The thing that you very quickly realise with any survey of the Australian Constitution is how much it doesn't say. Part III which sets up the House of Representatives, spells out the mechanics of the House and precious little else.
There is nothing to do with where the members sit in the chamber, there is nothing at all to do witb te interaction of political parties with legislation, and there is nothing to do with executive cabinet or any of the ministers, much less the office of Prime Minister, or even if one needs to exist. Also, nowhere in here does it say that the House has the power to make or unmake itself.
Part III is therefore little more than an expanded formal version of what might appear in Joske's Rules For Meetings. All of the conventions inside the House, including the Standing Orders, are nothing more than convention and have practically zero legal weight.
This then is Part III:
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Part III - The House of Representatives
24. Constitution of House of Representatives
The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.
The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner:
a quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators;
the number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State.
But notwithstanding anything in this section, five members at least shall be chosen in each Original State.
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Section 24 with its requirement that the House be roughly twice the size of the Senate, is as the result of a series of referenda to do with what became known as the nexus provisions. The Senate is by design, supposed to be unrepresentative and people often look to the fact that Tasmania which has less people than Western Sydney has 12 Senators whereas if you look in the House, just the people of Western Sydney if they wanted to, could cancel out the votes of Tasmania forever.
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25. Provisions as to races disqualified from voting
For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.
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There have been rather well made arguments that Section 25 is very obviously racist and was deliberately put in to diminish the power of the votes of First Peoples in Queensland and South Australia (which included what is now the Northern Territory). The argument quite honestly says that because this is a Section which reflects a racist past, that we as a country should move on from it and repeal it.
I like the argument.
I also like the real world provisions which have been placed which render Section 25 inoperative by legislation. Things like the Racial Discrimination Act 1975, and changes to the Electoral Act 1918, mean that there are no people who are "disqualified from voting at elections" on the basis of race.
I think that if Section 25 is going to be repealed that it should be still included in things like the official publication of the Constitution and just like Section 127, be marked with a strikethrough.
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26. Representatives in first Parliament
Notwithstanding anything in section twenty-four, the number of members to be chosen in each State at the first election shall be as follows:
New South Wales - twenty-three;
Victoria - twenty;
Queensland - eight;
South Australia - six;
Tasmania - five;
Provided that if Western Australia is an Original State, the numbers shall be as follows:
New South Wales - twenty-six;
Victoria - twenty-three;
Queensland - nine;
South Australia - seven;
Western Australia - five;
Tasmania - five.
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26 + 23 + 9 + 7 + 5 + 5 = 75
Already you can see in the first parliament that NSW had more than a third of all members in the House. By itself, if everyone in NSW chose to all vote the same way, it could have completely negated the wishes of three states.
Yes, the Senate is unrepresentative but it was always designed to be so. The House, which is representative according roughly to population already fulfils that function.
I do no think that people who dislike the Senate on the basis that Tasmania or South Australia have equal representation as NSW, appreciate that not only is the Senate explicitly barred from introducing money bills but that even legislation introduced in the Senate still has to be sent to the House for approval.
Any talk about minor parties becoming king makers in the Senate, misses the point that not only will you not find any mention of the Prime Minister but you will also find no mention of political parties either in the Constitution. Parliament could just as easily survive without them and demonstrably, State parliaments actually did so before the invention of party machines to game the system.
In fact, the Labor Party didn't get its first Prime Minister until 1910 and the Liberal Party didn't get its first Prime Minister until 1949. At federation, the Federal Parliament was a mish-mash of Protectionist, anti-Protectionist, Free Soil, Labor, Liberal (old), and independents all yelling furiously at and across each other.
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27. Alteration of number of members
Subject to this Constitution, the Parliament may make laws for increasing or diminishing the number of the members of the House of Representatives.
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When the parliament was started, there were 75 members in the House and 36 in the Senate. There are now 151 members in the House and 76 in the Senate. The number of members in most states has gone upwards except for Tasmania which still has five and there have been occasions where during the reallotment of members after a census, then some states have lost members.
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28. Duration of House of Representatives
Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General.
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Australia learned from the United States' House of Representatives that two years is way too short to be able to get anything done. As soon as a government has settled in, they're already back into campaign mode. In the United States, the primary system means that for 8 months of 24 or a full third of the time. Likewise, the US Senate has Senators which sit for 6 years; which seems like a long time until you realise that the upper house has one-third of its members up for election along with the House. Th President of the United States sits for four years; which is fine if you have a benevolent ruler but if you have a complete knave in power, then those four years drag along.
