Part IV - Both Houses of the Parliament
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41. Right of electors of States
No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.
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Looking back, Section 41 is one of the most disgusting pieces of law which was ever passed in Australia. Read this carefully. It says that if people have the right to vote in a state election, then they also have a right to vote in a federal one. What if the inverse of this condition is true? Suppose that someone doesn't have the right to vote in a state election. That then means that they also do not have the right to vote federally either.
What this meant in real terms is that women in most states wouldn't have the franchise extended to them until the state parliaments changed the law and aboriginal people in Queensland in particular, were explicitly denied the right to vote federally because they couldn't vote in a state election.
Australia famously does not have a bill of rights in the Constitution. In most circumstances I think that this is a good idea because it means that if rights are discovered or invented, or other rights expire or should be withdrawn for the public good, then the sovereignty of the will of the people expressed through the parliament can change this through legislation. The problem is that the franchise is the prime means through which the sovereignty of the will of the people is expressed. After all, how do you know what people want unless you ask them.
A useful principle in the constitution of nations is that governments derive their just powers from the consent of the governed. Again, how is the consent of the governed arrived at, if not through means of asking for that consent. This is also why I think that the Electoral Act 1918 in defining voting as a civic duty and not a right (in Section 245) is the only sensible and just position. A right can be suppressed. A duty must be enabled to be fulfilled.
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42. Oath or affirmation of allegiance
Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.
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An oath is essentially a promise by a person to perform some act; which has been witnessed by a body corporate or some other authority. In this instance, the oath is one of allegiance and alignment, where the person who wishes to become an MP promises to do good for the parliament and the nation. To break the oath or affirmation of allegiance is to break one's promise to the parliament and that is seen as a very very serious offence; in fact more so than just a mere promise. If a person's word is fraudulent, then we have an instance which is very very serious indeed.
Having said that, the volume of thieves, scoundrels, bounders, cads, and knaves who occupy the benches of parliament is enough to make your hair curdle and your milk curl. Still, I suppose that's the way the ball crumbles and the cookie bounces.
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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
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Section 43 requires an MP if they want to sit in the other house, to resign their post and then contest that election and win or be appointed. This is fair enough. Most likely this is to prevent someone from the Reps from voting on legislation and then sitting in the Senate to vote on that same piece of legislation.
The latest and most recently famous case of Section 43 in action was at the 2022 election when Kristina Keneally resigned her Senate seat and unsuccessfully contested the House of Representatives seat of Fowler.
In 1967 when Harold Holt walked off into the ocean never to return, the Liberal Party had an immediate leadership vacuum. From 17th Dec 1967 until 10th Jan 1968, Australia had no Prime Minister but it wasn't like any pressing issues were going to come up over the Christmas break. The Liberal Party then selected John Gorton as the leader on January 9th 1968 and he was sworn in as Prime Minister on January 10th.
To date, Gorton is the only Australian Senator to be sworn in as Prime Minister; he would subsequently win Holt's vacant seat of Higgins at a by-election.
The constitution makes no mention of the Prime Minister or even if there needs to be one. Gorton resigned his Senate post purely through convention; with the assumption that he would win Holt's old seat. As Gorton won the Higgins by-election on 24th Feb 1968 with 69.40% of the vote, there wasn't even a need for second preferences. However, Section 43 provided that if he wanted the seat that Holt had occupied, that he needed to resign his Senate post; which he did.
That means that from 1st Feb until 24th Feb, Australia had a Prime Minister who wasn't even a member of parliament. We shall see later in the Constitution that this is perfectly fine because this falls within the three month window that someone can become a member without having a seat in Parliament.
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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.
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What a doozie!
The questions of whether or not someone "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", is generally taken to be something other than general wages or the old age, unemployment, disability pension, or similar. An old age pensioner or a teacher, does not have to resign from their pension or employment if they wish to pursue a job as a Member of Parliament.
Section 44(v) says that any person who “has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth” is disqualified from sitting as a member of parliament.
