Research Paper no.18 2001-02
Candidates, Members and the Constitution
Bob Bennett
Politics and Public Administration Group
28 May 2002
Vision in Hindsight
Vision in Hindsight is a Department of
the Parliamentary Library (DPL) project for the Centenary of
Federation.
The Vision in Hindsight: Parliament and the
Constitution is a collection of essays each of which tells the
story of how Parliament has fashioned and reworked the intentions
of those who crafted the Constitution. The unifying theme is the
importance of identifying Parliament's central role in the
development of the Constitution. A number of essays have been
commissioned and will be published as IRS Research Papers, of which
this paper is the seventeenth.
Eleven of these papers were selected for
inclusion in the final volume, Parliament: The Vision in
Hindsight, G. Lindell and R. Bennett, eds, Federation
Press, Sydney 2001.
A Steering Committee comprising Professor
Geoffrey Lindell (Chair), the Hon. Peter Durack, the Hon. John
Bannon and Dr John Uhr assisted DPL with the management of the
project.

Centenary of Federation
1901-2001
|
Contents
Major Issues
Introduction
Candidates and Members
Then and Now
A Vision?
Frames of Reference
Flexible or Rigid?
'That went as well as could be
expected'
'A Nest of Problems?'
Practicalities
Parliament and the Abuse of Power
Mahon's Expulsion
The Field Affair
Competing Jurisdictions
Unclear Meaning-Problems with Sections 44(i)-44(iv)
An Undue Impediment to Efficient
Government-The Case of Assistant Ministers and Parliamentary
Secretaries
So Broad as to be Devoid of Meaning or so Tight as to be
Ineffectual-Members Contracting with the Government Too Draconian
or Otherwise Unfair
Significant Initiatives and Further
Proposals for Reform
Widening the Net-Modern Controls on
Inappropriate Conduct and Conflicts of Interest
Looking Beyond the Law
Changing the focus
Concluding Comment-A New Vision?
Postscript
Endnotes
Appendix 1
Extracts from the Commonwealth of
Australia Constitution Act 1900
Appendix 2
Table 1: Members of the House of Representatives
who entered Parliament under the age of 26 since 1901
Table 2:Senators who entered Parliament under the
age of 30 since 1901
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)
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?
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.
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:
We should be careful to do all that is possible
to separate the personal interests of a public man from the
exercise of his public duty. We should bear in mind that it is not
only important to secure that as far as we can in actual fact, but,
in every way possible, we should prevent any appearance of the
contrary being exercised.(8)
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:
I think that if we are going to legislate for
the Commonwealth, instead of legislating for the establishment
of the Commonwealth, our discussion will be endless. If any
abuses arise in the Commonwealth it will be perfectly competent for
the Parliament to set them right, and if no abuses arise I think it
would be a pity to limit the choice of the
Executive...(9) [emphasis added]
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:
-
- Were the Founders able to adequately address their own concerns
about the disqualification provisions?
- How has Parliament responded to the strengths and limitations
of the current legal regime?
- Is further reform necessary or possible?
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)
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:
George Dibbs (NSW): We must have some
regard for the common-sense of the people who have to give their
votes for members of parliament ... We may very well trust the
electors to do what is right.
James Munro (Victoria): But the electors
will not know anything about it [i.e. the candidate's criminal
record]!(30)
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)
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:
The disqualifications under sections 44 and 45
[of the Constitution] are of little practical importance, are
riddled with difficulty and do not warrant extended
discussion.(42)
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:
... it is almost compulsory for writers on the
law and law-related subjects to find fault with the existing regime
and to propound reform proposals. It is de rigueur to be
an ardent reformer. An author who suggested that the law on a
particular subject is satisfactory or probably better than any
alternative, and therefore should be left alone, would be regarded
almost as a disgrace to the profession ...
Section 44 is an easy target, both for its
provisions and for the gymnastics performed by the High Court in
interpreting it. It is also an area, however, in which a more
conservative approach is justified.
In the first place, the likelihood of change is
not great. No government would ask electors to spend $60 or $70
million voting in a referendum to make life easier for political
candidates or members of Parliament; it would be a good recipe for
rejection and political unpopularity. If changes were included in a
package of other, more important constitutional alterations, their
presence would be likely to sink the package.(61)
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.
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:
The subject of qualifications and
disqualifications of senators and members is in general not suited
for inclusion in the rigid parts of the constitution. It is
necessarily intricate and technical, and has to operate in relation
to a body of public and private law (for example, statutory
governmental corporations and commercial private corporations) and
to social conditions that are in a constant state of flux. If
general in form, such provisions give rise to numerous problems of
interpretation, and if precise they rapidly become out of date and
irrelevant.(69)
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.
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:
The provisions of the Constitution concerning
the disqualification of members of Parliament are amongst those
most closely studied by members. However, close study does not
necessarily bear fruit, for some of those provisions are archaic
and quite incomprehensible in their terms, leaving the risk of
disqualification hanging like the sword of Damocles over the heads
of members.(79)
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)
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.
Section 47 of the Constitution provides
that:
Until the Parliament otherwise provides, any
question respecting the qualification of a senator or a member of
the House of Representatives, or respecting a vacancy in either
House of the Parliament, and any question of disputed election to
either House, shall be determined by the House in which the
question arises.
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:
The question of whether a court should involve
itself in such a situation cannot be decided by any formal
doctrine; it is partly a question of objective judgment as to the
stability of the polity in question, the relative prestige of the
court and legislature, and the state of rule-consciousness in the
society, and partly a question of the temperament and value system
of the judges.(103)
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.
-
- Under Part XXII, Division 2 of the Commonwealth Electoral
Act 1918, a matter concerning qualifications can be determined
by the relevant House.
- 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.
- 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)
- 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.
- 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:
-
- 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:
shall be incapable of being chosen or of sitting
as a senator or a member of the House of Representatives.
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.
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:
Any person who holds any office of profit under
the Crown, or any pension payable during the pleasure of the Crown
out of any of the revenues of the Commonwealth shall be incapable
of being chosen or sitting as a senator or a member of the House of
Representatives.
It is then subject to the specific exemption
that states that:
But subsection iv. does not apply to the office
of any of the Queen's Ministers of State for the Commonwealth, or
of any of the Queen's Ministers for a State, or to the receipt of
pay, half pay, or a pension, by any person as an officer or member
of the Queen's navy or army, or to the receipt of pay as an officer
or member of the naval or military forces of the Commonwealth by
any person whose services are not wholly employed by the
Commonwealth.
The 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:
[t]he form of the sections (64 and 65) further
suggest that the office [of minister] should only be occupied by
one incumbent ... and but one officer responsible for the
administration of a department.(143)
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:
The division of labour among the Ministers would
I think properly be a matter ultimately for the Prime Minister who
is responsible for advising the Governor-General to make the
appointments. Any officer so appointed could of course participate
in the sum provided by Parliament under s. 66 without incurring any
disqualification under s. 44.(157)
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:
For the Founders of the Constitution to have
descended into greater specificity would have imposed an
unnecessary and inappropriate degree of inflexibility upon
constitutional arrangements that need to be capable of development
and adaptability. The deliberate lack of specificity is
demonstrated by the absence of any reference to such prominent
features of our system of democratic government as the Office of
Prime Minister, or Cabinet.(167)
His Honour also rejected the view that
concurrent appointments would tend to undermine the quality of
responsible government, stating that:
The concept of administration does not require
that there be only one person who administers, and the concept of
responsible government does not require that there be only one
person who answers to Parliament for the administration of a
Department. Under the appointments made by the Governor-General, it
is for the Minister and the Parliamentary Secretary to make their
own arrangements as to the method by which the Department will be
administered. It is for Parliament to determine the procedures by
which those two persons will answer for the conduct of such
administration. To repeat what was said [elsewhere], responsible
government is a concept based upon a combination of law,
convention, and political practice. The characteristics of
responsible government are not immutable. They are certainly
capable of accommodating the arrangements made by the
Governor-General in the present case.(168)
The challenge to the appointment of salaried
parliamentary secretaries under section 64 was dismissed with equal
force.
Sections 44(v) and 45(iii) diminish the power of
governments over ordinary members of Parliament by removing from
the Executive the capacity to offer members inducements in the form
of government contracts, fees or honorariums.
Section 44(v) disqualifies 'any person who has
any direct or indirect pecuniary interest in any agreement with the
Public Service or the Commonwealth otherwise than as a member in
common with other members of an incorporated company consisting of
twenty-five or more persons. Section 45(iii) similarly disqualifies
any senator or member who directly or indirectly agrees to take any
fee or honorarium for services rendered to the Commonwealth. The
provisions were considered extensively during the Convention
debates,(169) and gave rise to the celebrated
Webster case in 1974.(170)
However, as Professor Carney has noted, the
disqualification of government contractors has not attracted the
same degree of attention or concern in recent times as the
disqualification of holders of offices of profit under the
Crown.(171) Indeed, it is interesting that the
equivalent disqualification provision in the United
Kingdom(172) was repealed in 1957 on the ground that
there (allegedly) had been no abuse by members involving government
contracts for over 100 years.(173)
There is no reason to believe that members of
the Australian Parliament have lower ethical standards than their
UK counterparts. It is not surprising then that only one case
regarding members and such conflicts of interest has come before
the courts in the past century. That said, sections 44(v) and
45(iii) are far from being dead-letters and have been the focus of
parliamentary and curial attention several times since
Federation.(174)
On 22 April 1921, it was alleged in the House
that Prime Minister Hughes ought to be disqualified under section
45(iii) for accepting a gift of 25 000 pounds as a tribute to his
wartime leadership.(175) As Professor Sawer reported,
Hughes survived, successfully contending that the section only
covered honoraria accepted for the discharge of official duties to
the Parliament or the Government, not gifts for general service to
the nation.(176)
On 18 June 1924, the House of Representatives
debated whether two members, Arthur Manning (Nationalist,
Macquarie, NSW) and William Killen (Country Party, Riverina, NSW),
both farmers, had breached section 44(v). Each was a member of a
government body, the Australian Meat Council, and had signed
cheques on the government account payable to that industry. The
House defeated a motion that Manning and Killen were in breach of
section 44. The majority accepted the advice of the
Attorney-General Littleton Groom (National, Darling Downs, Qld)
that a member did not contravene the provision where they derived
some indirect benefit because they were part of a group that had
benefited from government policy.(177)
On 2 February 1952, Garfield Barwick QC provided
private advice to Mr Roy Wheeler (Liberal, Mitchell, NSW) to the
effect that the latter had not infringed section 44(v) of the
Constitution. In that matter, a company in which Wheeler was a
major shareholder had transacted significant business with a number
of government bodies-principally the Snowy Mountains
Authority.(178)
More recently, and as discussed earlier, the
House of Representatives defeated a motion moved by the ALP to have
a question concerning the possible disqualification of the Hon.
Warren Entsch (Liberal, Leichhardt, Qld) referred to the High Court
under section 376 of the Commonwealth Electoral Act 1918.
It was alleged that Mr Entsch held a significant interest in a
company that had performed work for the Department of
Defence.(179)
The Webster case, however, is by far
the most significant and remains something of a landmark in matters
concerning candidates and members qualifications. This is both
because it is unique-no similar matter has come before the
Commonwealth courts-but also because many commentators believe that
Chief Justice Barwick construed the sections too narrowly and then
compounded his error by incorrectly applying the law to the facts
of the case.(180) Errors, it has been said, that were
further compounded by His Honour not referring the matter to the
Full Court for determination.(181)
Senator James Webster (Country Party, Victoria)
was one of nine shareholders in a family company that had had
business dealings with two government Departments. Webster was not
only a shareholder in the company but also the managing director,
secretary and the manager. His remuneration, however, was not
related to the level of company profits. Webster's election to the
Senate in May 1974 was challenged in the Chamber on the basis that
his conduct infringed, albeit unwittingly, section 44(v) of the
Constitution. The Senate voted to refer two matters to the Court of
Disputed Returns. First, whether at the time of the May 1974
election Webster was capable of being chosen as a senator and
secondly, whether after his election he had, because of his
company's business dealings with the Commonwealth, become incapable
of sitting as a senator. The Court, Chief Justice Barwick sitting
alone, held that Webster was not disqualified, principally because
the company's contracts with the government were not of an ongoing
nature. His Honour also concluded that Webster had not infringed
section 44(v) because he had not derived a pecuniary benefit from
the agreement. This argument is a highly technical one, founded on
the proposition that shareholders do not at law acquire a pecuniary
interest in a contract entered into by a firm of which they are
merely a member. Thirdly, Barwick CJ found that section 44(v) was
only designed to protect Parliament from the executive and not to
stop individuals making a private gain out of their public
office.(182) The latter two aspects of Barwick CJ's
judgment appear to be at odds with the intentions of the
Founders(183) and serve to further narrow the scope of
the provision to the point where it is practically
useless.(184) To quote one early commentator:
... the decision in Webster's case has rendered
[section 44(v)] almost useless as a check upon would-be fraudulent
politicians.(185)
The key to Barwick CJ's decision in Re
Webster, and contemporary commentary on it, is the assumption
that the words of section 44(v) cannot be given their literal
meaning.(186) As various writers have suggested, a
literal approach would lead to the disqualification of any member
who so much as agreed to purchase a postage stamp as that would
constitute a contract with the Commonwealth.(187) From
this starting point, Barwick CJ reasoned that the sorts of
agreement or contract to which section 44(v) referred had to form
part of an ongoing relationship which was likely to influence a
member's conduct. Barwick CJ, relying on not entirely apposite
English authorities, concluded that once a contract was complete it
could have no likely bearing on a member's future actions. The
Chief Justice's approach, however, is questionable.(188)
There is no reason for automatically concluding that a contract,
although fully executed, can never influence an individual's future
course of conduct-especially where there is the prospect of new
contracts or agreements at some time in the future.
In defending the conduct of its Parliamentary
Secretary for Industry, Science and Resources, the Hon. Warren
Enstch, the Government followed much the same approach taken by
Barwick CJ in Webster. This was notwithstanding the advice
offered to it by the acting Solicitor-General which embraced the
earlier decision with less than total enthusiasm.(189)
The Government argued that the section could only apply where there
was an ongoing contract or agreement and that relationship could
influence how the member performed his parliamentary duties. The
section was in the interests of practicality to be construed
narrowly and mere appearance of a conflict of interest was not
considered a relevant or determinative consideration. Underpinning
this reading of the provisions was a contention-not strictly
derived from the wording of section 44(v)-that it would be unfair
to disqualify a member where the breach was inadvertent or
unwitting.(190)
Most commentators have taken a different view of
the provision. Most have conceded that it is necessary to read down
section 44(v) to avoid hard cases. However, the approach adopted in
Webster is seen as simply too narrow, reducing an
impossibly wide prohibition to one of marginal import that robs the
section of its efficacy.(191)
This suggests that a regimen is needed that
protects Parliament from excessive Executive influence and also
punishes those who place private profit ahead of public duty. In
applying section 44(v), Professor Carney has suggested that the
primary focus should be whether:
... the agreement, irrespective of its subject
matter, creates the impression that the member has allowed his or
her personal interests to benefit from the government contract to
such an extent that it impairs public confidence in the member's
capacity to act solely in the public interest? (192)
In other words, whatever test or standard is to
be applied it must look to practicalities. Those benefiting from a
direct or indirect relationship with the Government should no
longer be able to shelter behind a highly technical legal
construction of section 44(v) as adopted by Barwick CJ in
Webster.
But that is the easy bit. A second and arguably
more difficult task for reformers is finding the practical means
for achieving their end. Whatever changes, if any, are to be made
must be tempered by other considerations.
Enthusiasts for 're-arming' 44(v) need to take
into account that the present provision-like its now repealed UK
counter-part-was devised before Westminster systems of government
came to be dominated by highly disciplined political parties. Rigid
party discipline and adversarial politics and all that that these
entail make sections 44(v) and 47 potent weapons in the hands of a
majority in either House. Safeguards may need to be considered to
prevent harsh or draconian action against individual members. Those
wanting to breathe new life into section 44(v) or replace it with
something sterner may also want to think about the wisdom of
placing some limits on how and when such a provision may be called
into play. It would be desirable that any move away from the
standard set by Webster to something more demanding should
be achieved by careful deliberation and with bipartisan agreement.
