status of subject or citizen of a foreign power will be disqualified by reason of s. 44(i), except where the operation of the foreign law is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented by foreign law from participation in representative government. Where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her citizenship and within his or her power, the constitutional imperative is engaged.
In regard to the seven cases, the Court ruled that:
the Court could not be satisfied, on the evidence before it, that Senator Canavan had been an Italian citizen at the date of nomination;
Senator Xenophon’s status at the date of nomination as a British Overseas Citizen (which did not bestow the rights or privileges of a citizen) did not make him a subject or citizen of the United Kingdom for the purposes of s. 44(i);
in the other five cases, the persons involved had held foreign citizenship at the date of nomination and had been incapable of being chosen or sitting as a Senator or Member by reason of s. 44(i), and the places for which they had been returned were therefore vacant;
the vacant Senate places were to be filled by special counts of the 2016 ballot papers, and a by-election was to be held for the division of New England.
After the Court’s decision an additional three Senators and a Member resigned, having found that they that they were also disqualified on grounds of dual nationality.
Following the above cases, Members were required by a resolution of the House to provide a statement to the Registrar of Members’ Interests in relation to their Australian citizenship and any possible citizenship of another country. Information to be supplied included the birth and citizenship details of the Member, their citizenship at the date of nomination for the 45th Parliament, and steps taken to renounce any other citizenship. Birth details of parents, grandparents and spouse were also required.
After the Citizenship Register was made public two further cases were referred to the Court of Disputed Returns, both involving renunciation of UK citizenship by descent. In the case of the Member for Batman, Mr D. Feeney, no evidence of renunciation of UK citizenship was available to be produced, and he resigned before the court considered his position. Later the court ruled his seat to be vacant by reason of s. 44(1). In the case of Senator K. Gallagher, the Senator had taken action to renounce her UK citizenship before nomination but, because of the time taken to process the matter in the UK, the renunciation had not become effective until after election. The Court ruled that Senator Gallagher was incapable of being chosen or of sitting as a Senator by reason of s. 44(i) of the Constitution when she nominated for election, and there was a vacancy in the Senate for the place for which she was returned. The Court held that the exception provided by the constitutional imperative referred to in Re Canavan (see extract at page 138) did not apply to Senator Gallagher’s situation under British law.
Section 44(ii) of the Constitution
In 2016 the Senate referred the qualification of Mr Rodney Culleton as a Senator for Western Australia to the Court of Disputed Returns. Prior to his nomination for election Mr Culleton had been convicted in his absence in the Local Court of New South Wales for the offence of larceny, making him liable to be sentenced for a maximum term of two years. The court later granted an annulment of the conviction.
The Court of Disputed Returns ruled on 3 February 2017 that, at the date of the 2016 election, Mr Culleton was a person who had been convicted and was subject to be sentenced for an offence punishable by imprisonment for one year or longer, and that the subsequent annulment of the conviction had no effect on that state of affairs. It followed that Mr Culleton was incapable of being chosen as a Senator, and that there was a vacancy in the Senate for the place for which he had been returned.
Section 44(iv) of the Constitution
On 3 September 1975 the Queensland Parliament chose Mr Albert Field to fill a casual vacancy caused by the death of a Senator. A motion was moved in the Senate to have his eligibility referred to the Standing Committee of Disputed Returns and Qualifications on the ground that he was not eligible to be chosen because he had not resigned from an office of profit under the Crown. The motion was defeated and Senator Field was sworn in. A writ was served on Senator Field on 1 October 1975 challenging his eligibility. The Senate then granted him leave of absence for one month. The Senate was dissolved on 11 November and the matter did not come to court.
On 11 April 1992 Mr Philip Cleary was elected at a by-election for the division of Wills. Mr Cleary, a teacher, had been on leave without pay at the time of nomination and polling, but had resigned from his teaching position before the declaration of the poll. A petition to the Court of Disputed Returns disputed the election on the ground that Mr Cleary had held an office of profit under the Crown by reason, inter alia, of his being an officer of the Education Department of Victoria. The Court ruled on 25 November 1992 that Mr Cleary had not been duly elected and that his election was absolutely void. In its reasons for judgment the Court found unanimously that, as a permanent officer in the teaching service, Mr Cleary had held an office of profit under the Crown, that it was irrelevant that he was on leave without pay, and that the section applied to State as well as Commonwealth officers. The majority judgment of the Court was that the word ‘chosen’ in section 44(iv) related to the whole process of being elected, which commenced from and included the day of nomination, and that Mr Cleary was therefore ‘incapable of being chosen’. Mr Cleary was subsequently elected as the Member for Wills at the March 1993 general election.