Peter Dutton, as recorded in the parliamentary register of interests, is the beneficiary of a discretionary family trust. The trust (via the trustee) owns two childcare centres in Queensland. Those childcare centres have agreements with the APS to provide childcare services in exchange for childcare subsidies.
Does Peter Dutton have a beneficial interest in a trust that has an agreement with the public service, which might trigger Section 44(v)? Who knows?
Dutton could argue the childcare centres receive a government subsidy on behalf of the parents and does not have a pecuniary arrangement with the Crown. However, if an agreement with the APS exists then it might appear as though Dutton have a position under profit. Why else run a for profit childcare centre?
As it stands, there has never been a referral by the House of Representatives to the High Court, as the Court of Disputed Returns, to answer the question. It might give rise to a disqualification but never asking the question means that his position is for now, safe.
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Section 44 became famous in the period of 2016-19 when a series of unfortunate incidents meant that a whole heap of MPs suddenly found themselves to be ineligible to sit in parliament and had to contest their seats all over again.
Back in 2017 there were seven cases of possible breaches of Section 44(i), when when seven members of parliament were found to have dual citizenship.
Scott Ludlam and Larissa Waters, both Greens Senators, resigned. National Party Senator Matt Canavan, deputy leader of the Nationals and Senator Fiona Nash, Deputy Prime Minister and Nationals leader Barnaby Joyce; as well as Nick Xenophon and One Nation Senator Malcolm Roberts, all had their cases referred to the High Court, through the Court of Disputed Returns.
On 27th Oct 2017, the High Court found in unanimous, in all seven cases that according to the "ordinary and natural meaning" of its language and according to Section 44 (i), that the fact of citizenship was disqualifying, regardless of whether the person knew of the citizenship or engaged in any voluntary act of acquisition. That now means that if anyone is entitled to dual citizenship, that they might be in trouble.
The specific clause at play was whether or not MPs were "entitled to the rights or privileges of a subject or a citizen of a foreign power"; which usually meant that they were entitles to foreign citizenship, by virtue of being born overseas and/or having parents and grandparents that were.
Suddenly, the question was being asked of the utility of having such a clause within the Constitution, especially given that more than half of the population was either born overseas or are the children of people that were. I for one definitely see the utility in this clause; not because I think that people who might be entitled to foreign citizenship are likely to be disloyal to the country but because Section 44 now acts as a kind of trap clause, which inadvertently makes sure that people have at least read the Constitution before wanting to become an MP.
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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
(iii) 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.
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The rules for what happens in the two houses if a seat becomes vacant, are different. The rules for how those seats actually get to become vacant in the first place, is the same.
In the House, a vacancy after someone has been disqualified will mean that that seat then becomes subject to a by-election. As we have seen, a former MP who has just been disqualified may then recontest the seat provided that they have removed the disability which has impeded their eligibility. That was the case with Barnaby Joyce.
In the Senate, the usual policy is for the state party of the seat which had just been made vacant, to fill the vacant seat with some other person, who may not have even been on the ballot at the previous election. This was the case with Kristina Kenneally.
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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.
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The sun of "one hundred pounds" per day at the rate of conversion in 1966 of 10/- to $1 works out to be $200/day.
Section 46 lay mostly dormant for quite some time until the passage of the Common Informers Act 1975 (which meant that the Parliament did provide otherwise) and even then it was not really all that important until David Gillespie was challenged for his eligibility.
Even then, the result of the decision in that case is that Section 46 and Common Informers Act /requires a prior finding of ineligibility by the House of Representatives or the Senate or the Court of Disputed Returns under the Commonwealth Electoral Act 1918. This is in keeping with Section 47 that a penalty should only be pursued once a finding of liability has been made. That is, a case has to exist before there can be a penalty exacted.