The 1898 Convention finally decided that three years was about right for the House and six years for the Senate. Before the 2022 general election, I saw calls for Australia to adopt fixed terms but that really fails to address the nub of the problem: how do you get rid of bad government? Fixed terms don't actually address the issue but they feel like they should; hence the angst in late 2021 and early 2022.
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29. Electoral divisions
Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State may make laws for determining the divisions in each State for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division. A division shall not be formed out of parts of different States.
In the absence of other provision, each State shall be one electorate.
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The Parliament has provided otherwise. The Electoral Act 1918 is the piece of legislation which determines the divisions in each State for which members of the House of Representatives may be chosen. It could have been possible for the states to arrive at multiple-member districts and that was the case for the very first election in the state of South Australia. Instead, we arrived at single member districts and the Australian Electoral Commission draws the boundaries.
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30. Qualification of electors
Until the Parliament otherwise provides, the qualification of electors of members 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 vote only once.
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The Parliament has provided otherwise. The Electoral Act 1918 is the piece of legislation which determines the qualification of electors of members.
Currently, voting is compulsory and the voting age is 18. Both of these things are excellent.
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31. Application of State laws
Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives.
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The Parliament has provided otherwise. The Electoral Act 1918 is the piece of legislation which determines the nature of how elections are conducted.
There is a great deal of the newly minted Federal Parliament trying to cover the legislative holds that it would immediately find itself in, by virtue of being newly minted. The number of laws which were passed by the Federal Parliament would begin at zero. This means that for a brief period of time, the only law which actually applied to the Commonwealth of Australia was in fact the Constitution; so of course it had no provisions on how to conduct elections. Why should it? The Constitution is the standing ruleset which determined how you make laws and not what those laws are.
This also has the rather insidious consequence that the various state laws which were in place at the time, had some rather nasty implications. Depending on where you lived in the country, you might be denied the franchise, if you were a woman or if you were an indigenous person.
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32. Writs for general election
The Governor-General in Council may cause writs to be issued for general elections of members of the House of Representatives.
After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof.
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Section 32 in practical terms says that the writs for an election will be issued at least ten days before the end of a parliamentary term. Other provisions of law which play together with this, generally mean that we have six week election campaigns in Australia; which is still mostly too long.
Political wonks and nerds even get to calculate the election calendar, beginning at the date of the last election.
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33. Writs for vacancies
Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-General in Council may issue the writ.
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Section 33 is by operation, the legal instrument which determines who gets to make the call to hold a by-election. Also, the use of the word "whenever" also seems to apply in the instance when all Members Of The House Of Representatives simultaneously become vacant, in that grand circus we call a general election.
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34. Qualifications of members
Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows:
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;
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.
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Twenty-one years of age was generally considered to be the age of legal majority; which says something a bit crazy because someone could have been conscripted and have been sent to die for the country, before they ever got the right to vote and have a say in the matter.
This section also contains a rather interesting piece of cultural sexism. The franchise in Australia was only extended to women in South Australia in 1895 and indeed at the Federation of the Commonwealth, many women still did not have the right to vote. The assumption that if someone does not have the right to vote, then they also do not have the right to run and sit as a member.
Various Acts Interpretation Acts and amendments to those acts have over the years corrected this blatantly sexist assumption and policy but the use of the word "he" without irony at all, is still telling of a time which has long since passed.
In think it interesting that even though the Commonwealth wasn't even a thing when this was passed, there is still a bit of nativism going on. Someone who wanted to be a Member of the very first House, was required to have been a resident since 1898. I imagine that that was to prevent Great Britain from sending over people to just swan in and take up a House seat. This is extended to five years for people outside of the British Empire.
Unlike the Qualifications of Members of both houses under Section 44, Section 34 does not appear to make any qualification that someone could not be a dual citizen. Interestingly, the idea that there was a separate Australian Citizenship as opposed to just being a citizen of empire, didn't even become formally a thing until after the Second World War.
This is where we get to dance in the land of imagination. The time probably already has passed when a Colony is likely to become a state but lets assume that through the weirdest series of events, Gibraltar decides to join the Commonwealth Of Australia and is admitted. Those people in theory would be instantly eligible to become Members of the House.