On 2 March 1996 Miss J. Kelly was elected for the division of Lindsay. At the time of her nomination Miss Kelly had been an officer of the Royal Australian Air Force, although she had, at her request, been transferred to the RAAF Reserve before the date of the poll. A petition to the Court of Disputed Returns challenged the election on the basis of section 44(iv). Before the decision of the Court it became common ground between the parties that Miss Kelly had been incapable of being chosen as a Member of the House of Representatives while serving as an officer of the RAAF at the time of her nomination as a candidate. The Court ruled on 11 September 1996 that Miss Kelly had not been duly elected and that her election was absolutely void. A new election was held for the division and Miss Kelly was elected.
Also in 1996 was the case of Ms J. Ferris, who was elected as a Senator for South Australia. However, between the date of nomination and the declaration of the result Ms Ferris had been employed by a Parliamentary Secretary and, anticipating a challenge under section 44(iv), she resigned before taking her seat. The South Australian Parliament subsequently appointed her to the casual vacancy thus created.
In November 2017 Ms H. Hughes, who had been identified by special count as the candidate to fill the Senate place for which Senator Nash was ineligible under section 44(i) (see page 138), was found ineligible under section 44(iv). After the election she had been employed as a part-time member of the Administrative Appeals Tribunal. The High Court found that because of the disqualification of Senator Nash, the process of choice for the election of a Senator remained incomplete. By choosing to accept the appointment during this period Ms Hughes had forfeited the opportunity to benefit in the future from any special count of the ballot papers.
In February 2018 the High Court ruled that Mr S. Martin, Councillor of the Devonport City Council and Mayor of Devonport, was not incapable (by holding these offices) of being chosen or of sitting as a Senator by reason of section 44(iv).
The view has been expressed that a person who accepts an office of profit under the Crown is disqualified from the date of appointment to and acceptance of the office rather than from the time he or she commences duties or receives a salary.
The provisions of section 44(iv) concerning ‘any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth’ have not been subject to judicial determination. It may be considered that a pension payable under the provisions of an Act of the Commonwealth Parliament would not be caught by the term ‘payable during the pleasure of the Crown’.
Section 44(v) of the Constitution
In 1975 a witness before the Joint Committee on Pecuniary Interests alleged that Senator Webster (a member of the committee) was disqualified from sitting as a Senator under section 44(v), as he was a director, manager, secretary and substantial shareholder in a company which had had contracts with Commonwealth government departments. The chair of the committee wrote to the President of the Senate informing him of the allegation. The President read the letter to the Senate which agreed to a resolution referring the following questions to the Court of Disputed Returns: whether Senator Webster was incapable of being chosen or of sitting as a Senator; and whether Senator Webster had become incapable of sitting as a Senator.
The two questions referred to the Court were answered in the negative. The Chief Justice in his judgment said that the facts refuted any suggestion of any lack of integrity on the part of Senator Webster, or of any intention on his part to allow the Crown to influence him in the performance of his obligations as a member of the Senate and further that there was at no time any agreement of any kind between Senator Webster and the Public Service of the Commonwealth.
On 10 June 1999 a motion was moved in the House—
That the following question be referred to the Court of Disputed Returns for determination, pursuant to section 376 of the Commonwealth Electoral Act 1918: Whether the place of the honourable Member for Leichhardt (Mr Entsch) has become vacant pursuant to the provisions of section 44(v) of the Constitution.
The Attorney-General moved, as an amendment—
That all words after ‘That’ be omitted with a view to substituting the following words: ‘the House determines that the Member for Leichhardt does not have any direct or indirect pecuniary interest with the Public Service of the Commonwealth within the meaning of section 44(v) of the Constitution by reason of any contract entered into by Cape York Concrete Pty Ltd since 3 October 1998 and the Member for Leichhardt is therefore not incapable of sitting as a Member of this House’.
The amendment and amended motion were carried. Attempts to rescind them and to censure the Attorney-General for ‘usurping the role of the High Court in its capacity to act as the Court of Disputed Returns’ were negatived.