This probably entails legislative and further constitutional change
that is, unless the opportunity presents itself for the High Court
to distinguish or overrule Webster and put in its place a
suitable alternative. Otherwise, the Houses generally, and despite
their best efforts,(193) will continue to deal with such
matters on the run and in the heat of the moment. The latter
approach will almost inescapably give rise to charges of
partisanship that must taint the outcome, however just or
reasonable. What may have been intended as a demonstration of
political probity may well end up being widely regarded as just
another manifestation of the endless search for partisan
advantage.
Popular prejudice notwithstanding, not many
parliamentarians break the law and an even smaller percentage
suffer the shame or the inconvenience of being sent to prison. For
instance, only one federal Member of Parliament has ever been
convicted of bribery.(194) Indeed, a good proportion of
federal MPs over the years imprisoned were 'banged up' on account
of 'political' offences that arguably had little to do with their
fitness for public office. For example, former ALP Senator George
Georges (Queensland) was imprisoned on a number of separate
occasions in the 1970s and 1980s for taking part in political
protests. These involved non-violent protests in support of freedom
of assembly and against laws that many would say have no place in a
liberal democracy.(195) Former WA Greens Senator Jo
Vallentine also was gaoled more than once for engaging in peaceful
protest action.(196)
Instances of members being brought down or
careers being curtailed by the ordinary criminal law are rare but
seem to be on the rise. In the last decade, four members would have
been subject to the provisions if they had not first left
Parliament or lost office.(197) Two other members
comparatively recently have risked losing their seats because of
possible convictions for offences carrying prison sentences of at
least 12 months.(198)
Sections 20 and 38 of the Constitution are
relevant where a member is found guilty of an offence that carries
a term of imprisonment of less than 12 months and a prison
term is actually imposed. In such cases, although the member may
not be disqualified under section 44(ii), they may lose their seat
because they are unable to attend Parliament. Disqualification in
these circumstances may depend on the relevant House's sitting
pattern and on when the prison term is to be served. For instance,
a member gaoled for three or four months over the winter or
Christmas recesses would probably not miss enough sitting time to
be subject to disqualification. A member gaoled in early February
may have to rely on the relevant House's goodwill to avoid having
their seat declared vacant.
A member who lost his or her seat in Parliament
on account of a criminal conviction could in a very real sense be
said to have incurred a double penalty: first, the sanction
attaching to the offence committed and second, the loss associated
with their removal from Parliament. Accordingly, it is all the more
important to ensure that the sanctions imposed and the way they are
determined accord with basic notions of fairness.
As discussed above, the means for determining
whether a member should be disqualified from sitting may be subject
to partisan manipulation. Regarding process generally, however, the
potential for mischief is constrained by Parliament's own good
sense but also by the supervisory role that the High Court is able
to play principally by virtue of the Common Informers
(Parliamentary Disqualifications) Act 1975.
The position in relation to some substantive
issues is more troubling.
Section 44(ii) speaks of two separate types of
offence that may give rise to possible disqualification. The first
limb of section 44(ii) disqualifies any person 'attainted of
treason'.(199) This limb of section 44(ii) has attracted
little criticism although it has been suggested that it be amended
to permit persons who have been pardoned subsequently to stand for
office.(200) The second limb of section 44(ii) deals
with senators and members who are found guilty during their time in
office of committing an offence which is punishable by a term of
imprisonment of 12 months or more. This latter provision took
several forms when debated during the Constitutional Conventions in
1891 and 1897-98 and enjoyed strong but less than unanimous
support.(201) In reviewing this provision in 1981, the
Senate Standing Committee on Constitutional and Legal Affairs
concluded:
3.14 ... This provision is based on the view
that someone who has been found guilty of a serious offence is not
a fit and proper person to seek or hold parliamentary office while
he is under sentence.
3.15 While we are in no doubt that this purpose
remains valid, we are by no means certain that s 44(ii) is still
the most effective way to achieve it.(202)
Clearly there are problems with section 44(ii).
As the Senate Committee concluded, making a given term of
imprisonment the barrier to membership of the Parliament sets up a
somewhat arbitrary and dated measure of what constitutes a 'fit and
proper person'.(203) And arguably although this
arbitrariness was intentional, it is the very lack of precision in
the drafting of section 44(ii) that is now its most conspicuous
fault.
Section 44(ii) was seriously tested in the 1980s
in connection with an ongoing dispute between two relatively minor
but bitterly opposed groupings on the Australian political scene.
In Nile v Wood,(204) the High Court, sitting as
the Court of Disputed Returns, was asked to invalidate the election
of Senator Robert Wood because of several past convictions that
carried a term of imprisonment. In each case the respective
sentence had been completed well before Mr Wood's purported
election to the Senate in 1987. In this instance the Court found in
favour of Mr Wood, holding that section 44(ii) only acted to
disqualify those under a current sentence.
However, as has been the pattern in such
instances involving the Court, and as with disputes centring on
sections 44(i) and (iv), the section 44(ii) litigation involving Mr
Wood and Mrs Nile left important questions unanswered. Principally,
these concern matters of timing and the immediate consequences of a
member having become 'subject to be sentenced, for any offence
punishable ... by imprisonment for one year or longer'. Does this
mean, for instance, that disqualification is automatic at the time
a conviction is entered? Section 45(i), which provides that any
member who becomes subject to a disability mentioned in section 44
thereupon loses his or her seat, seems to suggest that
disqualification is not only instantaneous but also automatic. On
that reading, section 44 is self-executing. However, there are
sound reasons for concluding that that may not be so. The
'architecture' of sections 44 to 47 suggest that although the date
on which the seat is to be vacated is the day that an offending
member is convicted, the actual decision as to any disqualification
still resides with the relevant House or the High Court. Moreover,
if disqualification were to be both automatic as well as
instantaneous, a member would lose their seat even though they had
not fully exercised their appeal rights in respect of the criminal
conviction that had placed their membership of the Parliament at
risk.
As the Founders did not particularise the actual
offences that would incur disqualification,(205) the
penalty that may be imposed becomes the primary issue and not the
degree of wrongdoing. Accordingly, it is possible for a member to
be disqualified for a trivial breach of a law that carries an
excessive maximum penalty. Moreover, as most criminal prosecutions
arise under State and Territory and not federal law, a member
convicted of an offence in a given State may stand to lose his or
her seat under section 44(ii) but another member convicted of the
same offence in another State might not. Within the same
jurisdiction there may be multiple penalty regimes covering similar
conduct. Whether a member is exposed to the risk of losing his or
her seat may therefore depend on how the relevant State crown law
officers elect to proceed (if indeed they decide to proceed via
courts at all). In such cases, any legal/administrative action, and
not necessarily the moral blameworthiness of the alleged offender,
becomes the critical determinant.(206)
In calling for the repeal of the second limb of
section 44(ii), the Senate Committee noted that the provision's
utility as a yardstick for determining fitness for office had been
largely subverted by modern sentencing regimes. The latter are
structured differently from those prevalent in the late 1890s,
commonly providing for the handing down of suspended sentences and
the conditional discharge of offenders.
Other rules governing members' qualifications
have to date proven less contentious. For instance, the Founders
provided that no person could be simultaneously a member of both
Houses (section 43). Nor can a person sit in either Chamber whilst
an undischarged bankrupt or insolvent (section 45(iii)). Together
with the provisions already discussed, these formed part of what
might anachronistically be termed the 'anti-corruption provisions'
of the Constitution. Not that it was the intention of the Founders
to compose a comprehensive code of conduct for members. They
deliberately stopped short of prescribing anything either so grand
or exhaustive. To the extent that such an undertaking would have
occurred to them at all, there was strong resistance to the idea
that the Constitution itself ought to set down immutable rules for
constituting the membership of the Parliament. The Founders saw
themselves providing the foundations and the building blocks but
Parliament was to complete the edifice and any necessary
renovations as and when the need arose.
To briefly recapitulate, during its first seven
years the Parliament did in fact make significant changes to the
way in which both disputed elections and qualifications
controversies were handled. In 1902, the Court of Disputed
Returns(207) was created(208) and disputes
over the conduct of elections were transferred from Parliament to
the Court.(209) The 1902 legislation also added a
further qualification for membership, prohibiting members of State
Parliaments from standing for election to the House of
Representatives or the Senate.(210)
After the near debacle of the O'Loghlin/Vardon
affair in 1907, the Senate Committee on Elections and
Qualifications fell into disuse and has not been re-appointed since
the mid-1980s. Its House of Representatives equivalent did not
survive the first ten years of Federation.
In 1918 the Parliament enacted a major
consolidation of Commonwealth electoral law, the Commonwealth
Electoral Act 1918. At the time few substantive changes were
made to the law regulating disputed returns or
qualifications.(211) The consolidated Act did, however,
provide that persons of unsound mind were not entitled to stand for
election to either House.(212)
Following an attempt by the State Parliaments to
effectively nullify section 70 of the Commonwealth Electoral Act
which required State members to resign their seats within 14 days
before nominating for a federal seat, the Commonwealth Parliament
passed the Commonwealth Electoral Act 1921. New section 70
blocked a State ploy to provide an automatic right of return to any
member of a State parliament who had resigned his or her seat to
contest a federal poll but was unsuccessful. As a paramount law,
the Commonwealth Electoral Act effectively covers the field and
thereby denies the States the right to legislate in respect of
membership of the Commonwealth Parliament. (This approach was
recently confirmed by the Queensland Court of Appeal. The Court
invalidated a Queensland Law that sought automatically to unseat
local government councillors who stood for election to the
Commonwealth Parliament. A majority of the Court held that the
Commonwealth has exclusive power to legislate on such
matters. All three judges agreed that once a Commonwealth law had
been enacted, any inconsistent law enacted by a State could be
rendered invalid by virtue of section 109 of the Commonwealth
Constitution.(213))
The Commonwealth Electoral Act 1925
replaced section 69 of the 1918 legislation and ended the reliance
on sections 16 and 34 of the Constitution to define members'
qualifications-disqualification continued to be exclusively
governed by sections 44 and 45 of the Constitution. The new section
69 also made few substantive changes to the former law in effect
re-enacting the constitutional requirements that members must
be:
-
- 21 years of age
- a subject of the King either natural born or for at least 5
years naturalized under a law of the United Kingdom or the
Commonwealth
- an Australian resident of at least 3 years standing at his or
her time of election, and
- an elector entitled to vote for the House of Representatives or
qualified to become such an elector or a person living in the
Territory for the Seat of Government and who had lived there for a
period of at least one month.
A Royal Commission on the Constitution was
appointed by the Governor-General on the advice of the Bruce-Page
Government on 18 August 1927 to report on the:
... powers of the Commonwealth under the
Constitution and the working of the Constitution since federation.
(214)
The Royal Commission barely considered members'
qualifications and its only relevant recommendation was that
section 44(iv) not be amended to allow government workers to stand
for election to either House without first resigning from the
public service or any other 'office of profit under the
crown'.(215)
The Commonwealth Electoral Act 1949
made two small changes to the qualification
requirements.(216) First, the words 'British Subject'
replaced 'subject of the King'. This brought section 69 of the
Commonwealth Electoral Act into line with the terminology used in
the Nationality and Citizenship Act 1948. Secondly, the
redundant words 'natural-born or naturalized' were dropped. Thus
after the 1949 amendments, the minimum citizenship requirements for
candidates were the same as those for voters. The changes meant
that candidates had to be a British subject, have lived
continuously in Australia for six months,(217) and had
to have been a resident for three years at the time of nominating
for election.(218)
Linking the enrolment and nomination provisions
of the Commonwealth Electoral Act, in effect, extended the list of
disqualifications,(219) and included a specific
provision disqualifying persons of unsound mind from standing for
Parliament.(220)
The Joint Parliamentary Committee on
Constitutional Review, established on the motion of Prime Minister
Menzies on 24 May 1956, although handed an open brief to review the
workings of the Constitution,(221) did not examine the
provisions dealing with members' qualifications.
In 1973 the voting age was lowered to
18(222) and with it the minimum age for nominating as a
candidate.(223) The impact of the change has been fairly
negligible. No eighteen year old has been elected to the federal
Parliament. Indeed, the youngest member elected to the House of
Representatives was aged 22 years and 2 months(224) at
the date of their election. The youngest person elected to the
Senate was aged 26 years and 5 months.(225) Only 10
persons aged 26 or under have been elected to the House of
Representatives while only 8 persons under the 30 years of age have
become Senators since Federation.(226)
By the 1970s, legislators worldwide were under
added pressure to disclose their private interests. In Australia
demands for greater accountability and openness coincided with the
'rediscovery' of sections 44 and 45 of the Constitution.
On 31 October 1974, a Joint Parliamentary
Committee on Pecuniary Interests was established under the
Chairmanship of the Hon. Joseph Riordan (ALP, Phillip, NSW). The
Riordan Committee was asked to report on whether arrangements
should be made to provide for the declaration of the interests of
members and senators. In reaching its conclusions the Riordan
Committee noted that:
As a result of a recent judicial interpretation
of section 44(v) of the Constitution, doubts as to the
effectiveness of section 45(iii) of the Constitution, and a series
of restrictive rulings of successive Speakers of the House of
Representatives as to the meaning of standing order 196 [which
prohibits Members voting upon issues where they have a direct
pecuniary interest], none of the provisions could be regarded with
any confidence as a safeguard against conflicts of
interest.(227)
The Riordan Committee recommended the drafting
of a code of conduct and a system of interest disclosure where it
would be compulsory for certain defined interests to be declared
but the disclosure of others could be left to the discretion of the
individual member. The Committee made detailed recommendations as
to the nature of interests requiring declaration.(228)
Its report was tabled towards the end of the life of the Whitlam
Government, which was unable to respond to the Report before being
removed from office on 11 November 1975.
On 16 December 1977 the Fraser Government
announced its intention to establish what became known as the Bowen
Inquiry.(229) This body was not comprised of members of
Parliament but its Chair had been a member and a Commonwealth
Attorney-General.(230) When releasing the Bowen
Committee's initial terms of reference, Prime Minister Fraser made
it plain that he had rejected the proposals outlined in the Riordan
Committee's Report, noting:
A whole new approach is required. I do not
regard the Report of the Parliamentary Committee on Pecuniary
Interests as putting forward adequate solutions. In my view, a
statement of pecuniary interests to the Parliament does not provide
an adequate procedure.(231)
Eventually formed in early 1978, the Bowen
Committee was given expanded terms of reference(232) and
made recommendations concerning a range of public offices including
public servants, members of the defence forces and staff of
statutory bodies. The Committee came down against the promulgation
of a comprehensive statement of ethical principles and did not
support the creation of a register of members' interests. It did,
however, recommend the adoption of a layered system of codes of
conduct and, like previous reports, doubted the effectiveness of
sections 44(iv), 44(v) and 45(iii) of the Constitution and called
for their review. It also invited the House of Representatives to
consider the effectiveness of Standing Order
196.(233)
By the time that the Bowen Committee had
reported, the operation of section 44 of the Constitution and
related provisions had been referred to the Senate Standing
Committee on Constitutional and Legal Affairs. The Senate Committee
first became involved by way of a reference of a Private Senator's
Bill, the Constitution Alteration (Holders of Offices of Profit)
Bill 1978, introduced by Senator Mal Colston (then Labor,
Qld).(234) On 28 February 1980, acting on a motion by
Senator Colin Mason (Australian Democrats, NSW) the Senate
Committee was asked to review section 44(iv) as part of a wider
reference on the qualification and the disqualification of Members
of Parliament.
