During the course of a Parliament a Member’s place may become vacant by resignation, absence without leave, ineligibility or death. When a vacancy occurs the Speaker issues a writ for the election of a new Member. If the Speaker is absent from the Commonwealth, or there is no Speaker, the Governor-General in Council may issue the writ. The writ may be issued by the Acting Speaker performing the duties of the Speaker during the Speaker’s absence.
A Member may resign his or her seat in the House by writing to the Speaker or, if there is no Speaker or if the Speaker is absent from the Commonwealth, to the Governor-General. The resignation takes effect and the Member’s seat becomes vacant from the time the letter of resignation is received by the Speaker or the Governor-General. The Member cannot specify a future time for the resignation to take effect. To be effective a resignation must be in writing, signed by the Member who wishes to resign, and be received by the Speaker. The receipt by the Speaker of a facsimile or scanned copy of a Member’s letter of resignation, the Speaker having been satisfied as to its authenticity by contact with the Clerk, has been accepted as complying with the requirements—that is, the Speaker must be able to be satisfied that the writing is what it purports to be, namely, the resignation of the Member in question. A resignation by telegram has been held not to be effective. A resignation that is in writing signed by another person at the direction of the Member, where the Member is physically unable to sign the resignation personally but is mentally capable of understanding the nature of the resignation and of authorising that other person to sign it on his or her behalf, would meet the constitutional requirements regarding resignation, provided these facts were able to be established satisfactorily. However, it has been considered that signature should be insisted upon whenever possible in view of the importance of the question, and legal advice should be sought in specific cases if the matter arises in practice.
Absence without leave
A Member’s place becomes vacant if, without permission of the House, he or she does not attend the House for two consecutive months of any session of the Parliament. This constitutional requirement is not met by attendance at a committee of the House, including the Federation Chamber. It could be interpreted that the phrase ‘attend the House’ means attend the House when it is sitting, but in order that the position of Members is not placed in doubt it is normal practice at the end of a period of sittings for a Minister to move ‘That leave of absence be given to every Member of the House of Representatives from the determination of this sitting of the House to the date of its next sitting’. This motion is moved to cover the absence of Members from the House between the main periods of sittings each year. The motion is still moved even though it is known that there will be a dissolution of the House pending an election. On occasion the motion has been debated.
No Member’s place has become vacant because of the Member being absent without leave but, in 1903, the seat of a Queensland Senator (Senator Ferguson) became vacant when he failed to attend the Senate for two consecutive months. The Serjeant-at-Arms, who records the attendance of Members in the House, advises the whip of the relevant party when a Member has been absent for about six weeks. The leader of the Member’s party normally either moves for the House to grant the Member leave of absence or arranges for the Leader of the House to do so. If an absent Member is an independent or has not kept the party whip informed of his or her intentions, then the Serjeant-at-Arms contacts the Member after six weeks’ absence to ensure that the Member is aware of the consequence of an absence from the House without leave for a period of two months.
If a seat became vacant because a Member was absent, the appropriate procedure would appear to be for the Speaker to advise the House of the facts and, depending on the electoral cycle, to inform the House of his or her intention to issue a writ for the election of a Member for the relevant electoral division.
Pursuant to section 45 of the Constitution a Member’s place immediately becomes vacant should he or she become ineligible because of the operation of that section or section 44—see ‘Qualifications and disqualifications’ at page 136.
Penalty for sitting while ineligible
Section 46 of the Constitution states that, until the Parliament otherwise provides, any person declared by the Constitution to be incapable of sitting as a Member shall be liable to pay £100 ($200) to any person who sues for it in a court of competent jurisdiction for each day on which he so sits. The case of Senator Webster (see page 141) prompted the enactment of the Common Informers (Parliamentary Disqualifications) Act 1975, which fixed a maximum penalty of $200 in respect of a past breach and $200 per day for the period during which the Member sits while disqualified after being served with the originating process. The Act also restricts suits to a period no earlier than 12 months before the day on which the suit is instituted. The High Court of Australia is specified as the court in which common informer proceedings are to be brought.
Proceedings under the Common Informers Act are limited to the imposition and recovery of penalty. Whether the Member concerned is disqualified must first be determined pursuant to section 47 of the Constitution or section 376 of the Electoral Act—that is, by the relevant House or by the Court of Disputed Returns pursuant to a referral by that House.
Consequences of Member sitting while ineligible
In an early decision concerning the eligibility of a person chosen to fill a vacancy in the Senate, the High Court noted ‘ … the return is regarded ex necessitate as valid for some purposes unless and until it is successfully impeached. Thus the proceedings of the Senate as a House of Parliament are not invalidated by the presence of a Senator without title.’
The death of a sitting Member is usually announced to the House at the first opportunity on the next day of sitting following the Member’s death. Standing order 49 provides that precedence will be ordinarily given by courtesy to a motion of condolence, which is moved without notice. The motion of condolence is usually moved by the Prime Minister and seconded by the Leader of the Opposition, and may be supported by other Members. Speech time limits do not apply. At the conclusion of the speeches the Speaker puts the question and asks Members to signify their approval of the motion by rising in their places. After a suitable period of silence, the Speaker thanks the House. The sitting of the House is then normally suspended for a few hours as a mark of respect.
On the death of a Prime Minister or senior office holder—for example, a Presiding Officer or party leader—the House traditionally adjourns until the next day of sitting. The House does not normally suspend the sitting following a condolence motion in respect of a sitting Senator but may do so in respect of a Senate Minister.
The practice of the House also ensures that the death of a former Member or Senator is recorded. In cases where a condolence motion is not moved, the Speaker makes brief mention of the death of the former Member and then invites Members to rise in their places as a mark of respect to the memory of the deceased. It is usual for the Speaker to convey a message of sympathy from the House to the relatives of the deceased.
The Speaker normally accepts, as proof of the death of a Member, an announcement in the media or a statement from a source accepted as reliable, such as a member of the family or party. The Speaker has never called for the production of a death certificate before declaring a seat vacant.
In December 1967 Prime Minister Holt was presumed to have died by drowning, although his body was never found. The joint report of the Commonwealth and Victoria police satisfied the Attorney-General and the Secretary of the Attorney’s Department that there was overwhelming evidence that Mr Holt had died by drowning. The Speaker was satisfied beyond doubt that a vacancy had occurred, and consequently declared the seat vacant and issued a writ for the election of a new Member on 19 January 1968.
Section 8 of the Parliamentary Privileges Act 1987 provides that the House does not have power to expel a Member. Before this provision was enacted the House had the power to expel Members derived from the privileges and practice of the UK House of Commons passed to the Australian Parliament under section 49 of the Constitution.
The House of Representatives expelled a Member on one occasion only. On 11 November 1920, the Prime Minister moved:
That, in the opinion of this House, the honorable Member for Kalgoorlie, the Honorable Hugh Mahon, having, by seditious and disloyal utterances at a public meeting on Sunday last, been guilty of conduct unfitting him to remain a Member of this House and inconsistent with the oath of allegiance which he has taken as a Member of this House, be expelled this House.
The speech to which the motion referred was delivered at a public meeting in Melbourne, and concerned British policy in Ireland at that time. The Leader of the Opposition moved an amendment to the effect that the allegations against Mr Mahon should not be dealt with by the House, and that a charge of sedition should be tried before a court, but the amendment was negatived and the original motion was agreed to on division. After the motion of expulsion was agreed to, a further motion was moved declaring the seat vacant which was agreed to on division. Mr Mahon stood for re-election in the resulting by-election but was not successful.