Constitutional restrictions on the right
to be elected as a member
While implications drawn from the Constitution prevent the placing of too
many restrictions on the right to vote, the Constitution itself imposes some
inflexible limits on the right to be elected as a member of either House or to
remain as a member. Section 44 provides:
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
(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
(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
(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;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.
Section 45 then provides that if a member becomes subject to any of the
above disabilities ‘his’ place thereupon becomes vacant. It also provides the
same penalty for a member who ‘takes the benefit’ of a bankruptcy law (e.g. by
composition with creditors) or who ‘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’. These last two are related to pars (iii) and (iv)
of s 44, but extend them somewhat; there are things one can do before becoming
a member that one can not do once elected. The Commonwealth Electoral Act
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1918 s 163 adds some extra requirements: a candidate must be 18 years old, an
Australian citizen and qualified to be an elector—so the disqualifications in s 93
of the Act apply as well, except where they have been found invalid as in Roach’s
case above.
Jurisdiction over qualification and electoral
matters
Section 47 provides that:
Until the Parliament otherwise provides, any question respecting the qualification of [a member], or respecting a vacancy in either House … and any
question of a disputed election to either House, shall be determined by the
House in which the question arises.
This is a hangover from the ancient and, by the 1890s, quite discredited
practice in Britain under which the determination of disputes over their own
membership was regarded as one of the privileges of the Houses of Parliament.
Of course, to expect a group of partisan politicians to be dispassionate about
a dispute which could affect the holding of a majority in the House is expecting rather too much; it is a breach of the principle that one should not judge
a cause in one’s own interest. So in 1868, the Parliamentary Elections Act 1868
(UK) conferred jurisdiction on two judges of the Court of Common Pleas
sitting as an Elections Court. Although several of the colonies had copied this
move before Federation, the drafters of the Constitution seemed to be living in
the past in this respect and copied the earlier British practice, though with a
provision for the Parliament to ‘otherwise provide’.
The Parliament did provide otherwise in the Commonwealth Electoral Act
1902, by which it made the High Court the Court of Disputed Returns, though
it retained a parallel jurisdiction over the qualifications of members for itself,
and occasionally exercises it. Because of this history, the High Court expressed
doubt for some time as to whether it was exercising judicial power when acting
as the Court of Disputed Returns, but by a majority of four votes to three the
Court held in Sue v Hill [1999] HCA 30; 199 CLR 462 that it was exercising
judicial power. As Gaudron J explained:
What is put in issue when the validity of an election is challenged is the
right of the person concerned to sit and vote in the Senate or in the House
of Representatives. That is a legal right “arising from the operation of the
law upon past events or conduct.”
We will see in Chapter 24 that this is a classical definition of the essence of
judicial power. In addition, the issue of whether someone is qualified under
s 44 is a matter arising under the Constitution and involving its interpretation,
under para 76(ii) of the Constitution, and is therefore part of the High Court’s
ordinary original jurisdiction.
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Summary of cases interpreting the
disqualifications
The case law in section 44 is of intense interest to those wishing to stand for
Parliament, but perhaps less fascinating to other lawyers. It is discussed thoroughly in the books by Carney and Orr listed in the Further Reading list, so is
merely summarised here:
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Section 44 stops a person from sitting as a member while disqualified, but
also stops them from ‘being chosen’. In Sykes v Cleary [1992] HCA 32; (1992)
107 ALR 577, it was held, Deane J dissenting, that the process of choice
commences at latest when the first votes can be cast and possibly when
nominations close.
The first part of para 44(i)—‘a person who is under any acknowledgment
of allegiance, obedience, or adherence to a foreign power’ presumably
disqualifies a broader range of people than those who have taken out foreign
citizenship, but its scope is unclear. In Nile v Wood [1987] HCA 62; 167 CLR
133, the fact that Senator Wood, a member of the Nuclear Disarmament
Party, had allegedly taken ‘actions against the vessels of a friendly nation’
was not enough to disqualify him.
The second part of para 44(i)—‘ is a subject or citizen … of a foreign power’
was held in Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77 to disqualify
persons holding dual citizenship unless they have taken all reasonable steps to
divest themselves of any conflicting allegiance. In Sue v Hill [1999] HCA 30;
199 CLR 462, it was held that these days Britain is a foreign power.
Under para 44(ii) a person who is ‘attainted of treason’ is disqualified from
becoming a member. This is generally interpreted to mean anyone who has
been convicted of treason1, but historically ‘attainder’ referred to an extra
step beyond conviction whereby the accused was stripped of their rights.
Since this no longer occurs, it may be arguable that nobody is ‘attainted’ of
treason in the full, old sense any more.
In Nile v Wood the Court had to remind the objector that the provision
in para 44(ii) referring to a person who ‘has been convicted and is under
sentence’ is conjunctive; the fact that Senator Wood had once spent a month
in gaol and once been fined for his activities as a protestor2 was not enough.
In ‘undischarged bankrupt or insolvent’ in para 44(iii),‘undischarged’ qualifies
both bankrupt and insolvent so the ‘insolvent’ part only applies to a person
who has been found insolvent by court process and not yet discharged (Sykes v
Australian Electoral Commission [1993] HCA 36; (1993) 115 ALR 645).