The Senate Standing Committee on Constitutional
and Legal Affairs Report (the 1981 Report) provides a comprehensive
and at times damning critique of sections 44 and 45. It recommended
that:
-
- Section 34 of the Constitution should be amended to provide
that members of each House must be at least 18 years old and an
Australian citizen. With citizenship becoming the primary criterion
for enrolment, residency requirements (then in section 69 of the
Commonwealth Electoral Act) were to be treated as redundant.
-
- That section 44(i) of the Constitution be deleted and replaced
by a provision in the Electoral Act regarding the consequences of
foreign allegiance in its various forms. This would provide that
any person who made a declaration that they had taken every
reasonable step to divest themselves of their foreign nationality
could stand for Parliament. Their continued eligibility would,
however, also be contingent on them not taking conscious advantage
of any rights or entitlements arising from their unsought
nationality while they held parliamentary office.
-
- Section 44(ii) should be amended to remove the words 'or has
been convicted and is under sentence or subject to be sentenced,
for any offence punishable under the law of the Commonwealth or of
a State by imprisonment for one year or longer'. It was suggested
that only those persons convicted of treason and not subsequently
pardoned should be barred by the Constitution from seeking and
holding elected office. The Committee specifically rejected the
proposal that such matters involving the disqualification of
members could be left to each of the two Houses. In doing so, it
noted that:
The vitriolic, highly-charged and emotional
nature of the debate in the Mahon case, dealing with as it did
extremely sensitive questions among the Australian people at that
time, does little credit to the case for allowing Parliament itself
to decide matters of qualification.(235)
-
- In relation to offices of profit and public office holders
generally, i.e. section 44(iv) and aspects of section 45, the 1981
Report conceded the difficulties inherent in obliging public
servants and other government employees to resign their jobs should
they want to stand for Parliament. The Senate Committee,
nonetheless, supported the principles underlying section 44(iv). It
argued that it is inappropriate for public officials to continue to
hold paid positions which may 'expose them to undue influence by
the Executive' or place undue burdens on their time so that they
cannot properly meet their parliamentary duties.(236)
The Senate Committee was also concerned to preserve the concept
that certain offices, such as judicial offices and those occupied
by senior public servants, should not be held by members of
Parliament. The Committee recommended the deletion of section
44(iv) and its replacement with a provision which deemed the
office-holder to have relinquished that office at the moment they
become entitled to a parliamentary salary. Under a new proposed
section 45, serving members who took up certain public offices,
including some unpaid high status positions, would lose their
parliamentary seat.
-
- The Senate Standing Committee contended that their proposal to
amend section 44(iv) also resolved the 'ambiguous' position of
senators-elect who, under existing constitutional arrangements, are
unable to accept paid government employment while waiting to take
up their Senate place.(237)
-
- In relation to the payment of Assistant Ministers and
Parliamentary Secretaries, the Committee concluded that if its
recommendations concerning section 44(iv) were not accepted, then
the proviso at the end of section 44(iv) should be expanded to
exempt Assistant Ministers and Parliamentary Secretaries and the
like from disqualification. This was to enable them to be properly
remunerated.(238)
-
- As regards the issues that arose in Re Webster, the
Committee recommended that sections 44(v) and 45(iii) be deleted
and replaced by a provision that would allow the Parliament to make
laws regarding conflicts of interest.(239)
No response to the Committee's Report appeared
during the life of the Fraser Government but one was tabled by the
then Attorney-General, Senator Gareth Evans (ALP, Victoria) on 6
September 1984. The gist of the response was that the matter had
been referred to the Australian Constitutional Convention.
Adding to the impetus for reform, the Wran Labor
Government of NSW had in 1981 sponsored a successful amendment to
the NSW Constitution(240) providing for the disclosure
and regulation of the pecuniary interests of members of the
Legislative Assembly and the Legislative Council.(241)
Contingent on the making of regulations, members of either House
could be disqualified where they had wilfully contravened the
disclosure requirements. These included the obligation to disclose:
interests in real or personal property; income, gifts; financial or
other contributions to travel; shareholdings or other beneficial
interests in corporations; partnerships; trusts; positions (whether
remunerated or not) held in, or membership of, corporations, trade
unions, professional associations etc.; details of occupation or
other outside employment; debts; and payments etc. to relatives.
Necessary regulations giving effect to the new requirements were
made in 1983.(242) As Anne Twomey notes in her
(forthcoming) book on the NSW Constitution, the amendments gained
strong public support and were seen as not only protecting the
integrity of Parliament but also as improving the image of members
and insulating them from scurrilous attacks. Federally, reform
continued to tread a well-worn and more circuitous path.
In 1983(243) the Australian
Constitutional Convention(244) referred the
recommendations of the Senate Standing Committee on Constitutional
and Legal Affairs 1981 Report to the Convention's Structure of
Government Sub-Committee. The Sub-Committee in turn reported in
February 1985 endorsing, with some technical and minor
qualifications,(245) the major findings and the
principal recommendations of the Senate Committee. In particular,
the Sub-Committee expressed its support for amendments to sections
44 and 45 that would enable them to be modified by the Parliament,
i.e. the position taken by Patrick Glynn of South Australia and a
minority of delegates at the 1897-98 Convention.(246)
The meeting of the Constitutional Convention in Brisbane in July
and August 1985 adopted the Structure of Government Sub-Committee's
report with some minor changes.(247)
A requirement that electors (and thereby)
candidates be Australian citizens became law in 1984. Since then,
those persons who are not Australian citizens but are British
subjects are only entitled to vote and stand in federal elections
if they were on the electoral roll before 26 January 1984. There
is, however, no explicit constitutional requirement that members
once elected maintain their Australian citizenship. However, as has
been pointed out elsewhere, Australian citizenship is only likely
to be lost where a member acquires foreign
citizenship.(248) In such a case the member would lose
their right to sit by virtue of section 44(i) of the
Constitution.(249) (Section 99 is now the principal
provision of the Commonwealth Electoral Act dealing with residence.
The effect of the latter provision is to require that electors and
therefore candidates must have resided in the electorate for which
they are a candidate for a period of one month before immediately
placing their name on the electoral roll for that Subdivision. This
less than onerous requirement does not apply to members once
elected, although section 99(iv) does contain the implication that
members of both Houses must maintain a residence in either their
place of enrolment or the electorate they
represent.(250))
On 20 May 1987, the Parliamentary Privileges
Act 1987 came into effect largely reflecting the work of those
responsible for the 1984 Report of the Joint Select Committee on
Parliamentary Privilege (JSCPP). The JSCPP was not unduly critical
of sections 44 and 45, arguing in passing that they made it
feasible to remove the power of expulsion abused by the House of
Representatives in 1920.(251)
On 19 December 1985, the Hawke Government had
established an expert body, the Australian Constitutional
Commission, to undertake a 'fundamental review' of the
Constitution. The Constitutional Commission's Final Report,
presented on 30 June 1988 in two imposing volumes, contained
detailed analysis and a raft of proposals for Constitutional
reform.(252) The Report dealt extensively with the
eligibility provisions(253) and its key findings and
recommendations were not dissimilar to those of the 1981 Senate
Committee Report or the Australian Constitutional Convention
Sub-Committee in 1985. There were, however, some differences.
Like its predecessors, the Constitutional
Commission found little merit in the existing provisions and
arrangements. Thus it was not surprising that on the pivotal issue
of whether or not rules governing eligibility to stand for
Parliament ought to be entrenched in the Constitution or left to
ordinary legislation, the Constitutional Commission stated:
Our approach is that it is for the electors to
decide whom should represent them in Parliament. Provisions which
would disqualify candidates should, as far as possible, be
minimised.(254)
Like both the 1981 Senate Committee and the 1985
Brisbane Session of the Constitutional Convention, the
Constitutional Commission recommended against tying members'
qualifications to those of being an elector.(255)
The Constitutional Commission diverged from the
Senate Committee's approach on a number of matters. It recommended
the inclusion of a provision in the Constitution to make
unsoundness of mind a disqualification for membership of the
Parliament.(256) It also recommended the retention of
section 43 of the Constitution thereby supporting the continuation
of the requirement that a member of one House must first resign
their existing seat before nominating to contest a seat in the
other Chamber. The Constitutional Commission recommended that a
wider class of persons be subject to office of profit/crown
employment disqualifications than that put forward by the 1981
Senate Committee.(257) With regard to pecuniary
interests, the Constitutional Commission favoured giving Parliament
a more restricted power to prescribe matters that would amount to a
conflict of interest than that favoured by the 1981 Senate
Report.(258) Under the Commission's pecuniary interests
proposal, Parliament's power to prescribe disqualifying
circumstances would have remained subject to a number of existing
constitutional restraints.
The Constitutional Commission and the 1981
Senate Report also took differing approaches to the division of
responsibility between the Courts and each House of Parliament in
relation to qualifications questions. The Constitutional Commission
concluded that each House should retain the power to deal with
election disputes and qualification questions that arise in
relation to its own membership. This would, presumably, have
included a continuation of the current practice by which the
relevant House may refer a matter to the Court of Disputed Returns
under a procedure like that currently available under section 376
of the Commonwealth Electoral Act 1918.(259)
The Constitutional Commission further proposed that notwithstanding
a decision of either House, interested persons could challenge the
qualifications of a sitting member in the Court of Disputed Returns
and that the Court's decision would be determinative irrespective
of any view previously expressed by the relevant House. The
Constitutional Commission supported the retention of pecuniary
penalties in cases prescribed by the Parliament where disqualified
or unqualified persons sit in either House. It also recommended
that the right to bring common informer actions should be
entrenched in the Constitution and not be subject to a legislative
override. By contrast, the 1981 Senate Report had recommended
clarifying the existing positions by providing that where either
House referred a matter to the Court, the latter's jurisdiction
became exclusive. The Senate Report had also called for the
retention of the current common informer provisions under the 1975
Act but the abolition of pecuniary penalties.(260)
Interestingly, the Constitutional Commission
went on to consider the dilemmas that arise where successful
candidates change allegiance or party affiliation at some time
after they have entered the Parliament. Some submissions to the
Constitutional Commission argued that there should be a
constitutional requirement that in cases of defection, the member
should immediately resign their seat. There are a number of
technical difficulties with such a proposal, including the question
of how to deal with significant party splits. The Commission
decided that it would be inappropriate for the matter to be dealt
with by the Constitution.(261)
The Constitutional Commission's work was largely
passed over by Government and was tainted by the manner of the
Commission's own creation.(262) The defeat of four
government inspired and unrelated proposals for constitutional
reform on 3 September 1988(263) buried the Report under
the combined weight of a lacklustre referendum campaign and
partisan recriminations. The proponents of reform were handed
another drubbing and the prospects for changing the Constitution
seemed to have plumbed new depths.(264)
On 16 December 1996, in the wake of a series of
controversies involving aspects of section 44(i) and 44(iv), the
Attorney-General, the Hon. Daryl Williams QC, referred aspects of
the operation of the sections to the House of Representatives
Standing Committee on Legal and Constitutional Affairs. It reported
on 25 August 1997, reaching familiar conclusions about the efficacy
of the current constitutional provisions.(265) Various
witnesses again gave voice to concerns in the political parties and
in the wider community about section 44 generally and it was
suggested that the disqualification provisions unfairly exclude a
large portion of the electorate from standing for public
office.(266) The House of Representatives Committee
concluded that notwithstanding a number of helpful judicial
pronouncements, further legislative and administrative measures
would not remedy the situation. A proper remedy would require
constitutional amendment.
As to section 44(i), the House of
Representatives Committee recommended that the present section be
repealed and replaced by a simple provision requiring candidates
and members to be Australian citizens. The question of dual
citizenship would become one for regulation by the Parliament.
Matters of foreign allegiance generally would be also left for the
Parliament, not the Constitution, to regulate. With regard to
offices of profit/crown employment, the 1997 Report proposed the
deletion of section 44(iv) and its replacement with a provision
requiring holders of judicial office to resign that office before
nominating for election to the federal Parliament. The 1997 Report
also recommended that certain other public offices defined by the
Parliament would be automatically declared vacant if their
occupants nominated for election to either House.
The Government's response to the House of
Representatives Committee report was tabled on 4 December
1997.(267) The Government accepted that constitutional
and legislative action is realistically the only way of overcoming
the shortcomings of sections 44(i) and (iv). It also supported the
general direction of the proposed amendments. However, noting that
a number of substantive issues would 'require further
consideration', the Government said that it would be disposed to
put the constitutional issues to a referendum 'given adequate
support for a suitable proposal'.(268)
One recommendation rejected by the Government
was the 1997 Report's proposal that the total number of ministerial
and like offices be limited under the Constitution to a maximum of
20 per cent of the total membership of the Parliament. (The
Committee's proposal had reflected its support for a constitutional
amendment allowing for the payment of assistant ministers and
parliamentary secretaries.(269))
The operation of section 44 was again heavily
criticised by the Joint Standing Committee on Electoral Matters in
its Report on the 1998 Federal Election.(270) The
Government members' report(271) and that of the two
Australian Democrats,(272) voiced continued support for
constitutional change notwithstanding the decision in the Sue v
Hill handed down in June 1999 and the difficulty of securing
popular support for referenda proposals generally. Senators Andrew
Murray (Australian Democrats, WA) and Andrew Bartlett (Australian
Democrats, Qld) summed up the thinking on the two critical issues
as follows:
[Regarding citizenship] It is therefore clear
that, especially in view of the multicultural nature of Australian
society, contemporary standards demand that Australian citizenship
be the sole requirement for being chosen for Parliament under a new
s 44(i), with the residual legislative power being given to the
Parliament to deal with unique cases that may arise from time to
time ...
[Regarding section 44(iv)] times have changed,
even though the ancient struggle between the executive and
Parliament continues to this day. Whilst [section 44(iv)] may have
been appropriate centuries ago, the growth of the machinery of
government has meant that the contemporary effect is to prevent the
many thousands of citizens employed in the public sector from
standing for election... (273)
At the dawn of Federation, if we are to believe
the commentators, colonial politicians-the Founders-did not enjoy
what would now be called a 'high public approval rating'. As a
leading scholar on Federation has charged:
Politicians, in the political culture of the
time, were not 'people', they were the object of both mistrust and
amusement, as well as the first port of call for those in the
community with a grievance.(274)
Edmund Barton is an interesting case in point.
In the centenary year, Barton has been rightly and almost
universally lauded. After all, he was one of the leaders of the
federation movement and a major contributor at the Convention
debates (and probably the pivotal architect of the provisions
affecting members' qualifications). Subsequently he became
Australia's first Prime Minister and later a justice of the High
Court of Australia. Barton may not have been a charismatic figure
but he was a person of high intelligence who also knew how to
translate ideas into action. A recent biography recalls, however,
that Barton was regarded by many at the time as indolent,
unimaginative and an inveterate compromiser.(275) As it
was with Barton,(276) this reproving undercurrent has
remained a feature of Australian political culture. Where there is
respect, it is grudging or belated. The desire to serve is equated
with excessive ambition and, as a generalisation, those entering
public life are viewed with suspicion as self-seeking. This malaise
may be in part ascribed to the corrosive effects of the partisan
and adversarial politics inherited from Westminster and the six
Australian Colonial Parliaments and to national myths such as a
reputed distrust of authority and those seen as too closely
acquainted with its use.
The Founders, for their part, were alive to a
deep-seated and ingrained scepticism about the motives underlying
the Federal enterprise. Accordingly, the Constitution they
fashioned was designed conspicuously to protect the public good and
the credibility of the public institutions that it would bring into
being. The Convention debates on members' qualifications, although
often rather uninspired, are tinged with an understated sense of
commitment to higher ideals. This can be seen in Charles Kingston
of South Australia's contribution to the debate on members'
business dealings with government(277) and in Patrick
Glynn's call for delegates to place greater trust in 'the people'
when considering the proposal to automatically disqualify bankrupts
from Parliament.(278)
A century later, politicians and to a lesser
degree Parliament itself are not held in high
regard.(279) Opinion polling supports this conclusion
with, for example, party leaders rarely achieving approval ratings
in excess of 50 per cent. Longitudinal polling shows
parliamentarians' already low standing almost halving in the last
25 years.(280) Enthusiastic critiques of serving
parliamentarians and political leaders are no less common than they
were in Barton's day.(281) Even a healthy discounting
for all manner of collective doom saying and an endemic distrust of
authority figures and 'tall poppies' leaves a pretty solid basis of
discontent. As former Premier of Western Australia and current
federal Labor frontbencher the Hon. Dr Carmen Lawrence observed in
August 2000 in a speech that attracted considerable attention:
Many Australians ... are disgruntled by a system
which does not appear to respond to their needs and seems,
increasingly, to be in the hands of elites more interested in their
own advancement than the general good. As a result, our political
system has less and less legitimacy.(282)
If this observation and the popular wisdom are
correct, then did the Founders and those who followed them fail in
safeguarding Australian democracy from the perception, if not the
reality, that its leaders and institutional players are 'in it for
themselves'?