In the case of Malcolm Roberts, blogger Tony Magrathea began a High Court action in September of 2017; alleging that Roberts had sat in the Senate while disqualified. The case rattled its way through the court and on 24th June 2019, the High Court found the allegation proved and ordered Roberts to pay a penalty of $6,000 to Magrathea.
I do not know what the writers of the Constitution intended what Section 46 was supposed to do exactly but the fact that there have been test cases and even someone falling foul of it and being ordered to pay a penalty to a private person as Section 46 states, suggests that it works well.
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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.
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It seems a bit strange to me that Section 47 questions should be referred to the House in which the question of a disputed election arises to that same house. It is a bit like putting criminals in charge of a gaol, or thieves in change of a bank. I think that Section 47 by design sets up a conflict of interest because it wants to hold the sovereignty of the parliament as being responsible for that same sovereignty.
After laying out Sections 44-46, the security of whether or not someone should be able to sit in parliament is I think, rather compromised. Since the AEC only conducts elections and doesn't check the eligibility of members, then this section basically leaves parliament to police itself.
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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.
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If we assume the very long inflation rate of 4% (which appears to be the long rate from about 1 Anno Urbitae) then this works out to be $95,754; which looks very close to the current rate of AWOTE. It is notoriously difficult to get anything approaching a sensible AWOTE figure for the year 1901 but while searching thorough the archives of the Sydney Morning Herald, I found an advertised clerk's position at a bank paying £5/5/9 per week. That works out to be £274/19/- per year.
What this says to me is that the Commonwealth is going to pay over and above average wages for being a parliamentarian, with the expectation that a Member of Parliament will treat this like a full-time position because that's what it is. It isn't overly generous; which means that the captains of industry are less likely to want to sit, thus leaving behind a more representative sample relative to the population of candidates who want the job.
It must also be said that £400 per year will have bought you a very very nice house in the centre of any of the capital cities of that time, including bang in the middle of Melbourne where the first parliaments sat.
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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.
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Here we have the admission that in principle, the Australian Parliament is equal to the House of Commons but not equal to the House of Lords. It should also be noted that in 1901, appeals could still be made to the appellant courts of the House of Lords and the Privy Council et cetera.
Section 9 of the Bill of Rights 1689 suggests that the debates in parliament should not be questioned and that debates outside of parliament which relate to that also aught not to be questioned. However the doctrine of Parliamentary Privilege, that is the right for an MP on the floor of the parliamentary chambers to say literally anything and not face any law with regards defamation, sedition, et cetera, is an almost unique privilege attached with the extension of immunity of consequence; which is found in no other context that I can think of.
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There is an interesting aside here. In 1910, the United Kingdom Budget made allowances for things like old age pensions and attempted perhaps for the first time to begin building the welfare state. This was met with absolute ire and scorn from the House of Lords who point blank refused to pass the legislation. This caused a parliamentary crisis and it wasn't until some brokering from the King and the Commons, that the Parliament Act 1911 placed limits on what the House of Lords could block. The 1911 Parliament Act very heavily limited the veto power of the Lords and completely removed the Lords' ability to block supply and money bills from the Commons.
This does not apply in Australia. As Section 49 explicitly stated that the Australian Parliament has the "powers, privileges, and immunities" which "shall be those of the Commons House of Parliament of the United Kingdom" then the Australian Senate back then and still now, retained it's veto power over bills coming from the House of Representatives; including money bills (which is how we got to the 1975 Parliamentary Crisis).
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50. Rules and orders
Each House of the Parliament may make rules and orders with respect to:
(i) the mode in which its powers, privileges, and immunities may be exercised and upheld;
(ii) the order and conduct of its business and proceedings either separately or jointly with the other House.
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This is the underlying section which gives the houses the power to make and enforce their own Standing Orders and the Rules, Powers, Privileges, and Immunities therein.
Again, Section 50 in conjunction with Section 49 suggests that the two houses have the ability to make their own orders, rules and privileges but they had to start somewhere. Almost certainly and following Section 49, they probably would have just copied the standing orders from the British House of Commons.
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