The provision in para 44(iv) is derived from a provision in the Act of
Settlement 1701, inserted to ensure that the monarch could not subvert the
1 See Gerard Carney, Members of Parliament: Law and Ethics (Prospect Publishing, 2000), p 39.
2 See Ian Holland, ‘Current Issues Brief No 22 2002–03; Crime and Candidacy’ at <www.aph.gov.au/library/pubs/cib/2002-03/03cib22
.htm>. This paper offers an excellent critique of the para 44(ii) and compares it with provisions in the states and overseas.
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independence of Parliament by putting members on the royal payroll. These
days the rationale is that the Ministry should not be able to buy the support
of opposition members, independents or even rebellious backbenchers by
putting them on the government payroll. It was held in Sykes v Cleary [1992]
HCA 32; (1992) 107 ALR 577 to stop Cleary, a state school teacher, from
contesting the election, even though he was on leave when he nominated
and resigned from the teaching service before the declaration of the poll. The
Court held that ‘office of profit under the Crown’ must extend to all public
servants, Commonwealth or state, even if they were on leave. (Cleary was
elected in the repeat election.)
Paragraph 44(iv) is reinforced by para 45 (iii), the relevant part of which
declares that a member’s position vacant if he or she accepts any honorarium
for services rendered to the Commonwealth, or an honorarium (meaning,
in this case, a bribe) from any person or state for services rendered in the
Parliament. There is an exception for the ministers themselves, who can
receive a ministerial salary on top of their parliamentary pay.
There is also an oddly complex exemption for persons in ‘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’. In Free v Kelly (No 2) [1996]
HCA 42; (1996) 185 CLR 296, counsel for Free conceded that, as an Air Force
officer, she had been ineligible for election, but this has been questioned3.
She was elected in the repeat election in any case.
The second part of para 44(iv), ‘pension payable at the pleasure of the
Crown’ must be read literally—it applies to pensions where the Crown, or a
minister, can exercise pressure on the minister by threatening to withdraw
the pension. Pensions paid under the Social Security Act are not discretionary, so para 44(iv) does not disqualify a pensioner from standing for election
and, once elected, the pension would be terminated as parliamentary salaries
are somewhat above the pension means-test threshold.
The final disqualification, in para 44(v), applying to anyone having a pecuniary interest in an agreement with the Commonwealth, is intended to ensure
that the government cannot buy a member’s support by awarding a generous
contract to them. Unlike the other paragraphs, this one has been interpreted
quite favourably to members. In Re Webster [1975] HCA 22; (1975) 132
CLR 270, Barwick CJ held that the danger of excessive ‘Crown’ influence on
the member would arise particularly ‘from the continuing nature of [an]
agreement’ and that it did not apply where, as here, a number of contracts
had been made in response to a call for competitive tenders and each was
soon executed by delivery of the timber.
These disqualifications are expressed in language which reflected the
standard ideas of the 1890s, but which now seem too harsh in many respects.
The states, which had similarly-expressed disqualifications at the time of
3
4
Harry Evans (ed), Odgers’ Australian Senate Practice, Department of the Senate, 2008, Chapter 6.
CONSTITUTIONAL LAW
Federation, have been able to amend their Constitution Acts and electoral laws
to make the rules more compliant with modern notions of democracy. The
Constitutional Commission of the 1980s recommended repeal of several of
the paragraphs (or subsections, as the section itself refers to them)4 but, until
the major parties can agree on specific alterations, we remain stuck with these
archaic provisions.
Consequences of disqualification
If a member becomes disqualified after election, s 45 declares that the place
thereupon becomes vacant. If the member was an MHR, a by-election follows,
commenced by the issue of a writ under s 33. If a senator’s place is declared
vacant the procedure in s 15 follows; the Parliament of the relevant state must
meet in a joint sitting and elect a replacement senator from the same political
party.
However, if a member is found to have been disqualified when elected,
the election is ineffective; an ‘election is not completed when an unqualified
candidate is returned as elected. The return does not meet the exigency of
the writ’ (Re Wood [1988] HCA 22; (1988) 167 CLR 145 at [18]). For Senate
elections, the High Court has reasoned that, since the introduction of
proportional representation in 1949, another election is not necessary; since
someone who has voted for a disqualified candidate would probably have voted
for the next person on the party’s ticket, ordering the votes to be recounted
as if the disqualified candidate was not on the ballot will produce a fair result
(Re Wood at [19]–[20]). In the case of the House of Representatives, however,
the same logic does not apply (Sykes v Cleary, above, at [31]–[33]) and another
election must be held; technically it is not a by-election, but a second attempt
to conduct the original election.
In addition to the loss of a person’s seat in Parliament, the Constitution
provided another penalty. Section 46 provides, until the Parliament otherwise
provides, for anyone who sits while disqualified to pay a penalty of £100 for each
day on which the person sat to any person who sues in a court of competent
jurisdiction. Such ‘common informer’ provisions used to be common in
English law, but the provisions and the informers were generally regarded with
scorn. The feeling that it was wrong to enable people to make money from the
misdeeds of others, and the suspicion that many proceedings were ‘brought
solely for purposes of revenge without any thought of safeguarding the public
interest’ led to most similar English provisions being repealed in England by the
Common Informers Act 19515. For similar reasons the Parliament enacted the
Common Informers (Parliamentary Disqualifications) Act 1975, providing otherwise by limiting the penalty to $200 for all the time the disqualified member
had sat before the initiation of the action and only providing a ‘per day’ penalty
if the member continued to sit after service of process.
4 Constitutional Commission, Final Report, AGPS, 1988.
5 See JLJ Edwards, ‘Common Informers Act 1951’ (1951) 14 Mod LR 462.
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