The hopes of the Founders or the successes and
failings of their Constitution should not be exaggerated. It was
not the Founders' intention that the Constitution should remain
fixed over time or that the rules governing members' qualifications
should be an exhaustive statement of members' legal and ethical
obligations. Although some expressed their
concerns,(283) the Founders could not have expected that
constitutional change would prove so difficult to secure. Likewise
Parliament can only take a portion of the blame for any failures in
its stewardship of the Founders' handiwork. With the exception of
the Mahon case,(284) Parliament generally has not abused
its powers with respect to its own members nor have the Courts been
required to regularly superintend the political process. If
Parliament has fallen short of the mark it is possibly more through
sins of omission rather than ones of commission.
Perhaps as Dr Lawrence has also suggested,
criticism of the apparent self-interest of those in public office
is a proxy for wider feelings of disgruntlement and
disconnectedness that range:
... across many of our democratic institutions
and processes: our outdated constitution; the Byzantine,
power-focused behaviour of our major political parties; the
disquieting alliance of our political parties with corporations and
large organisations; the control of our political parties by
privileged minorities; the seeming irrelevance of much
parliamentary debate and political discourse in the media; the
permanent state of vitriolic antagonism between the major parties;
the elevation of executive secrecy above public disclosure; the
winner takes all outcomes of elections which preclude the input of
minority opinion; and the failure to enunciate and plan for the
long term challenges we face as a community. To nominate a
few!(285)
A lawyer's perspective on political life, too,
may focus too closely on the words of the Constitution and not
enough on political checks and balances. As in relation to another
problematic area of parliamentary practice-the independence of the
Speakership-the law itself is not the ultimate safeguard against
improper conduct, '[u]ltimately, the best protection against the
majority's tendency to abuse its power is the realistic and
sobering prospect of finding itself in the
minority.'(286) Much the same might be said for the
discipline imposed by partisan politics more generally.
Most decisions about who enters Parliament and
when they leave will not hinge on 'character' or even a suggestion
of corrupt or improper conduct. As already noted, Australian
politics, particularly at the federal level, has been relatively
corruption free. Electoral choices, in the main, are more likely to
turn on the perceived performance of alternative governments. For
that matter, even when character issues are to the fore, the
Constitution and legislation governing membership of the Parliament
may matter little in the final analysis. Likewise anti-corruption
codes and the like may have only a small deterrent
effect(287) even though they, together with the prospect
of their impending use, has brought some political careers to an
early close. But is this enough? And is it the best that can be
hoped for?
A century on, and notwithstanding recent
guidance from the High Court and better procedures within the
parties, many commentators agree that sections 44 to 47 still
harbour the 'nest of problems' identified by Professor Blackshield
in evidence to the House of Representatives Standing Committee on
Legal and Constitutional Affairs in 1997.
First and quite fundamental is the concern that
the provisions (and how they are perceived) appear to unfairly
exclude a large proportion-running into the millions-of unknowing
citizens from seeking elected office.(288) Here the
problem is now not that the law is unclear. The High Court's
decision in Sue v Hill (1999) has pretty much put any
relevant doubts to rest. Nor is there probably much community
support for allowing dual citizens to stand for election to the
Australian Parliament. The problem is rather the large numbers of
persons involved and the fact that their disqualification from
elected office turns on a misunderstanding or a lack of awareness
of their own legal status rather than on an actual division of
loyalties.
Second, it may be asked how the provisions might
actually serve the aim of keeping politics 'clean'? The provisions
target members, but only indirectly relate to the conduct of
ministers. The Founders' initial intention was to prevent two sorts
of political mischief: (a) members pushing their own private
financial ends at the expense of the public good and, (b) outside
influence being brought to bear on elected members to distort the
democratic process. One might wonder whether the scope for such
mischief is as great as it once may have been and if the role and
status inferentially assigned to the humble backbencher by sections
44 and 45 is in touch with present realities. Executive power and
party discipline place heavy constraints on the influence wielded
by ordinary members. Even if backbenchers are not entirely without
influence, it is difficult to see how, for example, the decisions
in any of the recent matters involving sections 44(i) and
44(iv)-Wood, Cleary, Hill, Entsch and Lawrence-served to protect
Parliament from either an overbearing Executive or the subterranean
blandishments of a foreign power.
Third, the act of challenging election returns
or members' qualifications may itself actually harm public
confidence by reinforcing vague public perceptions that politics
and the political process is tainted.
Fourth, as a code of conduct and a guard against
'corruption' or misuse of power and political patronage, sections
44 and 45 are rudimentary at best.
Recent years have witnessed a marked increase in
the regulation of electoral affairs including campaign finance and
the funding of political parties.(289) Since October
1984 members of the House of Representatives and from 17 March
1994, Senators, have been required to disclose in full their
significant family financial interests.(290) The House
of Representatives Standing and Sessional Orders provide for a
Committee of Members' Interests to be appointed at the commencement
of each Parliament.(291) More broadly, Parliament has
renovated legislation dealing with public authorities and companies
and public employment(292) and conferred a wider
supervisory role on two of the Commonwealth's most successful
institutions: the Auditor-General and the Joint Committee on Public
Accounts and Audit.(293) Less encouragingly, a code of
conduct for Senators and Members has on several occasions been
proposed but has yet to be adopted.(294)
Reforms that do not work or which lack the
commitment of the key players are another matter entirely. As is
arguably the case with sections 44 and 45 of the Constitution,
ineffective or discredited measures tend to create a 'compliance
culture' where the avoidance of technical breaches and the
exploitation of loopholes triumph at the expense of improvements in
ethical standards.
Attempts to raise standards can also have
unforseen results and longer-term consequences. One recent but
already celebrated example of this concerns the adoption of codes
of conduct for ministers. Prime Minister Howard first adopted a
ministerial code of conduct in 1996(295) and then
'refined' it(296) after this innovation proved a useful
tool in the hands of the Opposition which employed it to prise from
office a series of Ministers and one of the Prime Minister's most
senior advisers.(297) Arguably these episodes not only
damaged the Howard Government but also contributed to a wider
malaise about Parliament and politicians of all leanings. In both
respects, it is hard to sustain the argument that either
consequence was intended or anticipated.
The record of the Federal Parliament on matters
of integrity is mixed but perhaps not as bad as may be suggested by
opinion polling or post-Federation phenomena like 'talk-back'
radio. Indeed, there is ample scope for arguing that the level of
'corruption' has probably declined significantly since colonial
times. What has increased is the level of vigilance and the
frequency with which breaches-including largely technical
breaches-of the rules are uncovered.
Collectively, Parliament has not entirely
abandoned the prospect of raising political standards. Given the
constraints of parliamentary time and the public's interest, it is
remarkable that questions of probity receive the attention they do
beyond the unending search for partisan advantage. For example, in
September 2000, Parliament's Joint Committee on Public Accounts and
Audit (JCPAA) prepared draft guidelines for Commonwealth Government
advertising. Those guidelines arose out of the JCPAA's review of
the Australian National Audit Office Report on government
expenditure in the lead up to the 1998 election intended to promote
better understanding of government proposals to make wholesale
changes to the Australian taxation system.(298) At the
start of its second century, Federal Parliament had before it four
bills dealing with honesty concerns.(299) As was the
case with the Founders, there persists a willingness to learn from
the experience of others. Hence not only have charters of political
honesty and truth in advertising been considered but so have
successful (to date) overseas experiments such as the Ethics
Counsellor model adopted in Canada.(300)
It was the intention of the Founders that the
Constitution would serve as an important defence against political
corruption, particularly those forms of dishonest behaviour that
had been prevalent in the federating colonies. Some limitations on
membership of the Parliament were entrenched in the Constitution
but others were not. In taking this course, the Founders accepted
that there were limits on what could be expected from the
Parliament, the courts and from the people in dealing with
wrongdoing by candidates, members or ministers. Decisions taken by
either House to discipline its members would inevitably be tainted
by suspected or actual bias. The Courts might conceivably play a
role but that would be limited so as not to impinge on the
separation of powers between the arms of government. Elections
could have a cleansing effect but were subject to practical
limitations,(301) for instance: the electorate's lack of
information, and the tendency for probity questions to be swamped
by other concerns. Even more telling: the electoral sanction would
only be available in theory once every three years for members of
the House and once every six in the case of Senators.
One hundred years on, many of the safeguards
devised by the Founders and built on subsequently by Parliament
seem ineffective and altogether too arbitrary in their operation.
Academic criticism and numerous reports including those undertaken
by the Parliament have laid the groundwork for change but the
reform process has stalled.
History has shown the Australian electorate
increasingly reluctant to support constitutional
change-particularly changes one might suppose could make life less
difficult for parliamentarians or political
parties.(302) Experience has also shown that referenda
are expensive to run both for those promoting them and for the
taxpayer.
That being the case, it is likely for the
foreseeable future that the pattern of the past 25 years will be
repeated. Parliament will continue to renovate those qualification
requirements that are within its legislative capacity. Large
numbers of Australians will be excluded from holding elected office
because of their parentage or place of birth or because of the
nature of their employment. Sections 44 and 45 will continue to
entrap the guileless more often than they punish the guilty.
Parliamentarians, campaign managers, party officials and
commentators will continue to vent their frustration and point to
the problems with the Founders' legacy but the weaknesses that they
have identified will remain largely untouched. The established
political parties and the Australian Electoral Commission will
continue to do what can be done administratively to minimise the
damage. Perhaps the High Court, if given the opportunity, will be
able to clarify some of the remaining doubtful provisions without
sparking a significant political crisis in the process.
Alternatively, a very close election result and
ensuing challenges to the eligibility of one or more successful
candidates might ignite the sort of undeclared political crisis
that was played out around the results of the US Presidential
election of 2000 and in Australia in 1975.(303) But
that, as the Americans say, would be something 'out of left field'.
Otherwise, Parliament, perhaps increasingly frustrated by the
current eligibility rules and the continuing low public esteem,
might make a determined effort to promote cross-party sponsored
reforms in an effort to revitalise the polity and 'spring clean'
the Constitution. Something along the lines of the reforms
governing members' pecuniary interests sponsored by the Wran
Government and endorsed by popular referendum in 1981 would be one
way forward. Were it to embark on such or a similar course,
Parliament would find itself engaged in a major renovation of the
Founders' legacy. Unlikely? Yes, but then Federation itself has
more than once been described as something of a political
miracle.
In an age where economics dominates politics and
the philosophy of 'whatever it takes' appears to provide the
popular framework for political analysis, even a suggestion that
questions of political ethics might attract concerted attention
will struggle to maintain credibility. Hence, in the closing
passage of this paper the very idea that the Founder's "code" of
conduct for parliamentarians could be mended or refashioned could
only be seriously advanced if triggered by some unforseen event -
something 'out of left field'.
That said, the period since the November 2001
Election has been notable for the prominence given to ethical
issues in media commentary on Australian public life.
Some of this has been part of the background
noise of post-election politics.(304) Some has been less
routine and arguably more disturbing, arising from what is
popularly referred to as the 'children overboard affair'. But some
has had a life of its own.
Hence there have been concerns about the post
separation employment practices of recently retired Ministers
encompassing both the nature of their employment and any ongoing
links with government as, for example, where former ministers have
been involved in undertaking the performance appraisals of their
former departmental heads.(305)
Issues have arisen as to what disciplinary
powers exist and ought to be exercised by the respective Chambers
when members of parliament appear to make baseless attacks on those
who do not enjoy the protection of parliamentary
privilege.(306)
Parliament's role and suitability for
scrutinising the credentials and fitness for office of other public
officials was implicitly in play in respect of allegations made
against the Governor-General concerning his treatment of child sex
abuse allegations made against members of the clergy while he was
Anglican Archbishop of Brisbane.
The legal status of former parliamentarians and
ministerial staff in respect of parliamentary inquiries and, by
implication the status of staffers more generally, has been
ventilated but remains unresolved.(307)
As already noted, a former Member who failed to
retain his seat at the November 2001 Election was convicted on four
counts including accepting bribes.(308)
The length of parliamentary terms again has been
at issue.(309)
Now the Senate has before it a question under
section 44(v) of the Constitution.(310)
All this serves to underline the degree to which
many of our notions of what constitute appropriate standards in
public life are either not fully formed or less than adequately
realised. The Founders wrestled with questions as to who may stand
for elected office and how the electorate should be represented
because constitution-making invariably brings such issues to the
fore. A century and or so later, many of these basic questions are
again prominent but this time without the spur of
constitution-making to propel them forward to, if not a permanent
conclusion, then some form of interim settlement to serve the
times.
-
- Refer Appendix 1 for the text of the more relevant
constitutional provisions.
- Re Walsh [1971] VR 33.
- Hence in this paper 'qualification', unless otherwise stated,
may be taken to refer to both qualifications and disqualifying
provisions. The expression 'eligibility rules' is also used to
refer to both the qualification and disqualification provisions of
the Constitution and the Commonwealth Electoral Act 1918.
- The latter may of course also lead to an election being
declared void. Blurton v Commonwealth Minister for Aboriginal
Affairs (1991) 29 FCR 442.
- 176 CLR 77
- Thereby preventing women from standing for the first
Commonwealth Parliament except in South Australia and Western
Australia.
- Being an election for half the State Senate positions and all
four Territory Senate seats.
- Convention Debates, Adelaide, 21 April 1897, p. 1037.
The Convention Debates will be cited as
follows:
Official Record of the Proceedings
and Debates of the National Australasian Convention Debates,
Sydney, 2 March to 9 April 1891, Government Printer, Sydney,
1891, cited as Convention Debates, Sydney, 1891.
Official Report of the National Australasian
Convention Debates, Adelaide, 22 March to 5 May 1897,
Government Printer, Adelaide, 1897, cited as Convention Debates,
Adelaide, 1897.
Official Record of the Debates of the
Australasian Federal Convention, Sydney, 2 September to
24 September 1897, Government Printer, Sydney, 1897, cited as
Convention Debates, Sydney, 1897.
Official Record of the Debates of the
Australasian Federal Convention, Melbourne, 20 January to
17 March 1898, Government Printer, Melbourne, 1898,
vol. 1, 20 January to 22 February 1898, vol. 2., 22
February to 17 March 1898, cited as Convention Debates, Melbourne,
1898.
- Convention Debates, Adelaide, 17 April 1897, p. 752.
- Although the Western Australian Delegation was selected by the
Western Australian Parliament from amongst its own members.
- L. F. Crisp, Australian National Government,
5th ed., Longman Cheshire, 1983, pp. 9-12.
- Constitution Act 1855 (NSW), sections 2, 11 and 16,
Parliamentary Electorates and Elections Act 1893 (NSW),
sections 23 and 65; Constitution Amendment Act 1890 (Vic.)
sections 35 and 124; Elections Act 1885 (Qld), section 6
read in conjunction with Legislative Assembly Act
1867 (Qld), section 2; Constitution Act (SA) 1855-6,
sections 14 and 16; Constitution Acts Amendment Act 1899
(WA), section 20; and Constitution Amendment Act 1898
(Tas.), sections 5 and 7.