Mr Robert Day resigned as Senator for South Australia on 1 November 2016. On 7 November the Senate referred his qualification as a Senator to the Court of Disputed Returns. The Court ruled on 5 April 2017 that, prior to and at the date of the 2016 federal election, Mr Day was a person who had an indirect pecuniary interest in an agreement with the Public Service of the Commonwealth. Premises leased by the Commonwealth for use by Mr Day as his electorate office had been owned by a company indirectly associated with Mr Day and the company had directed on 26 February 2016 that rental payments be made to a bank account owned by Mr Day. By reason of s. 44(v) of the Constitution, Mr Day was therefore incapable of sitting as a Senator on and after that date, being a date prior to the dissolution of the 44th Parliament. Mr Day was incapable of being chosen as a Senator in the 45th Parliament, and there was therefore a vacancy in the Senate for the place for which he had been returned.
In 2017 a suit was brought in the High Court against the Hon. Dr D. Gillespie, MP, under the Common Informers (Parliamentary Disqualifications) Act, in relation to his ownership of a shop leased to an outlet of Australia Post, a government-owned corporation. However, the question of Dr Gillespie’s qualification under section 44(v) was not considered by the court under these proceedings (see page 159).
Section 45(ii) of the Constitution
The interpretation and application of section 45(ii) arose in 1977 in connection with Mr M. Baume, MP, who, before entering Parliament, had been a member of a stockbroking firm which had collapsed. On 5 May 1977 a motion was moved:
… that the question whether the place of the Honourable Member for Macarthur [Mr Baume] has become vacant pursuant to the provisions of section 45(ii) of the Constitution of the Commonwealth of Australia be referred for determination to the Court of Disputed Returns pursuant to section 203 of the Commonwealth Electoral Act.
It was argued that an agreement made by Mr Baume with the appointed trustee of the firm constituted a deed of arrangement or, alternatively, that he received benefits as a consequence of arrangements made by other members of the firm under the Bankruptcy Act. Speaking against the motion the Attorney-General presented three legal opinions, including a joint opinion by himself and the Solicitor-General, to the effect that the matters did not come within the scope of section 45(ii), and stated that the deed executed by Mr Baume was not a deed of arrangement within the meaning of the Bankruptcy Act, not being a deed executed by him as a debtor under the Act as a deed of arrangement. On the question of whether Mr Baume had received benefits under the Bankruptcy Act as a result of deeds executed by other members of the firm, the opinions were to the effect that while benefits had been conferred, these were not the benefits to which section 45(ii) refers, and that the provision applies where a debtor takes benefits as a party to a transaction, as distinct from receiving benefits as a non-participant. The Attorney-General argued that there was no need for the matter to be referred to the Court of Disputed Returns and that the Government wanted it to be decided by the House. The motion for referral was negatived.
There has been no precedent in the House of Representatives of the seat of a Member being vacated because he or she has become bankrupt. Therefore, while a seat is vacated at the instant that the Member is declared bankrupt, the machinery for bringing this fact to the attention of the House is not established. The proper channel of communication would seem to be between the court and the Speaker and this could be achieved by a notification to the Clerk of the House who would then advise the Speaker. The Speaker would then inform the House, if it were sitting, and issue a writ for a by-election following the usual consultations. If the House was not sitting, the Speaker could issue the writ as soon as convenient and not wait for the House to reconvene.
Section 163 of the Commonwealth Electoral Act
Senator W. R. Wood, it transpired, had not been an Australian citizen at the time of his election, as required by subsection 163(1) of the Commonwealth Electoral Act, although he had believed himself to be a citizen and subsequently became one. On 16 February 1988 the Senate referred the following questions to the Court of Disputed Returns:
whether there was a vacancy in the representation of New South Wales in the Senate for the place for which Senator Wood had been returned;
if so, whether such vacancy could be filled by the further counting or recounting of ballot papers cast for candidates for election for Senators for New South Wales at the election;
alternatively, whether in the circumstances there was a casual vacancy for one Senator for the State of New South Wales within the meaning of section 15 of the Constitution.
The decision of the court, handed down on 12 May 1988, was to the effect that there was a vacancy, that the vacancy was not a casual vacancy within the meaning of section 15 of the Constitution, and that the vacancy could be filled by the further counting or recounting of ballot papers. The court held that Mr Wood had not been eligible for election, that a vacancy had existed since the election, and that a recount should be conducted as if Mr Wood had died before polling day but with his name remaining on the ballot paper and attracting votes and with votes cast for him given to the candidate next in the order of the voter’s preference. Following a recount the court declared Ms I. P. Dunn, of the same party as Mr Wood, to be the elected candidate.