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35. Election of Speaker
The House of Representatives shall, before proceeding to the despatch of any other business, choose a member to be the Speaker of the House, and as often as the office of Speaker becomes vacant the House shall again choose a member to be the Speaker.
The Speaker shall cease to hold his office if he ceases to be a member. He may be removed from office by a vote of the House, or he may resign his office or his seat by writing addressed to the Governor-General.
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This is a procedural matter and it would seem obvious that in a room full of people that someone does need to at as the Speaker, President, or Chair of the meeting but there two considerations here.
Firstly that whoever controls the chair, controls the procedure of the House's business. It is nominally the Speaker of the House who determines what appears on the agenda of the House's business for the day. A particularly nasty Speaker, could force someone's matter never to be tabled.
Secondly, one of the traditions that was present in the British House of Commons, is that because the Speaker of the House effectively lost their normal vote on the floor of the chamber, they were then exempted from having to go through re-election in a general election. That tradition may have been expected to carry over into the Australian House of Representatives but it did not.
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36. Absence of Speaker
Before or during any absence of the Speaker, the House of Representatives may choose a member to perform his duties in his absence.
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Again, this largely has to do with the same procedural matters as Section 35 but as the House is an argumentative and contesting body, it makes sense that this needs to be explicitly spelled out. If the Speaker isn't there because they might be sick, dead, or stuck on the dismal dirt ruts that passed for roads in the 1900's, then someone else is to be given the big chair.
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37. Resignation of member
A member may by writing addressed to the Speaker, or to the Governor-General if there is no Speaker or if the Speaker is absent from the Commonwealth, resign his place, which thereupon shall become vacant.
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Even though being a member of parliament is a responsible job, these may be cause for someone to quit the post. Increasingly in state parliaments it is because that the member has found a golden parachute into a cushy corporate job and cites "family reasons"; which makes sense if you consider the great god Dollar as family. More sensibly it might be because of actual family reasons, such as an elderly relative or younger person needing acute care.
Section 37 doesn't even stipulate that there needs to be a reason. A member just might not like feel doing the job any more because they are bored, or because they find it too hard, or perhaps because they want to resign the seat so that someone else can take over (although this would risk losing the seat for the party in a by-election).
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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.
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No loafing. Show up. You've got two months.
I do not know why someone wouldn't want to show up to the parliament. Having a say on the legislation of the land seems like something that an obviously interested person would want to do.
Sickness and/or death are pretty good reasons why someone might not show up; so this provides that a by-election can be held in such cases.
Perhaps the most famous example of Section 38 being triggered involuntarily was that of the then Prime Minister Harold Hold, who was missing presumed drowned, presumed dead. Wild theories abounded including that he was taken by a Chinese submarine but perhaps the most buckwild theory was by someone called Damon in my Year 9 History class who suggested that Harold Holt was taken by a giant migratory squid.
The lesson from Section 38 is swim between the flags, lest Section 38 be triggered and they have to hold a by-election for your position.
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39. Quorum
Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the members of the House of Representatives shall be necessary to constitute a meeting of the House for the exercise of its powers.
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In 121 years, the Parliament has not provided otherwise. Currently, the minimum number of members required for a quorum is 51.
I should also point out that even during the height of the 1918-20 Flu Pandemic, the Second World War, and the current pandemic, there has never been an occasion where a quorum has failed to be met.
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40. Voting in House of Representatives
Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote.
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Again we look to the United States which has idiotic provisions with regards the filibuster and cloture motions. The Australian Constitution never enforced the two-thirds provisions that you'll find in the US Constitution, for the simple reason that the Australian Constitution is designed to get stuff done, whereas the US Constitution si deliberately designed to slow down and gum up the works.
It's hard enough to get two-thirds of people to agree on anything, much less key points of legislation. Australia already had six working parliaments; which in the case of NSW being the oldest, had been working for 46 years. Westminster Parliaments had long since established that a simple majority of members on the floor was enough to pass legislation.
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Procedurally, Part III says nothing really about the powers of the House, nor what it was expected to do. This Part of the Constitution and the mirror Part which details the Senate, is a bit like defining the equipment necessary to play cricket. These are the stumps; this is the ball; this is the width of the bat et cetera.
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