- Compare the relatively detailed NSW model to be found in the
1855 Constitution and the Parliamentary Electorates and
Elections Act 1893 (NSW) section 24, with the less
prescriptive approach in SA dealing only with conflicting offices
of profit and receipt of Crown pensions [Constitution Act (SA)
1855-6, section 17].
- At a rough count there were over 20 direct references to
colonial or overseas models during the course of the Convention
Debates relating to the eligibility provisions.
- See S. O'Brien, 'Dual Citizenship, Foreign Allegiance and s.
44(i) of the Australian Constitution', Background Paper,
no. 29, Department of the Parliamentary Library, Canberra, December
1992, pp. 17-18.
- Refer sections 23 and 29(2) of the Constitution Acts 1867-82
(Canada).
- The Constitution of the United States, article 1, sections 2
and 3.
- M. Maley, 'Candidates: Legal Requirements and
Disqualifications', International Encyclopedia of
Elections, edited by R. Rose, MacMillan, 2000, pp. 31-32. P.
Laundy, Parliaments in the Modern World, Dartmouth, 1989.
- The term 'citizenship' is not specifically employed in the
Constitution. In fact, the notion 'Australian citizenship' was not
created until 1949 and then by legislation, not by way of
constitutional change. For a discussion of the concepts of
'citizenship', 'alien' and 'British subject' refer to the recent
decision of the High Court of Australia: Re Patterson; Ex parte
Taylor [2001] HCA (6 September 2001).
- G. Davis, 'Why Not Limit the Terms of Politicians?',
Legislative Studies, vol. 7, no. 2, Autumn 1993, pp.
48-53.
- Since the 1977 amendments to section 15 of the Constitution
there has, however, been a marked increase in the percentage of
Senators who have been appointed rather than directly elected. As
at 30 June 1996, the number of appointed Senators had risen to 11
or 14.5 per cent of the Senate. Over the first 76 years of
Federation the number of appointed Senators averaged around 3 per
parliament. G. Newman, 'Senate Casual Vacancies', Research
Note no. 34, Department of the Parliamentary Library,
Canberra, 6 March 1997.
- Section 64 of the Australian Constitution.
- For a discussion of some topical aspects of the overseas
experience see Ian Holland, 'Post-separation Employment of
Ministers', Research Note, no. 40, 2001-2002,
Department of the Parliamentary Library, May 2002.
- Schedule 1 item 2 to the 1855 Constitution [18 & 19
Victoria, c. 54] provided that not less than four-fifths of the
membership of the Legislative Council could not hold an office of
profit under the crown excepting members of Her Majesty's sea and
land forces. Item 18 of the Schedule also limited the number of
members of the Legislative Assembly who could be appointed to the
Executive Council.
- Senate and House of Representatives, Debates, 5 June
1901, p. 738.
- Convention Debates, Adelaide, 15 April 1897, pp. 680-682.
- Convention Debates, Sydney, 21 September 1897, pp. 991-993 and
pp. 1034-1035.
- Josiah Symon (SA), Convention Debates, Adelaide, 17 April 1897,
p. 746.
- Richard O'Connor (NSW), Convention Debates, Adelaide, 17 April
1897, p. 749.
- Convention Debates, Sydney, 3 April 1891, p. 658.
- Convention Debates, Adelaide, 17 April 1897, pp. 740-754; and
Sydney, 21 September 1897, pp. 1029-1034.
- Convention Debates, Sydney, 21 September 1897, pp. 1012-1015.
- Exclusive jurisdiction over election disputes was given to the
High Court of Australia under the Commonwealth Electoral Act
1902.
- An 'election dispute' of this type may, for instance, arise
over allegations of electoral bribery, vote rigging, multiple
voting or misleading election advertising.
- G. S. Reid and M. Forrest, Australia's Commonwealth
Parliament 1901-1988: Ten Perspectives, Melbourne University
Press, Melbourne, 1989, pp. 105-112.
- See P. Schoff, 'The Electoral Jurisdiction of the High Court as
the Court of Disputed Returns: Non-Judicial Power an Incompatible
Function?', Federal Law Review, vol. 25, 1997,
pp. 326-329.
- Refer Blundell v Vardon (1907) 4CLR 1463 and
Vardon v O'Loghlin (1908) 5 CLR 201.
- Section 6.
- 'Unequal' in the sense that the two Houses each retained the
right to determine which matters could come before the Court by way
of section 47.
- It was for instance argued that the appointment of former Prime
Minister, Stanley Melbourne Bruce as High Commissioner to London
infringed section 44(iv). Refer: Senate and House of
Representatives, Debates, 15 September 1932, pp. 513-517.
In 1962 questions were raised in the House of Representatives
regarding of the treatment of Senator-elect, Doug McClelland,
occasioned by the operation of section 44(iv) of the Constitution.
This was a precursor to the matter involving Senator Jeannie Ferris
(Liberal, SA) discussed in the text concerning the prohibition on
Senators-elect accepting public sector employment whilst they are
waiting to take up a Senate seat. Cited in G. Carney, Members
of Parliament: law and ethics, Prospect Press, Sydney, 2000,
pp. 73-74.
- For example, Professor Enid Campbell-see Parliamentary
Privilege in Australia, Melbourne University Press, 1966, pp.
90-108; and Professor Geoffrey Sawer-see Australian Federal
Politics and Law 1901-1929, Melbourne University Press,
Melbourne, 1956 and Australian Federal Politics and Law
1929-1949, Melbourne University Press, Melbourne, 1963.
- C. Howard, Australian Federal Constitutional Law,
3rd edition, Law Book Company, Sydney, 1985, p. 74 cited
in Sarah O'Brien, 'Dual Citizenship, Foreign Allegiance and s.
44(i) of the Australian Constitution', op. cit.
- Disputed Elections and Qualifications Act 1907 passed
in the wake of the Vardon litigation centring on a disputed Senate
seat. Refer: Blundell v Vardon (1907) 4 CLR 1463 and
Vardon v O'Loghlin (1908) 5 CLR 201 discussed by McHugh J
in Sue v Hill (1999) 199 CLR 462 at pp. 537-539.
- Sarina v O'Connor (1946). See S. O'Brien, 'Dual
Citizenship, Foreign Allegiance and s. 44(i) of the Australian
Constitution', op. cit., p. 12.
- Crittenden v Anderson (1950) an unreported High Court
of Australia decision of 23 August 1950 noted in the Australian
Law Journal vol 51, 1977, p. 171.
- Vardon v O'Loghlin (1908) 5 CLR 201 at p. 208.
- Under section 20 of the Constitution for failing to attend
Parliament for two consecutive months in one session.
- In Re Wood (1988) 167 CLR 145.
- Senator Irina Dunn (Nuclear Disarmament Party, NSW).
- Refer Sykes v Cleary (1992) 176 CLR 77; and Free v
Kelly (1996) 185 CLR 296. In the Kelly case, the respondent
conceded that as an officer in the RAAF at the time of her
nomination she was ineligible to stand for Parliament. The Court
also held that Ms Kelly was ineligible to stand as under section
44(i) she had not taken reasonable steps to renounce her dual New
Zealand citizenship.
- For a detailed and authoritative treatment of this episode see:
Odgers' Australian Senate Practice, H. Evans, ed., Dept.
of the Senate, Canberra, 9th ed., 1999, pp. 153-154.
- Sue v Hill (1999) 199 CLR 462.
- Gleeson CJ, Gaudron, Gummow, and Hayne JJ.
- (1988) 167 CLR 145.
- Refer the leading cases of Re Webster (1975) 132 CLR
270; In Re Wood (1988) 167 CLR 145; Sykes v
Cleary (1992) 176 CLR 77; and Sue v Hill (1999) 199
CLR 462.
- For one exposition of this view see, Odgers' Australian
Senate Practice, 9th ed., op. cit., page 151-157 at
p. 155.
- A person who is an Australian and a foreign citizen must take
'reasonable steps' to divest themselves of their foreign
citizenship before they nominate to contest a seat in the Federal
Parliament. 'Reasonable steps', although lacking precision, was
sufficiently elaborated by the Court to satisfy the House of
Representatives Standing Committee on Legal and Constitutional
Affairs. The Committee's Report on Aspects of section 44 of the
Australian Constitution (1997), which was otherwise
highly critical of the present constitutional provisions, conceded
that the High Court had gone 'some distance to resolving the
problem' [See Report pp. 24-26].
- A significant number of Australian citizens-most likely dual
citizenship holders or persons who came Australia as
children-although they may not know it, also hold foreign
citizenship and would be subject to disqualification under section
44(i).
- For example, the meaning of the phrase 'attainted of treason'
in section 44(ii) and the term 'office of profit under the Crown'
in section 44(iv).
- It is argued, for example, that regulations made under the
Public Service Act 1999, provide a risk free method for
public servants to stand for Parliament safe in the knowledge that
they can resume their old job if their campaign proves
unsuccessful. (It must be said, however, that the validity of such
an automatic return provision is open to serious doubt given that
in effect it is a direct legislative denial of section 44(iv).)
Refer Public Service Regulations 1999, Division 3.2.
- H. Evans, 'Enclosing politicians: the ambitious project',
Constitutional Law and Policy Review, August 2000, pp.
26-28, and 40 at p. 26.
- Major contributions to the debate include various reports and
studies commissioned by the Parliament itself. The contribution to
understanding the issues made by the various editions of
Odgers' Senate Practice and House of Representatives
Practice is sometimes taken for granted by commentators and
should not be. Professor Gerard Carney's recent study, Members
of Parliament: law and ethics, op. cit., provides the sort of
'lay' comprehensive and cohesive treatment that this area has
needed for many years. Practitioners and party and electoral
officials will find it a godsend.
- Professor Tony Blackshield in evidence to the House of
Representatives Standing Committee on Legal and Constitutional
Affairs Inquiry into 'Aspects of Section 44 of the Australian
Constitution', Report, 1997, p. 101. Professor Blackshield
was putting what is the dominant view on section 44 amongst legal
academics, i.e. that the entire provision needs to be replaced and
that can only be achieved by constitutional amendment.
- Evidence to Senate Standing Committee on Constitutional and
Legal Affairs, The Constitutional Qualification of Members of
Parliament, 1981. Cited by Professor Tony Blackshield in
evidence to House of Representatives Standing Committee on Legal
and Constitution Affairs Inquiry into 'Aspects of Section 44 of the
Australian Constitution', Report, 1997, pp. 34-35.
- P. J. Hanks, 'Parliamentarians and the Electorate' in Labor
and the Constitution 1972-1975, Gareth Evans, ed., Heinemann,
Melbourne, 1977, pp. 166-214, see especially p. 200.
- Evidence to House of Representatives Standing Committee on
Legal and Constitution Affairs Inquiry into 'Aspects of Section 44
of the Australian Constitution', 1997, transcript, p. 111.
- Evidence to House of Representatives Standing Committee on
Legal and Constitution Affairs Inquiry into 'Aspects of Section 44
of the Australian Constitution', 1997.
- Members of Parliament: Law and Ethics, op. cit.
- Cited at page 35, of the Report of the House of
Representatives Standing Committee on Legal and Constitution
Affairs Inquiry into 'Aspects of Section 44 of the Australian
Constitution', 1997.
- Report of the Joint Committee on Pecuniary Interests of Members
of Parliament, Declaration of Interests, 1975 (the Riordan
Report). Report of the Committee of Inquiry Concerning Public
Duty and Private Interest, July 1979 (the Bowen Report).
Report of the Senate Standing Committee on Constitutional and Legal
Affairs, The Constitutional Qualification of Members of
Parliament, 1981 (the 1981 Senate Report). Report of the Joint
Select Committee on Parliamentary Privilege, Final Report,
Parliamentary Paper No. 219/1984, October 1984, p. 126. House of
Representatives Standing Committee on Legal and Constitution
Affairs Inquiry into 'Aspects of Section 44 of the Australian
Constitution', Report, 1997.
- The Proceedings of the Australian Constitutional Convention
1985 (Brisbane Session), Structure of Government Sub-Committee
Report on Constitutional Qualifications of Members of
Parliament, Volume II.
- See especially pp. 160-165, 262-267, and 274-306.
- A rising tide of electoral litigation and legal controversy
regarding the composition of the Parliament was mentioned by
several authors in the 1970s. See, for example, G. Evans,
'Pecuniary Interests of Members under the Australian Constitution',
Australian Law Journal, vol. 49, August 1975, pp. 464-477;
and M. Sexton 'The Role of Judicial Review of Federal Electoral
Law', Australian Law Journal, vol. 52, January 1978, pp.
28-38.
- Sue v Hill (1999) 199 CLR 462; Rudolphy v
Lightfoot (1999) 176 ALR 105; R v Lawrence
(Unreported) Perth District Court, 23 July 1999, Indictment No.
1351/1999; and R v Murray (Unreported) Perth District
Court, 9 March 2000, Indictment No. 781/1999.
- Sydney Morning Herald, 'A slight problem with the
candidate but Democrats are still focussed on Aston', 12 July 2001.
- L. Dodson and A. Crabb, 'MP's widow asked to run for his seat',
The Age, 8 May 2001 and Annabel Crabb, 'Nugent's widow
ineligible', The Age, 24 May 2001.
- Canberra Times, 8 October 2001.
- Senate, Debates, 14 May 2002, pp. 1377-1381.
- J. W. Shaw QC MLC, 'Disqualification of Members of Parliament',
Public Law Review, vol. 11, June 2000, pp. 83-86 at
p. 83.
- J. Uhr, 'Rules of Representation: Parliament and the Design of
the Australian Electoral System', Research Paper no. 29,
1999-2000, Department of the Parliamentary Library, Canberra, 2000,
p. ii. See also Parliament: The Vision in Hindsight,
edited by G.Lindell and R.Bennett, Federation Press, Sydney 2001.
- The first woman to stand for Federal Parliament was Vida
Goldstein who unsuccessfully stood for the Senate in Victoria at
the December 1903 General Election.
- Constitution Alteration (Holders of Office of Profit) Bill 1978
introduced by Senator Colston (ALP, Qld) on 15 November 1978 and
Constitution Alteration (Disqualification of Members and
Candidates) Bill 1985 first introduced by Senator Mason (Australian
Democrats, NSW) on 28 March 1985.
- J. Quick and R. Garran, The Annotated Constitution of the
Australian Commonwealth, (reprinted 1976), Legal Books,
Sydney, 1901, p. 501.
- With the passage of the Parliamentary Privileges Act
1987, section 8.
- Assertions and counter-assertions were made about what Mahon
had actually said. Mahon himself was unable to attend the House to
answer the expulsion motion. Mahon also denied the accuracy of the
report of the offending speech given in the Melbourne
Argus.
- Senate and House of Representatives, Debates, 11
November 1920, pp. 6382-6383.
- ibid., p. 6474.
- G. Souter, Acts of Parliament, Melbourne University
Press, Melbourne, 1988, pp. 182-184.
- The Act commenced on 20 May 1987.
- Refer section 8 of the Parliamentary Privileges Act
1987.
- Joint Select Committee on Parliamentary Privilege, Final
Report, Parliamentary Paper No. 219/1984, October 1984, p.
126.
- By virtue of section 5 of the Privileges Act and their Standing
Orders, the Senate and the House of Representatives each retain the
powers to discipline their respective members. That power includes
the power to suspend, although dicta in the High Court's decision
in Egan v Willis (1998-99) 195 CLR 424 would seem to
suggest that that power may only be used for proper purposes so
that members may not be suspended for an unreasonable or excessive
period of time. [Refer: McHugh J at pp. 455-456; Kirby J at p. 506
and Callinan J at p. 514]. Section 7(5) of the Parliamentary
Privileges Act confers an explicit power on a House to fine members
for misconduct or improper behaviour.
- Senator Cleaver Bunton (Independent, NSW), whose term in the
Senate expired on 11 November 1975.
- Dr Mal Colston.
- For a more detailed discussion see: P. Kelly, The Unmaking
of Gough, Allen and Unwin 1994, pp. 301-305.
- Senate, Debates, 9 September 1975, p. 606, and 1
October 1975, p. 823.
- P. J. Hanks, 'Parliamentarians and the Electorate' op. cit.,
pp. 198-199.
- Under the amended section 15, a casual vacancy is now filled
for the remainder of the former Senator's term. There is no
subsequent 'by-election' for the vacancy at the next General
Election in those cases where the former Senator's term would not
have expired at the next half-Senate election.
- As was the case in 1987 when the Tasmanian Parliament refused
to accept the ALP's nominee to replace Senator Don Grimes who had
retired from the Senate on 2 April 1987. See Odgers' Senate
Practice, 10th edition, 2001, pp. 132-136 for a more detailed
treatment.
- (1992) 176 CLR 77.
- To which the response would be that the Government's problems
arose principally from the operation of the old section 15 and not
section 44.
- G. Carney, Members of Parliament: law and ethics, op.
cit., pp. 20-21.
- G. Sawer, 'Political Questions', University of Toronto Law
Journal, volume 15, 1963, pp. 49-61 at p. 60.
- Refer section 47 of the Constitution and Disputed Returns
and Qualifications Act 1907, subsequently as Divisions 1 and 2
of Part XXII of the Commonwealth Electoral Act 1918.
- G. S. Reid and M. Forrest, Australia's Commonwealth
Parliament 1901-1988:Ten Perspectives, Melbourne University
Press, Melbourne, 1989, pp. 109-110, Paul Schoff, 'The Electoral
Jurisdiction of the High Court as the Court of Disputed Returns',
op. cit., pp. 322-323.
- This centred on a dispute over the filling of a casual Senate
vacancy. See below and also J R. Odgers' Australian
Senate Practice, H. Evans, ed., 10th ed.,
Department of the Senate, Canberra, 2001, pp. 156-159.
- This was after the High Court had ruled that it had no
jurisdiction to make determinations on the filling of casual
vacancies in either House: R v Governor of South Australia
(1907) 4 CLR 1497.
- P. Schoff, 'The Electoral Jurisdiction of the High Court as the
Court of Disputed Returns', op. cit., p. 323.
- It is arguable that an action under this legislation and
section 46 only leads to the imposition of a penalty-removal of the
member is not automatic but must be pursued separately.
- Such as in the case Albert Patrick Field discussed elsewhere.
See also: P. J. Hanks, 'Parliamentarians and the Electorate', op.
cit., pp. 198-199.
- Common Informers (Parliamentary Disqualifications) Act, section
3(1).
- (1992) Dawson J, 107 ALR 577 at p. 579.
- (1999) 199 CLR 462.
- Gleeson CJ, Gummow, Hayne and Gaudron JJ.
- McHugh, Kirby and Callinan JJ.
- The contrary view is that there is no explicit constitutional
power for the Court to adjudicate on the internal affairs of the
House of Representatives or the Senate and that no such power can
be implied from the words of the Constitution. It has also been
argued that the judicial technique is ill suited to the resolution
of such matters. Less persuasively it is sometimes said that the
Courts ought not to concern themselves with 'political disputes'.
- Barwick CJ in Cormack v Cope (1974) ALJR 319 at p. 322
and Kirby J in Egan v Willis 158 ALR 527 at p. 572 and in
Sue v Hill (1999) 199 CLR 462 at p. 558 and p. 567.
- The issue arose in Egan v Chadwick (1999) 46 NSWLR
563. On 27 November 1998, the NSW Legislative Council suspended the
Government Leader in that Chamber for an indefinite period for
refusing to table a series of documents. However, the NSW Court of
Appeal did not make a decision on whether the indefinite
suspension was justiciable. (What made the matter justiciable was
an alleged trespass to Mr Egan's person.) An intervening State
election provided a political solution to Mr Egan's woes.
- E. Campbell, Parliamentary Privilege in Australia,
Melbourne University Press, Melbourne, 1961, pp. 105-108, Hon. D.
Kerr, 'Mr Egan and the Legislative Council' Australian Bar
Review, vol. 19, 1999, pp. 67-88, P. Lane, The Australian
Federal System, 2nd ed., Law Book Company, 1979,
pp. 1135-1144, G. Lindell, 'The Justiciability of Political
Questions' in Australian Constitutional Perspectives', H.
P. Lee and G. Winterton, eds., Law Book Company, Sydney, 1992, pp.
180-250; 'Duty to Exercise Judicial Review' in Commentaries on
the Australian Constitution, L. Zines, ed., Butterworths,
Sydney,1977, pp. 150-190, and 'Judicial Review and the Composition
of the House of Representatives', Federal Law Review, vol.
6, 1974, pp. 84-106. C. Mantziaris, 'Egan v Willis and Egan v
Chadwick: Responsible Government and Parliamentary Privilege',
Research Paper, no. 12, 1999-2000, Department of the
Parliamentary Library, Canberra, December 1999, C. Saunders,
'Democracy: Representation and Participation', in Essays on Law
and Government: Volume 1, Principles and Values, Paul Finn,
ed., Law Book Company, Sydney, 1995, pp. 51-74, G. Sawer,
'Political Questions', University of Toronto Law Journal,
vol. 15, 1963, pp. 49-61. M. Sexton, 'The Role of Judicial
Review in Federal Electoral Law', Australian Law Journal,
vol. 52, January 1978, pp. 28-38', P. Schoff, 'The Electoral
Jurisdiction of the High Court as the Court of Disputed Returns:
Non-Judicial Power and Incompatible Function?', op. cit., James A.
Thomson, 'Constitutional Authority for Judicial Review: A
Contribution from the Founders of the Australian Constitution', in
The Convention Debates 1891-1898: Commentaries, Indices and
Guide, edited by G. Craven, vol. VI, Legal Books, 1986, pp.
173-202, G. Orr and G. Williams, 'Electoral Challenges:
Judicial review of Parliamentary Elections in Australia',
Sydney University Law Review, March 2001, K. Walker,
'Disputed Returns and Parliamentary Qualifications: Is the High
Court's Jurisdiction Constitutional?', UNSW Law Journal,
vol. 20, 1997, pp. 257-273, and D. Williams MP, 'Judicial review of
legislative action', Legislative Studies, vol. 65, Autumn
1995, pp. 65-71.
- C. Saunders, 'Democracy: Representation and Participation', op.
cit., at p. 68.
- Gerard Carney, Members of Parliament: law and ethics,
op. cit., pp. 148-150; and Senate Standing Committee on
Constitutional and Legal Affairs, 'The Constitutional Qualification
of Members of Parliament', Report, 1981, pp. 93-95.
- See Re Webster (1975) 132 CLR 270, In Re Wood
(1988) 167 CLR 145.
- In April 1974 the Coalition/Democratic Labor Party controlled
Senate declined to refer questions arising under sections 44 and 45
in respect of Senator Vince Gair's (DLP, Qld) appointment as
Ambassador to Ireland to the High Court for determination. Refer
P.J. Hanks, 'Parliamentarians and the Electorate', op. cit., pp.
191-194.
- On 10 June 1999, the House of Representatives defeated a motion
moved by the ALP to have a question concerning the possible
disqualification of Hon. Warren Entsch (Liberal, Leichhardt, Qld)
referred to the High Court under section 376 of the
Commonwealth Electoral Act 1918. It was alleged that Mr
Entsch held a significant interest in a company that had performed
work for the Department of Defence-House of Representatives,
Debates, pp. 6720-6730. On 5 May 1977, the House of
Representatives defeated a motion to refer a possible breach of
section 45(ii) of the Constitution to the Court of Disputed
Returns. The matter involved a possible benefit derived by Michael
Baume (Liberal, Macarthur, NSW) from a deed of arrangement entered
into under Part X of the Bankruptcy Act. Mr Baume was not a party
to the deed of arrangement and the House decided, albeit on party
lines, not to refer the matter to the Court-Refer Senate Standing
Committee on Constitutional and Legal Affairs, 'The Constitutional
Qualification of Members of Parliament', Report, 1981, pp.
31-34.
- Advice prepared by Acting Solicitor-General to the
Commonwealth, 9 June 1999.
- House of Representatives, Debates, 10 June 1999, pp.
6720-6735.
- ibid., pp. 6727 and 6728.
- Emeritus Professor Tony Blackshield, ABC AM Program,
11 June 1999.
- Discussed below.
- Sections 44(v) and 45(iii).
- (1992) 176 CLR 77 at p. 99.
- Discussed in House of Representatives Standing Committee on
Legal and Constitutional Affairs, Report, 'Aspects of
Section 44 of the Australian Constitution', 1997 at pp. 66-67 with
two Professors of law associated with the present project
expressing conflicting views.
- In respect of Senator Elect Jeannie Ferris (1996) and a
question raised in 1980 by Senator Gareth Evans in correspondence
with the Attorney-General, Senator the Hon. Peter Durack QC. See
also the McClelland matter referred to by G. Carney, Members of
Parliament: law and ethics, op. cit., pp. 73-74.
- Advice given by the then Attorney-General, the Hon. Peter
Durack QC, in correspondence with Senator Gareth Evans,
Report of the Senate Stranding Committee on Constitutional
and Legal Affairs, 'The Constitutional Qualification of Members of
Parliament', 1981, pp. 54-55 and Appendix 2. Discussed in House of
Representatives Standing Committee on Legal and Constitutional
Affairs, Report, 'Aspects of Section 44 of the Australian
Constitution', 1997, pp. 62-63.
- G. Carney, Members of Parliament: law and ethics, op.
cit., pp. 91-92. Questions were raised in 1987 when former
Commonwealth Treasury Secretary, John Stone, announced that he
would be contesting a Senate seat for the National Party. Refer: K.
Cole, 'Office of Profit under the Crown and Membership of the
Commonwealth Parliament', Issues Brief, no. 5, 1993,
Department of the Parliamentary Library, Canberra, 30 April 1993,
p. 15.
- House of Representatives Standing Committee on Legal and
Constitution Affairs Inquiry into 'Aspects of Section 44 of the
Australian Constitution', Report, 1997, p. 71. However,
for a more sanguine view, see G. Carney, Members of Parliament:
law and ethics, op. cit., pp. 69-70.
- Discussion here is necessarily truncated. Readers wanting a
more detailed discussion are referred to M. Healy, 'The role of
parliamentary secretaries', Legislative Studies, Spring
1993, pp. 46-60. Senate Standing Committee on Constitutional and
Legal Affairs, The Constitutional Qualification of Members of
Parliament, 1981, pp. 63-74. R. Bennett, 'Ministers of State
and Other Legislation Amendment Bill 1999', Bills Digest,
no. 110, Department of Parliamentary Library, Canberra, 4 February
2000, G. Carney, Members of Parliament: law and ethics,
op. cit., 2000, pp. 75-76.
- Despite some initial reservations, it is now settled that such
appointments are to an office of profit under the crown if they are
remunerated. Likewise it also seems reasonably free from doubt that
more than one person can be appointed to simultaneously administer
a department of state. Solicitor-General, Opinion,
'Parliamentary Secretaries' remuneration' tabled in the Senate, 17
February 2000. Attorney-General v Foster (1999) 84 FCR
582, pp. 593-594; Re Patterson; Ex parte Taylor [2001] HCA 51,
6 September 2001.
- Resolution of the House, 16 October 1991. See also guidelines
issued by the Speaker on 26 March 1992.
- Odgers' Australian Senate Practice, op. cit., 9th ed.,
especially pp. 457-459.
- Although, it may be noted, that the Convention debates are
singularly unhelpful on this point with the main point of
discussion in regard to section 65 being whether there should be a
minimum number of ministers in the Senate. Convention Debates,
Adelaide, 19 April 1897, p. 916 and Sydney, Debates,
17 September 1897, pp. 799-802.
- Annotated Constitution of the Australian Commonwealth,
1901, p. 711.
- Opinion given 7 February 1958, cited in Senate Standing
Committee on Constitutional and Legal Affairs, The
Constitutional Qualifications of Members of Parliament,
Canberra, 1981, pp. 68-69.
- Refer Beaumont J in GTE (Australia) Pty Ltd v Brown
(1987-88) 76 ALR 221.
- Up to 30 of whom are 'ministers' with a further 12
parliamentary secretaries being able to be appointed. All, however,
are designated as appointments under section 64 of the Constitution
and therefore are entitled to remuneration.
- 17.9.1914-27.10.1915.
- Sir Charles Marr, who was not a parliamentarian.
- G. Skene, 'Assistant Ministers', Background Paper,
Legislative Research Service, Department of the Parliamentary
Library, 26 November 1984, p. 2.
- Speaker Cameron did not resign over the rebuff.
- G. Skene, 'Assistant Ministers', op. cit., pp. 3-4. Rt Hon. R.
G. Menzies, Ministerial Statement, 'Parliamentary
Under-Secretaries', 27 August 1952. J. R. Odgers, Australian
Senate Practice, 6th ed., Canberra, 1991, pp. 963-965.
- House of Representatives, Debates, p. 2450.
- House of Representatives, Debates, p. 434.
- See discussion in Senate Standing Committee on Constitutional
and Legal Affairs, The Constitutional Qualification of Members
of Parliament, 1981, pp. 68-71.
- House of Representatives, Debates, pp. 2243-2245.
- Senate Standing Committee on Constitutional and Legal Affairs,
The Constitutional Qualification of Members of Parliament,
1981, pp. 72-73.
- ibid., p. 69.
- ibid., p. 69.
- Constitutional Commission, Final Report, AGPS,
Canberra, 1988, vol. 1, p. 329.
- ibid., 1988, p. 316 and pp. 329-330.
- ibid., p. 296 and pp. 299-301.
- Solicitor-General, Opinion, 'Parliamentary
Secretaries' remuneration' tabled in the Senate, 17 February
2000. Attorney-General v Foster (1999) 84 FCR 582, pp.
593-594; Zoeller v Attorney-General (Cwth) and Others
(1987-88) 76 ALR 267.
- G. Lindell, 'Responsible Government', in Essays on Law and
Government Volume 1, Principles and Values, P. D. Finn, ed.,
Law Book Co., North Ryde, NSW, 1995, especially pp. 90-92.
- House of Representatives, Debates, 3 December 1980,
pp. 319-324. Opposition Speakers were the Hon. Bill Hayden, Hon.
Mick Young and Brian Howe MP.
- Remuneration Tribunal, Report on Senators and Members of
Parliament, Ministers and Holders of Parliamentary Office-Salaries
and Allowances for Expenses of Office, 7 December 1999.
- [2001] HCA 51, 6 September 2001.
- Gleeson CJ (paras 8-22), Gaudron J (paras 60-72), Gummow and
Hayne JJ (paras 209-225) and Kirby J (para 323).
- Gleeson CJ, para 19.
- Gleeson CJ, para 21.
- Convention Debates, Sydney, 3 April 1891, pp. 659-660, and
Convention Debates, Sydney, 21 September 1897, pp. 1022-1028.
- (1975) 132 CLR 270. Before Barwick CJ sitting alone.
- G. Carney, Members of Parliament: law and ethics, op.
cit., pp. 112-113.
- Most recently under the House of Commons Disqualification
(Declaration of Law) Act 1931 (UK); formerly the House of Commons
Disqualification Act 1782 (UK).
- G. Carney, Members of Parliament: Law and ethics, op.
cit., pp. 96-97: who notes a number of critical differences in the
wording of the Australian and UK prohibitions.
- Section 44(v) was, for instance, the subject of considerable
debate in relation to accusations made against Mr Warren Entsch
(Liberal, Leichhardt, QLD) in June 1999. See above. Refer House of
Representatives, Debates, 10 June 1999, pp. 6720-6735.
- House of Representatives, Debates, pp. 7698-7710.
- Australian Federal Politics and Law 1901-1929,
Melbourne University Press, Melbourne, 1956, p. 215.
- House of Representatives, Debates, pp. 1350-1362.
- Also referred to in D. Marr, Barwick, Allen and Unwin,
Sydney, 1980, pp. 280-281.
- House of Representatives, Debates, 10 June 1999, pp.
6720-6735.
- J. D. Hammond, 'Pecuniary Interest of Parliamentarians: A
Comment on the Webster case', Monash Law Review, vol. 3,
1976, p. 91; P J Hanks, 'Parliamentarians and the Electorate' op.
cit., p. 196; G. Carney, Members of Parliament: Law and
ethics, op. cit., pp. 95-113.
- A view which His Honour also appears to have entertained for a
time. Refer: J. D. Hammond, 'Pecuniary Interest of
Parliamentarians: A Comment on the Webster Case', op. cit., p. 92.
- (1975) 132 CLR 270 at pp. 278-279.
- J. D. Hammond, 'Pecuniary Interest of Parliamentarians: A
Comment on the Webster Case', op. cit., especially pp. 97-100.
- Isaac Isaacs (Victoria), Convention Debates, Sydney, 21
September 1897, p. 1023.
- J. D. Hammond, 'Pecuniary Interest of Parliamentarians: A
Comment on the Webster Case', op. cit., p. 100.
- G. Evans, 'Pecuniary Interests of Members of Parliament under
the Australian Constitution', Australian Law Journal, vol.
49, August 1975, p. 477. Evans also concluded that the provisions
were capable of 'relatively precise, narrow and acceptable
application' and suggested that the Houses should develop a set of
guidelines for dealing with pecuniary interest matters under
section 47 of the Constitution. Such guidelines would not be
legally binding but they would, as Evans suggests, be difficult to
ignore and would reduce the risk of decisions being taken to
further partisan ends.
- ibid., p. 465.
- For example, G. Carney, Members of Parliament: Law and
ethics, op. cit., p. 100.
- House of Representatives, Debates, 10 June 1999, pp
6720-6735. Henry Burmester QC, Opinion, 'Section 44(v) of
the Constitution-Possible Disqualification of a Member', 9 June
1999.
- This ignores the wording of section 44(v), which leaves no room
for consideration of motives or intentions. It creates a strict
liability offence and was clearly intended to do so as indicated by
the words used in the provision and the relevant Convention
Debates.
- J. D. Hammond, 'Pecuniary Interest of Parliamentarians: A
Comment on the Webster Case', op. cit., p. 91.
- G. Carney, Members of Parliament: Law and ethics, op.
cit., pp. 104-105. As Carney acknowledges, the test has much in
common with a proposal developed by the Senate Standing Committee
on Legal Affairs in its 1981 Report.
- The Senate in setting up an all party committee to review the
matter has recently attempted to pursue a non-partisan and more
considered approach in respect of the accusations made against
Senator Scullion.
- Dr Andrew Theophanous, the former ALP member for the Victorian
seat of Calwell, was convicted of bribery, fraud and conspiracy by
the Victorian County Court on 22 May 2002. The offences were
committed during his time as a member of the House of
Representatives but his trial was not completed prior to the 2001
General Election at which Dr Theophanous-by then an independent
member-failed to retain his seat.
- Senate Standing Committee of Privileges, Tenth Report,
'Detention of a Senator', Parliamentary Paper No. 433/1986, 5
December 1986, see especially p. 10.
- Senator Vallentine was a Senator from 1 July 1985 until her
resignation on 31 January 1992. She was a member of the West
Australian Greens Party at the time of her resignation having been
a member of the Nuclear Disarmament Party and also an Independent
Senator.
- Keith Wright (ALP/Independent, Capricornia, Qld) was convicted
of various sexual offences in 1993 and 1994. He was defeated at the
March 1993 General Election. Michael Cobb (National Party, Parkes,
NSW) was found guilty on several charges of imposing on the
Commonwealth and one of fraud and was given a two year suspended
sentence on 16 November 1998 and a fine. Mr Cobb retired from
Parliament prior to the October 1998 General Election. Former
Senator Robert Woods (Liberal, NSW) was sentenced on 17 June 1999
having pleaded guilty to several charges of defrauding the
Commonwealth. Senator Woods had resigned from Parliament on 7 March
1997. In addition, at the time of his retirement from the Senate on
30 June 1999, Mal Colston (ALP/Ind, Qld) was facing the prospect of
a number of criminal charges carrying a penalty which would, had he
been convicted, possibly have led to his disqualification under
section 44(ii).
- Dr Carmen Lawrence (ALP, Fremantle) was acquitted on 23 July
1999 by the Perth District Court of perjury charges arising out of
the Marks Royal Commission. Senator Andrew Murray (Australian
Democrats, WA) was acquitted on 9 March 2000 of an assault charge
arising out of an incident in which he was seeking to protect his
pet dog from attack by a larger animal.
- This arcane expression probably means that anyone ever
convicted of treason against Australia is permanently disqualified.
- Senate Standing Committee on Constitutional and Legal Affairs,
'The Constitutional Qualification of Members of Parliament',
Report, 1981, pp. 16-18. The Senate Committee would have
restricted the ambit of the disqualification to only include
treasonable acts against the Commonwealth. Later assessments have
favoured the retention of the automatic disqualification for
treason in its original form, i.e. encompassing acts against the
States and Territories. Gerard Carney, Members of Parliament:
law and ethics, op. cit., pp. 39-40.
- Convention Debates, Sydney, 3 April 1891, pp. 655-59, and
Convention Debates, 21 September 1897, pp. 1020-1022.
- Senate Standing Committee on Constitutional and Legal Affairs,
'The Constitutional Qualification of Members of Parliament',
Report, 1981, p. 19.
- ibid., pp. 19-20.
- 167 CLR 133.
- G. Carney, Members of Parliament: law and ethics, op.
cit., p. 41; and Senate Standing Committee on Constitutional and
Legal Affairs, 'The Constitutional Qualification of Members of
Parliament', op. cit., pp. 20-21.
- As may have been the case in respect of Senator George Georges
- Refer: Senate Standing Committee of Privileges, Tenth
Report, 'Detention of a Senator', op. cit., pp. 5-6 and 10.
Senate Standing Committee on Constitutional and Legal Affairs,
'The Constitutional Qualification of Members of
Parliament', op. cit., p. 21.
- Usually constituted by a single judge of the High Court.
However, the Court may refer matters to the Federal Court of
Australia or to the Supreme Court of a State or Territory. See
section 354 of the Commonwealth Electoral Act 1918.
- Commonwealth Electoral Act 1902, sections 193-206.
- Commonwealth Electoral Act 1902, section 192.
- Commonwealth Electoral Act 1902, section 96,
renumbered as section 70 in 1918.
- Section 69 still specifically tied candidates' nomination
requirements to the relevant constitutional provisions-sections 16,
34 and 43-45.
- Commonwealth Electoral Act 1918 section 39(4)
subsequently renumbered as paragraph 93(8)(a).
- Local Government Association of Queensland (Incorporated) v
State of Queensland SC No. 9276 of 2001. Refer also:
Smith v Oldham (1912) 15 CLR 302, 317 and Dixon J in
Nelungaloo v The Commonwealth (1952) 85 CLR 545, p. 564.
Davies JA dissented on the question of the exclusivity of
Commonwealth power.
- For further detail, see Professor C. Saunders, 'Parliament as
Partner: A Century of Constitutional Review', Research
Paper No. 3, 2000-2001, Department of Parliamentary Library,
Canberra, 15 August 2000, pp. 15-16. See also Parliament: The
Vision in Hindsight, edited G. Lindell and R. Bennett,
Federation Press, Sydney, 2001.
- Commonwealth of Australia, Report of the Royal Commission
on the Constitution, 1929, at pp. 29-30 and 269.
- Section 5.
- Commonwealth Electoral Act 1918-49, section 39(1).
- Commonwealth Electoral Act 1918-49, section 69.
- Commonwealth Electoral Act, section 93. See G. Carney,
Members of Parliament: law and ethics, op. cit., 2000, pp.
12-14. Professor Carney notes that this particular drafting device
also prevents persons holding a temporary entry permit, persons who
are unlawful non-citizens under the Migration Act 1958,
and those serving a sentence of five years or longer for an offence
under Commonwealth, State or Territory law from standing for
Parliament.
- Commonwealth Electoral Act 1918, paragraph 93(8)(a)
and section 163(1).
- For an overview of the Parliamentary Joint Committee's work
see: Professor Cheryl Saunders, 'Parliament as Partner: A Century
of Constitutional Review', op. cit., pp. 19-21.
- In King v Jones (1972) 128 CLR 221, the High Court
unanimously rejected the argument that section 41 of the
Constitution could be read as conferring a right to vote at 18 by
virtue of changing conceptions of adulthood in the period since
federation.
- Commonwealth Electoral Act 1973, section 6 amended
what is now paragraph 163(1)(a) of the Commonwealth Electoral
Act 1918.
- Edwin Corby (ALP, Swan, WA) elected on 26 October 1918.
- Senator Natasha Stott Despoja (Australian Democrats, SA)
elected to the Senate on 2 March 1996. She had been appointed to
the Senate on 29 November 1995. Senator Bill O'Chee (National, Qld)
was appointed to the Senate under section 15 of the Constitution on
8 May 1990 aged 24 years and 10 months.
- See Appendix 2.
- Joint Committee on Pecuniary Interests of Members of
Parliament, Report on Declaration of Interests,
Parliamentary Paper No.182 of 1975, p. 45.
- ibid., pp. 47-49.
- Committee of Inquiry Concerning Public Duty and Private
Interest. The Committee reported on July 1979.
- The Hon. Nigel Bowen QC.
- Cited in the Report of the Committee of Inquiry Concerning
Public Duty and Private Interest, July 1979, p. 1.
- Cited in ibid., pp. 2-4.
- Chapters 7 and 15.
- On 7 March 1979.
- Senate Standing Committee on Constitutional and Legal Affairs,
Report, 'The Constitutional Qualifications of Members of
Parliament', 2 June 1981, p. 24.
- ibid., p. 58.
- ibid., pp. 54-55 and 60.
- ibid., pp. 72-73.
- ibid., p. 86.
- Constitution (Disclosures by Members) Amendment Act
1981 (NSW).
- Inserting new section 14A in the Constitution Act 1902
(NSW).
- Constitution (Disclosure by Members) Regulation 1983
(NSW).
- Having discussed qualifications and disqualification of members
at previous sessions. See references in Constitutional Commission,
Final Report, volume 1, 1988, op. cit., to all six
sessions of the Constitutional Convention 1973-85.
- Comprised of delegates drawn from Commonwealth and State
Parliaments, Territory Assemblies and local government. See
Professor C. Saunders, 'Parliament as Partner: A Century of
Constitutional Review', op. cit., pp. 21-23.
- The one significant exception being its disapproval of the 1981
Report's recommendation to allow members of one federal House to
stand for election to the other without first formally vacating
their existing seat. The amendment would have deemed them to have
resigned their old seat on the declaration of the poll for the one
subsequently contested in the other Chamber.
- For one such exchange see: Convention Debates, Sydney, 21
September 1897, pp. 1012-1015.
- S. O'Brien, 'Dual Citizenship, Foreign Allegiance and s. 44(i)
of the Australian Constitution', op. cit., pp. 46-48.
- Refer: Australian Citizenship Legislation Amendment Bill 2000.
- G. Carney, Members of Parliament: law and ethics, op.
cit., p. 13.
- Subsection 99(5) provides, however, the validity of an
enrolment may not be challenged on the basis that the person
enrolled did not in fact live in the nominated electorate for a
period of one month.
- Refer Joint Select Committee on Parliamentary Privilege,
Report, 1987, pp. 122-126.
- See Professor C. Saunders, 'Parliament as Partner: A Century of
Constitutional Review', op. cit., pp. 16-18.
- Constitutional Commission, Final Report, volume 1,
1988, op. cit., pp. 160-164 and 263-307.
- ibid., p. 283.
- ibid., p. 289.
- ibid., pp. 295-296.
- ibid., pp. 296-301. The Constitutional Commission's proposal
would have, subject to any exemption enacted by the Parliament,
disqualified aldermen in local councils-a significant feeder-group
for the Parliament.
- Constitutional Commission, Final Report, vol. 1, 1988,
op. cit., pp. 301-304.
- It is not entirely clear from the body of the Report that this
was their intention.
- ibid., pp 304-307.
- ibid., p. 304.
- Professor C. Saunders, 'Parliament as Partner: A Century of
Constitutional Review', op. cit., p. 18.
- For details of the proposals and the referendum results see:
House of Representatives Standing Committee on Legal and
Constitutional Affairs, Constitutional Change: Selected sources
on Constitutional Change in Australia, 1901-1997, February
1997, pp. 110-114.
- See B. Galligan, 'The 1988 Referendums and Australia's Record
on Constitutional Change', Parliamentary Affairs, October
1990, pp. 497-506, Professor C. Saunders, 'Parliament as Partner: A
Century of Constitutional Review', op. cit., p. 18.
- House of Representatives, Debates, 25 August 1997, pp.
6665-6667: Tabling speech by the Chair of the Committee, Kevin
Andrews (Liberal, Menzies, Vic).
- House of Representatives Standing Committee on Legal and
Constitutional Affairs, Report, 'Aspects of section 44 of
the Australian Constitution', July 1997, especially at pp. 20,
38-39, and 59-61.
- House of Representatives, Debates, p. 12104.
- Letter from the Attorney-General to the Chair of the House of
Representatives Standing Committee on Legal and Constitutional
Affairs, 2 December 1997.
- House of Representatives Standing Committee on Legal and
Constitutional Affairs, Report, 'Aspects of section 44 of
the Australian Constitution', July 1997, pp. 98-99.
- June 2000.
- Joint Standing Committee on Electoral Matters, Report,
The 1998 Federal Election, June 2000, pp. 141-144.
- ibid., pp. 180-182.
- ibid., p. 181.
- Dr H. Irving, 'Commentary' in Power, Parliament and the
People, M. Coper and G. Williams, eds., Federation Press,
Sydney, 1997, p. 119.
- G. Bolton, Edmund Barton: the man for the job, Allen
and Unwin, Melbourne, 2000.
- L. F. Crisp, Australian National Government, 5th ed.,
1983, and Federation Fathers, Carlton, 1990.
- Convention Debates, Sydney, 21 September 1897, pp. 1024-25.
- ibid., pp. 1012-1014.
- H. Mackey, Reinventing Australia, Angus and Robertson,
Sydney, 1993, pp. 169-184.
- Morgan Poll, 'Nursing and Pharmacy Most Respected Professions',
published in The Bulletin, 29 June 1999.
- D. Adams, 'Howard: Never Great, Always Adequate', in The
Howard Government, Gwynneth Singleton, ed., UNSW Press,
Sydney, 2000, pp. 13-25.
- Dr Carmen Lawrence, Address to the Sydney Institute, August
2000.
- Convention Debates, Sydney, 21 September 1897, p. 1014, and
Convention Debates, Melbourne, 9 February 1898, for
example H. B. Higgins (of Victoria) at pp. 768-769.
- Had the House acted after a charge of sedition had been heard
by the courts, the processes available under sections 44(i), 45(ii)
and 47 would arguably have provided a fairer and more defensible
result than that which was arrived at under section 49 of the
Constitution. Again, note the Parliament has repealed the power of
each House to expel members but not their power to suspend with
cause.
- Dr Carmen Lawrence, op. cit., p. 3.
- S. Bach, 'The Office of Speaker in Comparative Perspective',
Journal of Legislative Studies, vol. 5, 1999, pp. 209-254.
- Arguably their effect would be greater if they were better
known or more widely understood than are the current provisions.
- Evidence to the House of Representatives Standing Committee on
Legal and Constitutional Affairs, Report,
'Aspects of section 44 of the Australian Constitution',
July 1997, at pp. 20 and 60.
- D. Z Cass and S. Burrows, 'Commonwealth Regulation of Campaign
Finance-Public Funding, Disclosure and Expenditure Limits,
Sydney Law Review, vol. 22, December 2000, pp. 477-526, at
p. 478.
- The Senate Register came into being only after a series of long
delays. Dr L. Young, 'Parliamentarians and Outside Employment',
Research Note, no. 50, 1995-96, Department of the
Parliamentary Library, Canberra. For further detail on the
respective Senate and House registers, see: Australian Senate,
Standing Orders and other orders of the Senate, February 2000, pp.
135-142 and Senate Standing Order 22A; and House of
Representatives, Standing and Sessional Orders, February 2000, pp.
113-116 and Standing and Sessional Order 329.
- See House of Representatives Practice, 3rd ed., 1997,
pp. 164-166 for further detail.
- Public Service Act 1999 replaced the much amended
Public Service Act 1922.
- Auditor-General Act 1997 and three associated acts
replaced the Audit Act 1901.
- House of Representatives Practice, 3rd ed., 1997, p.
166.
- J. Howard, A Guide on Key Elements of Ministerial
Responsibility, tabled in the House of Representatives on 30
April 1996.
- A [revised] Guide on Key Elements of Ministerial
Responsibility, issued December 1998. However, changes to the
Code of Conduct were mooted by the Prime Minister before the 1998
General Election. See Sydney Morning Herald, 17 September
1998.
- The resignations from Executive Office were Senator James Short
(Liberal, Vic.) 14 October 1996, Senator Brian Gibson
(Liberal, Tas.) 15 October 1996, Senator Robert Woods (Liberal,
NSW) 3 February 1997, Geoffrey Prosser (Liberal, Forrest, WA) 18
July 1997, David Jull (Liberal, Fadden, Qld) 25 September 1997,
John Sharp (National Party, Gilmore, NSW) 25 September 1997,
Peter McGauran (National Party, Gippsland, Vic.), and Grahame
Morris, Prime Minister's senior adviser, resigned on 26 September
1996.
- Australian National Audit Office, Audit Report No. 12,
1998-99, 'Taxation Reform, Community Education and Information
Programme'.
- The Charter of Political Honesty Bill 2000; Electoral Amendment
(Political Honesty Bill 2000; Government Advertising (Objectivity,
Fairness and Accountability) Bill 2000; Auditor of Parliamentary
Allowances and Entitlements Bill 2000 [No. 2]. The former two Bills
were sponsored by the Australian Democrats; the latter two by the
Australian Labor Party. All four Bills were being examined by the
Senate Standing Committee on Finance and Public Administration when
the Parliament was prorogued on 8 October 2001.
- Discussed in H. R. Wilson, 'Ethics and the Canadian
Experience', Papers on Parliament No.35, Senate Occasional
Lecture Series, Department of the Senate, June 2000.
- As amply demonstrated at the State level. Refer A. Twomey,
The Constitution of NSW, Federation Press (forthcoming).
- For example, the 'no' campaign in the 1967 referendum to break
the 'nexus' between numbers in the House and the Senate was largely
built around the claim that a 'no vote' would mean fewer
politicians.
- Refer to this paper's discussion of the appointment of Mr
Albert Patrick Field to the Senate in 1975.
- Such as calls from new Opposition leaders for parliamentary
reform. Ross Peake, 'ALP plan to raise standards in House',
Canberra Times, 8 February 2002.
- The Australian, Editorial, 3 April 2002; John
Nethercote, 'Hearings unearth critical issues', Canberra
Times, 4 April 2002. Ian Holland, 'Post-separation Employment
of Ministers, op cit, May 2002.
- A particular focus being the unsubstantiated and subsequently
discredited attacks made on High Court Judge Michael Kirby under
parliamentary privilege by Senator Bill Heffernan (Liberal, NSW) in
the Senate March 2002.
- Canberra Times, Editorial, 11 March 2002;
Maria Maley, 'Political advisers should be protected', Canberra
Times, 19 March 2002; Sydney Morning Herald, 'The
silence of the backroom boys' Editorial, 1 April 2002; Senator
Andrew Murray, 'Ministerial advisers must account for their
actions', Canberra Times, 9 April 2002; Kirsten Lawson,
'Clerks in row over Reith appearance', Canberra Times, 13
April 2002; Verona Burgess, 'Abbott against rules for staffers',
Canberra Times, 23 May 2002; and Kirsten Lawson, Immunity
claim rejected', Canberra Times, 25 May 2002.
- Dr Andrew Theophanous, the former member for Calwell in
Victoria.
- With proposals advanced by retiring Liberal Party treasurer, Mr
Ron Walker, receiving considerable attention. See: Ross Peake,
'Longer terms for MPs unlikely', Canberra Times,
14 April 2002.
- Senate, Debates, op. cit, 14 May 2002.
Extracts from the
Commonwealth of Australia Constitution Act 1900
Section 16 Qualifications of a
Senator.
The qualifications of a senator shall be the
same as those of a member of the House of Representatives.
Section 20 Vacancy by
absence.
The place of a Senator shall become vacant if
for two consecutive months of any session of the Parliament he,
without the permission of the Senate, fails to attend the
Senate.
Refer:
Senate and House of Representatives, Debates, 13
October 1903, p. 6000: exclusion of Senator John Ferguson (Free
Trade, Queensland).
Section 30 Qualification of
electors.
Until the Parliament otherwise provides, the
qualification of electors of the House of Representatives shall be
in each State that which is prescribed by the Law of the State as
the qualification of electors of the more numerous House of
Parliament of the State, but in the choosing of members each
elector shall have only one vote.
Section 34 Qualifications of
members.
Until the Parliament otherwise provides, the
qualifications of a member of the House of Representatives shall be
as follows:
(i.)he must be of the full age of twenty-one
years, and must be an elector entitled to vote at the election of
members of the House of Representatives, or a person qualified to
become such elector, and must have been for three years at the
least a resident within the limits of the Commonwealth as existing
at the time when he is chosen;
(ii.) he must be a subject of the Queen, either
natural-born or for at least five years naturalized under a law of
the United Kingdom, or of a Colony which has become or becomes a
State, or of the Commonwealth, or of a State.
Section 38 Vacancy by
absence.
The place of a member shall become vacant if for
two consecutive months of any session of the Parliament he, without
the permission of the House, fails to attend the House.
Refer:
Senate and House of Representatives,
Debates, 13 October 1903, p. 6000: exclusion of Senator
John Ferguson (Free Trade, Queensland).
Section 43 Member of one House
ineligible for other.
A member of either House of the Parliament shall
be incapable of being chosen or of sitting as a member of the other
House.
Refer:
Sykes v Cleary (1992) 176 CLR 77
regarding meaning of 'incapable of being chosen' in sections 43 and
44.
Section 44
Disqualification.
Any person who:
(i.)Is under any acknowledgment of allegiance,
obedience, or adherence to a foreign power, or is a subject or a
citizen or entitled to the rights or privileges of a subject or a
citizen of a foreign power; or
Refer:
Sarina v O'Connor (1946) High Court
unreported.
Crittenden v Anderson (1950) High Court
unreported.
Nile v Wood (1987) 167 CLR 133.
In Re Wood (1988) 167 CLR 145
Free v Kelly (1996) 185 CLR 296
Sykes v Cleary (1992) 176 CLR 77
Sue v Hill (1999) 199 CLR 462
(ii.)Is attainted of treason, or has been
convicted and is under sentence, or subject to be sentenced, for
any offence punishable under the law of the Commonwealth or of a
State by imprisonment for one year or longer; or
(iii.)Is an undischarged bankrupt or insolvent;
or
Refer:
Stott v Parker (1939) SASR 98. Decision
on similar provision in the SA Constitution by the Supreme Court of
SA.
Nile v Wood (1988) 167 CLR 133 at p.140
on meaning of insolvent being 'adjudicated insolvent'.
(iv.)Holds any office of profit under the Crown,
or any pension payable during the pleasure of the Crown out of any
of the revenues of the Commonwealth; or
Refer:
Nile v Wood (1988) 167 CLR 133.
Free v Kelly (1996) 185 CLR 296.
Sykes v Cleary (1992) 176 CLR 77.
House of Representatives, Debates, 7
March 1962, pp. 585-586 regarding employment status of
Senator-elect Douglas McClelland (Labor, NSW).
Senate, Debates, 20 May 1996 to 29 May
1996, pp. 725 to 1249 regarding the status of Senator-elect Jeannie
Ferris (Liberal, SA).
(v.)Has any direct or indirect pecuniary
interest in any agreement with the Public Service of the
Commonwealth otherwise than as a member and in common with the
other members of an incorporated company consisting of more than
twenty-five persons;
- Refer:
Re Webster (1975) 132 CLR 270.
Senate and House of Representatives,
Debates, 22 April 1921, pp. 7698-7710.
Senate and House of Representatives,
Debates, 18 June 1924, pp. 1350-1362.
Senate, Debates, 15-16 and 21-22 April
1975, at pp. 981-984, 1027-1028, 1139-1142, 1198-1223 and House of
Representatives, Debates, 16 April 1975, pp 1661-1662.
House of Representatives, Debates, 10
June 1999, pp. 6720-6735.
shall be incapable of being chosen or of sitting
as a senator or a member of the House of Representatives.
But subsection iv does not apply to the office
of any of the Queen's Ministers of State for the Commonwealth, or
of any of the Queen's Ministers for a State, or to the receipt of
pay, half pay, or a pension, by any person as an officer or member
of the Queen's navy or army, or to the receipt of pay as an officer
or member of the naval or military forces of the Commonwealth by
any person whose services are not wholly employed by the
Commonwealth.
Refer:
Ex parte Taylor (2001) High Court of
Australia unreported at time of writing. Case concerned challenge
to the status of Assistant Ministers.
Section 45 Vacancy on happening of
disqualification
If a senator or member of the House of
Representatives:
(i.)Becomes subject to any of the disabilities
mentioned in the last preceding section; or
(ii.)Takes the benefit, whether by assignment,
composition, or otherwise, of any law relating to bankrupt or
insolvent debtors; or
Refer:
Stott v Parker (1939) SASR 98. Decision
on similar provision in the SA Constitution by the Supreme Court of
SA.
Nile v Wood (1988) 167 CLR 133 at p.
140 on meaning of insolvent being 'adjudicated insolvent'.
House of Representatives, Debates, 5
May 1977, pp. 719-721 and pp. 1598-1610 regarding the status of
Michael Baume (Liberal, Macarthur, NSW)
-
- 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;
his place shall thereupon become vacant.
Section 46 Penalty for sitting when
disqualified
Until the Parliament otherwise provides, any
person declared by this Constitution to be incapable of sitting as
a senator or as a member of the House of Representatives shall, for
every day on which he so sits, be liable to pay the sum of one
hundred pounds to any person who sues for it in any court of
competent jurisdiction.
Refer:
Senate, Debates, 9 September 1975, p. 606 and 1 October
1975, p. 823.
Section 47 Disputed
elections
Until the Parliament otherwise provides, any
question respecting the qualification of a senator or of a member
of the House of Representatives, or respecting a vacancy in either
House of the Parliament, and any question of a disputed election to
either House, shall be determined by the House in which the
question arises.
Refer:
R v Governor of South Australia (1907) 4 CLR 1497.
Re Webster (1975) 132 CLR 270.
Re Wood (1988) 167 CLR 145.
Muldowney v Australian Electoral Commission (1993) 178
CLR 34.
Sykes v Cleary (1992) 107 ALR 577 per Dawson J at p.
579.
Sue v Hill (1999) 199 CLR 462
Senate, Debates, 15-16 and 21-22 April 1975, at pp.
981-984, 1027-1028, 1139-1142, 1198-1223 and House of
Representatives, Debates, 16 April 1975, pp 1661-1662.
House of Representatives, Debates, 10
June 1999, pp. 6720-6735.
Section 48 Allowance to
members
Until the Parliament otherwise provides, each
senator and each member of the House of Representatives shall
receive an allowance of four hundred pounds a year, to be reckoned
from the day on which he takes his seat.
Section 49 Privileges etc. of
Houses
The powers, privileges, and immunities of the
Senate and of the House of Representatives, and of the members and
the committees of each House, shall be such as are declared by the
Parliament, and until declared shall be those of the Commons House
of Parliament of the United Kingdom, and of its members and
committees, at the establishment of the Commonwealth.
Section 50 Rules and Orders
Each House of the Parliament shall make rules
and orders with respect to-
(i)The mode in which its powers, privileges and
immunities may be exercised and upheld:
The order and conduct of its business and the
proceedings either separately or jointly with the other House.
Section 51 (xxxvi) Legislative powers of
the Parliament
The parliament shall, subject to this
Constitution, have power to make laws for the peace, order, and
good government of the Commonwealth with respect to: -
(xxxvi) Matters in respect of which this
Constitution makes provision until the Parliament otherwise
provides:
Table 1: Members of the House
of Representatives who entered Parliament under the age of 26 since
1901
Name (Born/Died)
|
Division
|
State/
Territory
|
Date of election
|
Date ceased to be a Member
|
Party
|
Corboy, Edwin Wilkie
(24.8.1896-6.8.1950)
22 years 2 months
|
Swan
|
WA
|
26.10.181
|
Defeated 13.12.19
|
ALP
|
Jones, Andrew Thomas
(26.5.1944- )
22 years 6 months
|
Adelaide
|
SA
|
26.11.66
|
Defeated 25.10.69
|
LIB
|
Frazer, Charles Edward
(2.1.1880-25.11.1913)
23 years 11 months
|
Kalgoorlie
|
WA
|
16.12.03
|
Died
25.11.13
|
ALP
|
Falkinder, Charles William Jackson
(29.8.1921-11.7.1993)
25 years
|
Franklin
|
Tas.
|
28.9.46
|
Retired 31.10.66
|
LIB
|
Zahra, Christian John
(8.4.1973- )
25 years 5 months
|
McMillan
|
Vic.
|
3.10.98
|
|
ALP
|
Punch, Gary Francis
(21.8.1957- )
25 years 6 months
|
Barton
|
NSW
|
5.3.83
|
Retired 29.1.96
|
ALP
|
Fraser, John Malcolm
(21.5.1930- )
25 years 6 months
|
Wannon
|
Vic.
|
10.12.55
|
Resigned 31.3.83
|
LIB
|
Pyne, Christopher Maurice
(13.8.1967- )
25 years 7 months
|
Sturt
|
SA
|
13.3.93
|
|
LIB
|
Keating, Paul John
(18.1.1944- )
25 years 9 months
|
Blaxland
|
NSW
|
25.10.69
|
Resigned 23.4.96
|
ALP
|
Porter, James Robert
(19.2.1950- )
25 years 9 months
|
Barker
|
SA
|
13.12.75
|
Retired 19.2.90
|
LIB
|
Source: Parliamentary Handbook,
various years.
Table
2:Senators who entered Parliament under the
age of 30 since 1901
Name (Born/Died)
Age commenced
|
State
|
Party
|
Period of service
|
O'Chee, William George
(19.6.1965- )
24 years 10 months
|
Qld
|
NPA
|
*8.5.90-30.6.99
|
Stott Despoja, Natasha Jessica
(9.9.1969- )
26 years 2 months
|
SA
|
AD
|
*29.11.95-
|
Foll, Hattil Spencer
(31.5.1890-7.7.1977)
27 years 1 month
|
Qld
|
NAT; UAP from 1931
|
1.7.17-30.6.47
|
Russell, Edward John
(10.8.1878-18.7.1925)
28 years 4 months
|
Vic.
|
ALP; NAT from 1917
|
1.1.07-30.7.14; 5.9.14-died 18.7.25
|
Keating, John Henry
(28.6.1872-31.10.1940)
28 years 9 months
|
Tas.
|
PROT; LIB from 1913
|
29.3.01-30.7.14; 5.9.14-30.6.23
|
Lundy, Kate Alexandra
(15.12.1967- )
29 years 2 months
|
ACT
|
ALP
|
2.3.96-2.10.98; 3.10.98-
|
Sowada, Karin Nicole
(1.11.1961- )
29 years 9 months
|
NSW
|
AD
|
*29.8.91-30.6.93
|
Armstrong, John Ignatius
(6.7.1908-10.3.1977)
29 years 11 months
|
NSW
|
ALP
|
1.7.38-19.3.51; 28.4.51-30.6.62
|
Source: Parliamentary Handbook, various years.
* Selected under section 15 of the Constitution.